N S Bindras Interpretation of Statutes

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1. Chapter 1
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IN Secondary Materials Content Type: Commentary; Publication: NS Bindra:
Intrpretation of Statutes, 11th Edition
2. Lawmaking is the domain of the Legislature

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3. Cases illustrating various Interpretative Techniques

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4. Limits on the judiciary while performing the interpretative role

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5. Interpretation as Complementary Law Making

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6. Reconstructing and Constructing the Law

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7. Conclusion
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8. Chapter 2
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9. Introduction
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10. What is Delegated Legislation?

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11. Limits on Delegated Legislation and Excess Delegation

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12. Scope of Courts Scrutiny in Delegated Legislation

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13. Forms of Subordinate Legislation

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14. Validity of Rules, Regulations and Bye-laws

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15. Regulations
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16. Executive Instructions
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17. Notifications
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18. Bye-laws
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19. Repugnancy between the Parent and Delegated Legislation

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20. Severability in Delegated Legislation

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21. Doctrine of Implied Powers
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22. Implied Obligations

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23. Conclusion
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24. Chapter 3
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25. Introduction
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26. Nature of Executive Power

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27. Policy Making by the Executive

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28. Justiciability of Powers Conferred on the Executive under the Constitution

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29. Judicial Appointments

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30. Supplementing the Executive

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31. Presumptions
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32. Chapter 4
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33. Statutes are Presumed to be Valid

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34. Statutes are Territorial in Operation

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35. Statutes are Presumed to be in Conformity with International Law

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36. Legislature does not commit a Mistake

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37. Legislature does not Waste its Words
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38. Words Interpreted in Ordinary Sense Unless Technical (cross - reference to common parlance rule in
construction of taxation statutes)
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39. Legislature Presumed to Know the Law, Judicial Decisions and General Principles of Law
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40. No Alternation in Law is Presumed

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41. Presumption in Case of Re-Enactment

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42. Presumption in case of changes in phraseology
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43. Vested Rights are Preserved

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44. Jurisdiction of Court presumed to not be excluded

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45. Presumption against Retrospectivity

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46. Conclusion
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47. Chapter 5
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48. Introduction
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49. Text of the Statute and its Significance

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50. Parts of Statutes

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51. Title of the Statute

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52. Title of a Chapter

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53. Preamble
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54. Interpretation Clause

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55. Headings
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56. Punctuations and Brackets

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57. Illustrations
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58. Proviso, Exception, Saving Clause

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59. Explanation
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60. Schedule
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61. Forms
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62. Erratum
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63. Conclusion
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64. Chapter 6
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65. Introduction
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66. Literal Rule of Interpretation and Golden Rule of Interpretation3

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67. Illustrations of the Literal Rule

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68. Golden Rule of Interpretation

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69. Mischief Rule of Interpretation

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70. Scope
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71. Strict and Liberal Construction 60

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72. Strict Interpretation

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73. When does the Question of Strict and Liberal Construction Arise?
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74. Non-Interpretive Considerations

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75. Presumption of Fairness and Hardship

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76. Conclusion
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77. Chapter 7
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78. Introduction
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79. Context
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80. Statement of Objects and Reasons

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81. Words in Statutes in Pari Materia

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82. Words Previously Judicially Interpreted

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83. Technical Meaning

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84. Surplusage
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85. Draftsmans Errors

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86. Noscitur a sociis

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87. Reddendo Singula Singulis

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88. Ejusdem Generis

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89. Conclusion
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90. Introduction
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91. Affirmative and Negative Words

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92. May
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93. Shall
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94. Test
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95. Statutes Pertaining to Official Action

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96. Conclusion
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97. Introduction
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98. Competence to Enact Retrospective Laws

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99. Applicability of the Rule to Substantive Rights

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100. Rights Accrued before Operation of Statute

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(IN) NS Bindra: Intrpretation of Statutes, 11th Edition
NS Bindra: Intrpretation of Statutes, 11th Edition
NS Bindra
NS Bindra: Intrpretation of Statutes, 11th Edition > NS Bindra: Intrpretation of Statutes, 11th
Edition > PART I THE INSTITUTIONAL REGIME OF INTERPRETATION > Chapter 1 Law Making
Roles of the Legislature and the Judiciary
Chapter 1 Law Making Roles of the Legislature and the Judiciary

Chapter 1Law Making Roles of the Legislature and the Judiciary
End of Document
Lawmaking is the domain of the Legislature
NS Bindra
The hallmark of the 19th and 20th century doctrines of interpretation has been that they premise themselves on the
principle that a court ought to interpret law as it stands.1 According to these doctrines, the function of a court is to
interpret the language of a statute,2 whereas it is for the legislature to make enactments and for the courts to
enforce such enactments.3 It must be borne in mind that the courts are not legislators, they have to carry out loyally
the directions of the legislature. They can only interpret law not make it. According to Lord Cokes formulation in
Heydons case,4 when a question arises as to the interpretation to be put on an enactment, what the court has to do
is ascertain the intent of them that make it, and that must of course be gathered from the words actually used in the
statute. Indian Courts often express this sentiment by relying on Lord Coke in Heydon and the following quote from
Magor & St. Mellons R.D.C.vNewport Corporation,5 The duty of the Court is to interpret the words that the
Legislature has used. Those words may be ambiguous, but, even if they are, the power and duty of the Court to
travel outside them on a voyage of discovery are strictly limited. This understanding of the limits on the judicial role
would imply that once a conclusion was reached that a particular measure was lawfully enacted by a legislative
authority covering the particular case in question, the hands of the court would be tied and the legislative measure
would have to be given its legitimate effect, unless mala fides or abuse of power was alleged.6
As observed by Costello J., in Abdur Rahman v Emperor,7 we have to administer and apply as accurately as lies in
our power the precise words of the relevant statutory enactment. An essentialist outlook suggests that it is the duty
of the court to construe the provisions of an enactment according to the language used by the legislature.8
Assertions of this outlook are rife across judgments from British India. For instance, in Sadananda Pyne v Harinam
Sha,9 their Lordships observed:
Courts must resist the temptation to change the law under cover of interpretation of law. If they use their power to interpret
law, to alter laws which they may not like, and to make new laws which they think should be made, that would be a corrupt
use of their power.
According to Salmond:10
The essence of the law lies in its spirit, not in its letter, for the letter is significant only as being the external manifestation of
the intention that underlies it. Nevertheless in all ordinary cases the courts must be content to accept the litera legis as the
exclusive and conclusive evidence of the sententia legis. They must in general take it absolutely for granted that the
legislature has said what it meant, and meant what it has said. Ita scriptum est is the first principle of interpretation. Judges
are not at liberty to add to or take from or modify the letter of the law, simply because they have reason to believe that the
true sententia legis are not completely or correctly expressed by it. That is to say, in all ordinary cases grammatical
interpretation is the sole form allowable.
However, while advocating the significance of the letter of the law to ascertain legislative intent, Salmond
accommodates two exceptions.. He opines:
There are two cases in which the litera legis need not be taken as conclusive, and in which the sententia legis may be
sought from other indications. The first of these case is that in which the letter of the law is logically defective, that is to say,
when it fails to express some single, definite, coherent, and complete ideathe second is that in which the text leads to a
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result so unreasonable that it self-evident that the legislature could not have meant what it has said To correct the sententia
legis on logical grounds is a true process of interpretation; it fulfils the ultimate or dormant, if not the immediate or conscious
intention of the legislature.
Taking from Salmond and other thinkers, an essentialist outlook towards interpretation suggests that the function of
the court is only to expound and not to legislate.11 The dominant purpose in construing a statue is to ascertain the
intent of the legislature,12 as expressed in the statute, considering it as a whole and in the context.
The most fair and rational method for interpreting a statute is by exploring the intention of the legislature through the
most natural and probable signs which are either the words, the context, the subject matter, the effects and
consequences, or the spirit and reason of the law. In the court of law what the legislature intended to be done or not
to be done can only be legitimately ascertained from that what it has chosen to enact, either in express words or by
reasonable and necessary implication. But the whole of what is enacted by necessary implication can hardly be
determined without keeping in mind the purpose or object of the statute. A bare mechanical interpretation of the
words and application of legislative intent devoid of concept or purpose will reduce most of the remedial and
beneficent legislation to futility. The courts, however, are not entitled to usurp legislative function under the disguise
of interpretation and they must avoid the danger of determination of the meaning of a provision based on their own
preconceived notions of ideological structure or scheme into which the provision to be interpreted is somehow
fitted.13 Therefore, the meaning of the statute is primarily to be sought in the words used in the statute itself which
must, if they are plain and unambiguous, be applied as they stand.14 Where the words of the statute do not form a
clear guide to the real meaning, it may be necessary to get an exact conception of the aim, scope and object of the
whole Act.15 One of the well-recognised canons of construction is that the legislature speaks its mind by use of
correct expression and unless there is any ambiguity, the court should adopt literal construction if it does not lead to
absurdity.16
The elementary principal of interpreting any word while considering a statute is to gather the mens or sententia legis
of the legislature i.e. if the words of a statute are clear and unambiguous, they themselves indicated what must be
taken to have been the intention of Parliament to expound their meaning according to their natural and ordinary
sense. The words themselves in such a case best declare the intention of the lawgiver, and there is no need to look
elsewhere to discover their intention or their meaning.17 Moreover, it is not open to the court to read into it
limitation which are not there, based on a priori reasoning as to the probable intention of the legislature. Such
intention can be gathered only from the words actually used in the statute; and in a court of law, what is
unexpressed has the same value as what is unintended.18 Hence, a construction which requires for its support
addition or substitution of words or which results in rejection of words has to be avoided.19 The court is not entitled
to alter the language of a section to fit in with the supposed intention of the legislature.20 The court has no right to
assume delegated legislative function, and if the meaning of the words used in a rule is clear, the court cannot re-
arrange the words to convey a meaning which it think they were intended to convey.21
An elaborate exposition of the limits on the judicial role has been made in the following observations of the Punjab
and Haryana High Court, in Roshan Lal GoswamivGobind Raj:22
The Courts, by supplying the omission in an Act of legislature, would be travelling far afield, and it would be open to serious
objection, when the Courts deviate front their real function of construction and enter upon legislation which is obviously
outside their purview. The Courts cannot say to themselves that through oversight the legislature has failed to provide for a
particular situation and, therefore, what was not done by the legislature may be done by the Court. This does not lie within
the judicial field. If the meaning of the statute is sensible without the omitted word, Courts will not be justified in making
interpolations. The general rule in all such cases, is that a Court may interpret doubtful or obscure phrases in a statute so
as to give effect to the presumed intention of the legislature and to carry out what appears to be the general policy of the
law. Courts cannot by construction cure a casus omissus, however, just and desirable it may be to supply the omitted
provision; and it will make no difference, if it appears that the omission on the part of legislature was a mere oversight; and
even if there be no doubt, that the Act would have been worded otherwise, if the attention of the legislature had been drawn
to the oversight at the time of the passing of the Act.
If fathoming legislative intent is such a major objective of the interpretational exercise, then is it permissible to call
for evidence from members of the legislature. Crawford placed reliance on Barlow v Jones23 and Badeau v United
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States24 to suggest that evidence from legislators ought to be inadmissible as evidence of legislative intent
because a member would have only personal knowledge of his own object and intention and that could not be
exalted to exhibit the object and intention of each House of the legislature or of a majority of the several hundred
members of each House in passing the statute. The evidence of the draftsman has also received similar treatment
because the intention of the draftsman may not have been heeded by the legislature in the final enactment. Hence,
the draftsman may substitute his intention for that of the legislature.25 This extensive sanctifying of the words of the
legislation, as well as adherence to plain meaning, reveals that the essentialist outlook towards interpretation would
not accommodate anything beyond what is written in the statute.
Thus Tindal C.J., unequivocally asserted in the Sussex Peerage case:26
the only rule for the construction of Acts of Parliament is, that they should be construed according to the intention of the
Parliament which passed the Act. This opinion was supported by Coltman J. in Boyd v Croydon Railway Co27 when he
ruled in construing an Act of Parliament, whether public, general or of nature of the Act now under consideration, we are
bound to ascertain, in as far as we can what was the intention of the legislature. We need not go to see what a popular
sense (of the expression) is but we must try to understand what the intention of the legislature is.
The primacy of legislative intention is yet again reiterated in the celebrated exposition of Higgins J in Amalgamated
Society of Engineers v Adelaide Steamship Co Ltd,28 wherein he observed:
The fundamental rule of interpretation, to which all others are subordinate, is that a statute is to be expounded according to
the intent of the parliament that made it, and that intention has to be found by an examination of the language used in the
statute as a whole. The question is, what does the language mean; and when we find what the language means, in its
ordinary and natural sense, it is our duty to obey that meaning even if we think the result to be inconvenient, impolitic or
improbable.
According to Lord Hannen, this legislative supremacy redoubled in countries which did not have a common law
history. In Labrador Company v Queen,29 reflecting on the nature of the judicial role in India, he opined:
I think, to say that the rules of prudence and practice or whatever else they may be called can have the force of law is to
supersede the express provisions of the legislature. That might perhaps have some force where the law is what is known
as Judge-made law. Here in India there is no Judge-made law, for the law is to be found in the Codes and the Judges can
only apply the law and do not make the law. To hold otherwise is to substitute for the enactments of the legislature the
opinions of the individual Judges.
The Allahabad High Court reiterated the primacy of legislative intention in Akbar Ali v Iswar Saran:30 when it stated
that it is not conducive to justice as dispensed by courts of law to ignore statutory provisions, particularly when
those provisions are mandatory in their nature, for the sake of what has been called justice of the matter. Courts
dispense justice in accordance with the procedure laid down by the legislature. This search for legislative intent
should not be divined by only examining the text of the statute. This need for a more purposive approach was
endorsed by the Supreme Court, in Union of India v SH Seth,31 when it observed that:
it must be remembered that though the words used are the primary, and ordinarily the most reliable sources of interpreting
the meaning of any writing, be it a statute, a contract, or anything else, it is one of the surest indexes of a mature and
developed jurisprudence not to make fortress out of a dictionary, but to remember that a statute always has some purpose
or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to its meaning.
1 . Abdul Husan v Mahmudi Begum AIR 1953 Lah 364, p 367, (1925) ILR 6 Lah 667; Chand Shanker v Sukh Lal AIR
1951 All 383 [LNIND 1949 ALL 138], p 386; Kidar Nath v Bhag Singh AIR 1937 Lah 504, p 506, (1937) ILR Lah 143;
Gopi Nath v Thakurdin AIR 1935 All 636.
2 . Harish Chandra v Rex AIR 1949 All 15 [LNIND 1948 ALL 16].
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3 . Sohan Lal v Atal Nath AIR 1933 All 846, p 849, (1934) ILR 56 All 172.
4 . (1584) 76 ER 637: cited in RMDC v Union of India AIR 1957 SC 628 [LNIND 1957 SC 37], p 631; Bengal Immunity
Co Ltd v State of Bihar AIR 1955 SC 661 [LNIND 1955 SC 122], p 674, [1955] 2 SCR 603 [LNIND 1955 SC 122], 632;
Harak Singh v Kailash Singh AIR 1958 Pat 581, p 583: Hindu Succession Act;Morisetty Bhadraih v Sales-tax Appellate
Tribunal(1964) 1 Andh WR 361; Hari Singh v EF Deboo AIR 1969 Goa 349; Sanghvi Jivraj Ghewar Chand v Secy,
Madras Chillies, Grain and Kirana Merchants Workers Union AIR 1969 SC 530 [LNIND 1968 SC 164]; Dhiraj Bala
Koria v Jethia Estate Pvt Ltd AIR 1983 Cal 166 [LNIND 1982 CAL 202].
5 . [1951] 2 All E.R. 839 : [1952] A.C. 189.
6 . Dominion (now Union) of Indian v Shirinbai A Irani AIR 1954 SC 596 [LNIND 1954 SC 92].
7 . AIR 1935 Cal 316, p 317, (1935) ILR 62 Cal 749.
8 . Dhirendra Nath v Nurul Huda AIR 1951 Cal 133 [LNIND 1951 CAL 148], p 136.
9 . AIR 1950 Cal 179 [LNIND 1949 CAL 82].
10 . Salmond, Jurisprudence, tenth edn, pp 170-73.
11 . District Mining Officer & Ors v Tata Iron and Steel Co & Anor (2001) 7 SCC 358 [LNIND 2001 SC 1542].
12 . Prithi Pal Singh v Union of India AIR 1982 SC 1413 [LNIND 1982 SC 123]; Keshavji Raviji & Co v Commr of Income-
tax AIR 1991 SC 1806 [LNIND 1990 SC 60], 1991 (1) JT 235 (SC), (1991) 2 SCC 231, [1991] 1 SCR 243, AIR 1991
SCW 1845, 1991 Tax LR 669; Bharat Singh v Management of Tuberculosis Centre, New Delhi AIR 1986 SC 842
[LNIND 1986 SC 105], (1986) 2 SCC 614 [LNIND 1986 SC 105], 1986 SCC 335 (Lab), (1986) 2 SCJ 129, (1986) 1 Cur
LR 414, 1986 Lab IC 850, (1986) 2 Serv LJ 63, (1986) 2 SCWR 6, (1986) 2 Lab LN 4, (1986) 2 UJ 339 (SC);
Raghunandan Saran Ashok Saran v Pearey Lal Workshop Pvt Ltd AIR 1986 SC 1682 [LNIND 1986 SC 126], (1982) 3
SCC 38, (1986) 30 DLT 77 [LNIND 1986 SC 126], 1986 MP RCJ 172, 1986 JT 415 (SC), (1986) 2 SCJ 413 [LNIND
1986 SC 126], 1986 Rajdhani LR 492, (1986) 2 Rent LR 176, (1986) 2 (UJ) 334 (SC); Maheshkumar v Addl Collector,
Hoshangabad AIR 1988 MP 210, 1988 MPLJ 6; Birla Jute Industries Ltd v Civiljudge AIR 1993 Raj 73; Ashim Ranjan
Das v Bimla Ghosh AIR 1992 Cal 44 [LNIND 1991 CAL 82], (1991) 1 CHN 229 [LNIND 1991 CAL 82], (1991) 1 CLJ
352, 1991 RCJ 82; B Mukerjee v State Bank of Bank of India AIR 1992 Cal 250 [LNIND 1991 CAL 344]; Chain Singh v
State of Rajasthan AIR 1991 Raj 17; Re Viscountess Rhondas Claim [1992] 2 AC 339 , p 397, per Lord Wrenbury;
Emperor v Noor Mahommad AIR 1928 Sind 1, p 9; Omar Tyab v Ismail Tyab AIR 1928 Bom 69, 73; Crawford, Statutory
Construction,art 158, p 244; Bramston v Colchester(1856) 25 LJMC 73, 119 ER 856; United States v Alpers 338 US
680-81, per Minton J; United States v Raymor 302 US 540, p 552, Iqbal Ahmad v Chief Justice AIR 1962 All 391
[LNIND 1960 ALL 109], 396; Maqbool Ansari v State of Bihar (1995) 2 BLJR 1114 (Pat); New India Assurance Co Ltd v
Sreedharan 1995 ACJ 373 (Ker); referring to Delhi Tpt Corpn v DTC Mazdoor Congress 1991 Supp (1) SCC 600;
Union of India v Deoki Nandan Aggarwal AIR 1992 SC 96 [LNIND 1991 SC 432]; Nirale Sugar Factory, Village and
Post, Bhandar AIR 1995 All 231 [LNIND 1995 ALL 49]; Shiv Shakti Co-op Housing Society v Swaraj Developers,
(2003) 1 SCC 659.
13 . District Mining Officer & Ors v Tata Iron and Steel Co & Anor (2001) 7 SCC 358 [LNIND 2001 SC 1542];
Bharathidasan University & Anor v All India Council for Technical Education & Ors (2001) 8 SCC 676 [LNIND 2001 SC
2123].
14 . Keshavji Raviji Co v Commr of Income-tax AIR 1991 SC 1806 [LNIND 1990 SC 60], 1991 (1) JT 235 (SC), (1991) 2
SCC 231, [1991] 1 SCR 243, AIR 1991 SCW 1854, 1991 Tax LR 669, (1984) Tax LR 89 (Mad) overruled.
15 . Roop K Sheory, Bombay v State AIR 1967 Punj 42; State v Khan AIR 1966 Bom 107 [LNIND 1965 BOM 11];
Jainulabdin alias Nalmmacha (Mhd) v State of Manipur 1991 Cr LJ 696 (Gau).
16 . Lt Col Prithvi Singh Bedi v Union of India AIR 1981 SC 1413; Reg v Judge of the City London Court [1982] 1 QB 273
, p 290, per Lord Esher; followed in Vacher & Sons Ltd v London Society of compositors [1913] AC 107, p 122, per
Lord Atkinson; Corpn of City of Victoria v Bishop of Vancouver Island AIR 1921 PC 240, per Lord Atkinson; Hayat
(Mhd) v Commr of Income-tax, Punjab (1931) ILR 12 Lah 129, AIR 1931 Lah 87; Logan v Burslow; The Guina 4 Moo
PCC 284, 13 ER 312; State of Manipur v AN Singh AIR 1957 Mani 1; American Home Products Corpn v Mac
Laboratories Pvt Ltd & Anor AIR 1986 SC 137 [LNIND 1985 SC 317], (1986) 1 SCC 465 [LNIND 1985 SC 317] Arb LR
555, (1986) Cur Civ LJ 50 (SC), (1986) 1 Cur CC 665, (1986) 1Supreme 585; relying on M Panthaih v Veeramapalla
AIR 1961 SC 1107 [LNIND 1960 SC 260], [1961] 2 SCR 295 [LNIND 1960 SC 260]; Usha Devi v Madhya Pradesh AIR
1990 MP 268 [LNIND 1989 MP 231]; Ram Adhin v Shyama Devi (1977) 14 ACC 264: 1977 Crilj 453.
17 . Sonya Dagdu v Manhu Dagdu 1980 Mah LJ 17 [LNIND 1979 BOM 77], AIR 1980 Bom 62 [LNIND 1979 BOM 77]; Lt-
Col Prithi Pal Singh v Union of India AIR 1982 SC 1413 [LNIND 1982 SC 123]; Lord Krishna Bank Ltd v Inspector-
General of Registration 1976 Ker LT 374 [LNIND 1976 KER 92]; Orissa Minor Oil Pvt Ltd v State of Orissa AIR 1983
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Ori 265 [LNIND 1983 ORI 33]; State of Kerala & Others v SC Sarvothama Prabhu (1999) 2 SCC 622 [LNIND 1999 SC
206]; Ombalika Das & Amar v Hulisa Shaw (2002) 4 SCC 539 [LNIND 2002 SC 255]; (1847) 1 HLC 1, 9 ER 649 (HL);
R v Doubledey (1961) 121 ER 350; Philips John v Commr of Income-tax, Calcutta (1963) 2 SCWR 35.
18 . Venkataramanna Dewan v State of Mysore AIR 1953 SC 255, p 267.
19 . Grasim Industries Ltd v Collector of Customs, Bombay (2002) 4 SCC 297 [LNIND 2002 SC 260]; Shiv Shakti Coop.
Housing Society v Swaraj Developers, (2003) 1 SCC 659.
20 . Dattatraya Baliram Naik v Rambhabai AIR 1962 Bom 236 [LNIND 1961 BOM 70], (1962) ILR Bom 452, 64 Bom LR
280.
21 . Natarajan v State of Kerala AIR 1961 Ker 318 [LNIND 1960 KER 237], (1961) ILR 1 Ker 134, 1960 Ker LJ 1109, p
1208.
22 . AIR 1963 Punj 532.
23 . 294 Pac 1106; United States v O Brein 20 L ED 672, p 688, 391 US 367, per Warren CJ.
24 . 21 Ct CJ 48 (US).
25 . Hilder v Dexter [1902] AC 474 (Halsbury, LJ.)
26 . (1844) 11 CI & Fin 85, p 143, 65 RR 11; Re Cargo, ex p Argos (1872) LR 5 PC 134, p 152; Wyatt v Great Western Rly
Co (1865) 34 LJQB 204, 122 ER 1856; A similar observation is made by Lord Mcnaughten in Vacher & Sons Ltd v
London Society of Compositors [1913] AC 107; Amanat Ali v Emperor AIR 1929 Cal 724: in the absence of ambiguity in
a statute, the courts will not resort to legislative history in determining its meaning; Packard Motor Co v National Labour
Relations Board 330 US 485, 91 L Ed 1024; the plain words and meaning of a statute cannot be overcome by a
legislative history which, thorough strained process of deduction from events of wholly ambiguous significance, may
furnish dubious basis for inference in every direction; Gams Co v Walling 324 US 244, 89 L Ed 931; Lord Krishna Bank
Ltd v Inspector-General of Registration 1976 Ker LT 374 [LNIND 1976 KER 92]; Maxwell, Interpreation of Statutes,
ninth edn, p 1.
27 . (1888) 7 LJCP 241, 132 ER 946; Fordya v Bridges(1847) 1 HLC 1, 9 ER 649 (HL); Govind Shripad v Srinivas Krishna
(1937) ILR Bom 655, AIR 1937 Bom 275, p 278; Banwarilal v Deshmukhuja AIR 1958 Assam 155-56.
28 . 28 CLR 129, pp 161 and 62; Archibald v Commr of Stamps 8 CLR 739, p 756.
29 . [1893] AC 104.
30 . AIR 1957 All 622 [LNIND 1957 ALL 118], p 632.
31 . (1977) 18 Guj LR 919, para 55.
End of Document
Cases illustrating various Interpretative Techniques
NS Bindra
The following cases illustrate the various interpretative techniques employed by the Courts to decide disputes and
interpret legislations in harmony with legislative intention.
In Abel vLee,32 the Court dealt with the proper construction of Section 3(4)of the Reforms Act, 1867, which laid
down that any man is entitled to be registered as a voter who, on or before July 20, had paid all poor rates that have
become payable by him upto the preceding fifth day of January. It appeared that the person in question had paid all
the rates of the current year, but had been excused, on account of poverty, from paying a rate that had been
payable in the preceding year. The question, therefore, was, whether the expression all poor rates that had become
payable includes the rate for which he had been excused or not. It was argued that if these words were construed in
their ordinary and strictly grammatical meaning so as to include all past rates, this absurdity might follow that the
claimant would lose his franchise for ever unless he paid up his old rate for which he had been excused, and that,
therefore, the language of the Act ought to be modified and the words construed in a restricted sense. Refuting the
argument, Willes J declared:
I utterly repudiate a notion that it is competent to a Judge to modify the language of an Act of Parliament in order to bring it
in accordance with his views as to what is right and reasonable.
An Indian case in this regard is ArakhitavRevenue Officer.33 The case related to Section 44 of the Orissa Land
Reforms Act, 1960, which provided for a right to appeal from the decision of the Revenue Officer, was the subject of
interpretation. The unamended Section contained the words shall be final, and the expression was deleted by an
amendment. The question before the Court was whether the effect of the Amendment was to ensure that Section
59 of the Act, which was a supervening provision for revision of appellate decisions, would apply to Section 44 after
the deletion of the words shall be final.
The Court held that an amendment by the legislature was indicative of legislative intent. In this factual matrix, the
legislature must have intended to keep proceedings under Section 44 as final, and must have further intended to
remove the application of the right under Section 59 to proceedings under Section 44.
In arriving at this decision, the Court observed that a statute as enacted cannot be explained by the individual
opinion of the legislators nor even by a resolution by the entire Legislature. Once the enacting process is over, the
Legislature becomes functus officio so far as that particular statute is concerned and it cannot itself interpret it.
Interpretation is left to the Court but where the Court is not able to gather the true legislative intention and the
interpretation given by it fails to bring out the true legislative intent, the Legislature intervenes and by amendment
makes its true intention clear and explicit. Hence, the Court held that the function of the court is to interpret and not
to legislate and the court cannot fill up a gap under the guise of interpretation.34
Section 19(1) of the Bombay Municipal Boroughs Act, 1925, provided that the president or vice-president shall hold
his office for a term not less than one year and not more than three years, which would also be the term of the
municipality. The legislation did not provide the term of office of the aforementioned officers if the term of the
municipality extended to beyond three years. In Kashinath BhidevState of Bombay.35 the Bombay High Court was
required to pronounce upon such a situation. The Court was required to consider the fate of the officers in the wake
of the extended term of the municipality.
Page 2 of 6
It was suggested by the counsel that the Court, in its interpretation, ought to modify the language of Section 19 in
order to account for such a situation. The Court refused to do so, and held:
This canon of construction can only be availed of when general words are used and those general words can be restricted
to the fitness of the matter, but this canon of construction cannot be availed of when the words used by the Legislature are
express and precise, and in this particular case the Legislature has used express and precise terms and provided that the
president shall hold his office for such term not less than one year and not exceeding three years. Under those
circumstances, it is impossible for us to hold that in a particular case a president can hold office for a term which is less
than one year. It will be construing Section19(1) contrary to the precise and exact words used by the Legislature. When
exact and precise words are used, they clearly show the intention of the Legislature, and it is not open to the Court to
speculate as to what the intention of the Legislature might be because a case not covered by the exact and precise words
used by the Legislature has arisen.
The Court resolved the problem in the case before it by relying on the proviso to the Section, which provided that
the president or vice-president would hold office till a successor was appointed. Using the proviso as an extension
of the main provision, the Court held that the offices would continue for as long as the municipality did, if no
elections were held to cover the period of extension. The Court thus devised a solution from within the enacted
provision.
In Collector of Central ExcisevPhoolchand,36 the controversy before the Court was whether pawnbrokers were
dealers of gold, which would impose an obligation on them to declare the amount and value of gold in their
possession due to the application of Rule 126-A(c) of the Defence of India (Amendment) Rules, 1963. The
respondent argued that no such obligation accrues on pawnbrokers, as they do not fall within the category of
dealers in context of the concerned Rule.
After surveying the relevant rules, the Court observed that where the legislature intended to impose a hardship, it
would do so with abundant clarity and would not let the provisions be nebulous and open to multiple interpretations.
On the basis of this observation, the Court held that the only obligation that one can derive from the plain language
of the rules in this regard is that a dealer who also indulges in pawnbroking must declare the amount and value of
gold in his possession. Hence, the obligation under Rule 126-A(c) did not apply to all pawnbrokers, and the
legislature did not will it to apply generally.
In this regard, the Court relied on the following observation from Maxwell:
It is unquestionably a reasonable expectation that when the legislature intends the infliction of suffering, or an
encroachment on natural liberty or rights, or the grant of exceptional exemptions, powers and privileges, it will not leave its
intention to be gathered by mere doubtful inference, or convey it in cloudy and dark words only, but will manifest it with
reasonable clearness
Judicial insistence on staying with the language used by the legislature is yet again on the fore in Piara Singh v
Mula Singh.37 The case dealt with Section 11 of the Indian Soldiers Litigation Act, 1918. The Section provided that
for Indian soldiers, the computation of the period of limitation prescribed for any suit would exclude the period from
4th August 1914 (World War I) till the time the soldier was serving in war conditions. The controversy related to
whether the benefit of Section 11 would accrue only in favour of men who were currently serving in the British
Indian Army, or would it extend to all men who had served as soldiers. This controversy became prominent in this
case because the plaintiff was admittedly no longer serving in the British Indian Army at the time of instituting the
suit.
The Court held that the language of the Section was plain in its import that the plaintiff in a suit could only avail of
Section 11 if he was serving in the army at the time of the institution of the suit, and his prior service in the army did
not automatically lead to accrual of benefit under Section 11 . In its application of the plain interpretation rule, the
Court rejected an argument of the plaintiff that beseeched the Court to take a beneficial construction of the Section.
In arriving at this decision, the Court held:

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it is, however, manifest that if the language of a statute is clear and unambiguous, the Court must give effect to it and has
no right to extend its operation in order to carry out the real or supposed intention of the legislature learned counsel for the
plaintiff asks us to place a beneficial construction upon the Section, but no rule of interpretation can be invoked for the
purpose of including cases plainly omitted from the natural meaning of the words.
In arriving at its decision the court relied on the following quote from Maxwell:
In short, when the words admit of but one meaning a court is not at liberty to speculate on the intention of the legislature,
and to construe them according to its own notions of what ought to have been enacted. Nothing could be more dangerous
than to make such considerations the ground for construing an enactment that is unambiguous in itself. To depart from the
meaning on account of such views is, in truth, not to construe the Act but to alter it. But the business of the interpreter is not
to improve the statute; it is to expound it. The question for him is not what the legislature meant, but what its language
means, i.e., what the Act has said that it meant. To give it a construction contrary to, or different from, that which the words
import or can possible import is not to interpret law, but to make it, and judges are to remember that their office is jus
dicere, not jus dare.
In Commissioner of Sales TaxvMangal Sen Shyam Lal38 the question before the Court was whether under Section
10(3-B) of the Uttar Pradesh Sales Tax Act, 1948, the starting point of limitation for the Department to prefer a
revision against the original assessment order would start from the date of assessment order or according to the
discretion of the assessing officer or the Department from the time that the assessing officer wishes to apprise the
Department about the passing of the assessment as in this case.
Section 10(3-B) of the Act read as follows:
The application under Sub-Section (3) shall be made within one year from the date of service of the order complained of but
the Revising Authority may on proof of sufficient cause entertain an application within a further period of six months.
Subsequent to establishing the limits of interpretation it had set for itself, the Court set to choose between two
possible constructions.One,whereby the starting point of limitation for a revision application should be the date on
which the order of assessment is served on the dealer; and the other the date of service of the order on the revision
applicant. The Court held that object of the Act and its other provisions would only permit the second of the
aforementioned construction, because it found parity between the dealer and the commissioner of Sales Tax.
The Court in arriving at its decision observed that it:
cannot scan the wisdom of the legislature in prescribing the date of service as the starting point of limitation. Nor can the
court refuse to give effect to it or substitute for it any other terminus which it thinks to be more reasonable, merely because
there is an apprehension of its abuse
Where that intent is clearly expressed in the language of the Act, there is little difficulty in giving effect to it. But where such
intent is covert and couched in language which is imperfect, imprecise and deficient, or in ambiguous or enigmatic, and
external aids to interpretation are few, scanty and indeterminate, the court may despite application of all its experience,
ingenuity and ratiocination, find itself in a position no better than that of a person solving a cross-word puzzle with a few
given hints and hunches. In such a situation a mere reference to the High Court of a question for opinion may not afford an
adequate solution. Only legislative amendment may furnish an efficacious and speedy remedy.
Even as the Courts adopted varied ways of expounding on their role, it has not abandoned the essentialist outlook
towards lawmaking. Thus in Padma Sundara Rao v State of Tamil Nadu, the Court one again reiterated that a:
statute is an edict of the legislature. The language employed in a statute is the determinative factor of legislative intent. The
first and primary rule of construction is that the intention of the legislation must be found in the words used by the legislature
itself. The question is not what may be supposed and has been intended but what has been said. While interpreting a
provision the court only interprets the law and cannot legislate it.39
A strict adherence to institutional essentialism is again in evidence in District Mining OfficervTata Iron and Steel
Co.40 The case related to the constitutional validity of the Cess and other Taxes on Minerals (Validation) Act, 1992.
Page 4 of 6
While the state argued that the object of the Act was to validate the collection of cess and taxes on the extraction of
minerals due till the date of validation, the respondents argued that the object of the Act was to validate 11 State
Acts that had been declared null and void by the Supreme Court because they permitted the state to collect cess
and taxes on extraction of minerals. This right to collect cess and taxes had been usurped by the Union through the
MMRDA, 1957, and hence the states were incompetent to do the same. The purpose of the Validation Act, the
State argued was to allow the State to collect cess and taxes prior to the date of the Supreme Court decision, which
invalidated the state Acts. The respondent argued that the object of the Act was not to allow a right of collection till
the concerned date, but to allow the state to retain the collection it had made till the concerned date.
To make a determination as to the true import of the Act, the Court extracted the legislative intent behind the
Validation Act. In the opinion of the Court, the intent behind the Act was to to validate the State Acts and actions
taken and things done thereunder. The Court relied on the preamble i.e. an Act to validate the imposition and
collection of cesses and certain other taxes on minerals under certain State laws, to hold that the import of the
expression imposition and collection was that the object of the Act was only to allow the states to retain the
collection it had already made, and not to allow for a fresh power of collection. Hence, the Court ruled in favour of
the respondents.
In this regard, the Court observed:
Nonetheless, the function of the Courts is only to expound and not to legislate. Legislation in a modern State is actuated
with some policy to curb some public evil or to effectuate some public benefit. The legislation is primarily directed to the
problems before the legislature based on information derived from past and present experience. It may also be designed by
use of general words to cover similar problems arising in future. But, from the very nature of things, it is impossible to
anticipate fully the varied situations arising in future in which the application of the legislation in hand may be called for,
and, words chosen to communicate such indefinite referents are bound to be in many cases lacking in clarity and precision
and thus giving rise to controversial questions of construction. The process of construction combines both literal and
purposive approaches. In other words the legislative intention i.e., the true or legal meaning of an enactment is derived by
considering the meaning of the words used in the enactment in the light of any discernible purpose or object which
comprehends the mischief and its remedy to which the enactment is directed.
In Special Land Acquisition OfficervKarigowda41 the question before the Court was whether a commercial or
production activity associated with the agricultural activity carried on by the agriculturalist could be used to calculate
the fair market value of the land under the mechanism provided in Section 23 of the Land Acquisition Act, 1894.42
The State argued that the Court cannot take into consideration the commercial activity which may result from, and
be indirectly incidental to, the agricultural activity particularly when both of them are carried on independent of each
other.
The Court held that the principle of literal or plain construction ought to be applied to Section 23, and as the
legislature had not awarded absolute discretion to courts in matters relating to awarding of compensation, the Court
cannot substitute its own judgment for the statutory provisions. The Court further held that the expression such
market value ought be read ejusdem generis to the provisions of Section 23(1)of the Act, as they would provide
meaning and relevancy to the guidelines which are to be taken into consideration by the courts for determining the
market value of the land. The Court further held that the expression shall used in Section 23 would have to be
construed as mandatory and not directory. On the basis of the principles invoked by the Court, it held that
compensation had to be determined strictly in accordance with the provisions of the Act, and the authority could not
go beyond the parameters laid down in the Act.
In Md. ShahbuddinvState of Bihar43 the question was whether the High Court, in exercise of its powers under
Section 9(6) of the Crpc, could shift the venue of Court of Session inside the District Jail without giving a right to be
heard to the accused. The Court had to interpret Section 9(6)to ascertain whether there was a requirement to
honouraudi alteram partem, or could the High Court exercise its power without providing any right to be heard.
Section 9(6) of the Crpc provides that the Court of Sessions shall ordinarily hold its sitting at such place or places
as the High Court may, by notification, specify; but, if, in any particular case, the Court of Session is of opinion that
it will tend to the general convenience of the parties and witnesses to hold its sittings at any other place in the
sessions division, it may, with the consent of the prosecution and the accused, sit at that place for the disposal of
the case or the examination of any witness or witnesses therein.
Page 5 of 6
The Court relied on the principle that the legislature is specially precise and careful in its choice of language. Thus,
if a statutory provision is enacted by the legislature, which prescribes a condition at one place but not at some other
place in the same provision, the only reasonable interpretation which can be resorted to by the courts is that such
was the intention of the legislature and that the provision was consciously enacted in that manner.
Keeping the aforementioned in context, the Court read the opening portion of Section 9(6)to hold that it explicitly
indicates that the power conferred on the High Court is the power to determine the place or places where the Court
of Sessions shall ordinarily hold its sittings. However, the use of the word but immediately afterwards had the effect
of creating an exception to the general rule stated in Section 9(6) . Hence, the condition of consent from the
prosecution and the accused, as appended to the exception, was strictly applicable only to the exception i.e.
change of venue of the trial by the Court of Sessions.
Thus the Court held that while the second half of Section 9(6)requires the Court of Sessions to afford the
prosecution and the accused an opportunity of hearing and to obtain their consent prior to shifting the venue of trial;
the omission of such a requirement in case of the High Court (first half of Section 9(6)) is to be construed as a
conscious decision by the legislature through which it intended to exclude such a requirement when this power is to
be exercised by the High Court.
Even as this deference to legislative intention is omnipresent, Courts do not perceive their own role as that of rule
spouting machines. An assertion of the Orissa High Court in Girish Chandra PodhanvAmrit Bewa brings home this
fact effectively. The case related to a suit by the respondent whereby he moved the the lower Court for a
declaration that he was the adopted son of Bhairlanji. The suit was decreed by courts below, and the petitioner
argued that the evidence of the witnesses as well as his written statement revealed that the cause of action arose in
1961, which was 11 years prior to the filing of the suit. Hence, the petitioner argued that the suit was barred by
limitation. The respondent claimed that the Court ought to not rely on facts and circumstances that were extraneous
to the plaint, and an interpretation of such facts was not required to make a determination on limitation. The Orissa
High Court disagreed with the respondent, and thereupon observed that a
judge is not a machine and is expected to take decision on matters by application of his intellect on proper understanding of
the facts presented before him. To act merely on the face value of the words without trying to know the true meaning or
import of the words by looking at the context, circumstances and the manner of expression, would be unrealistic and
undeserving of a judge.
Hence, on a consideration of the evidence and the written statement, the Court held that the suit was barred by
limitation and the decisions of the lower Court were overruled.44
The complexity of the judicial task of seeking legislative intention is also endorsed by Sutherland45 when he opines
that no single canon of interpretation can purport to give a certain and unerring answer to the question (of seeking
legislative intention). The question of meaning lies deeper than the law. It involves question of judgment too subtle
for articulation and issues of the transference of knowledge as yet unprobed by lawyers, scientists or psychologists.
Whilst primacy is accorded to the lawmaking role of the legislature; it is perceived to have a limited role in
interpretation. A pertinent observation on the limits of the legislature in the realm of statutory interpretation was
made by Pasayat J. in J.P. BansalvState of Rajasthan:46
Interpretation postulates the search for the true meaning of the words used in the statute as a medium of expression to
communicate a particular thought. The task is not easy as the language is often misunderstood even in ordinary
conversation or correspondence. The tragedy is that although in the matter of correspondence of conversation the person
who has spoken the words or used the language can be approached for clarification, the legislature cannot be approached
as the legislature, after enacting a law or Act, becomes functus officio so far as that particular Act is concerned and it
cannot itself interpret it. No doubt, the legislature retains the power to amend or repeal the law so made and can also
declare its meaning, but that can be done only by making another law or statute after undertaking the whole process of law-
making.
Page 6 of 6
32 . (1871) LR 6 CP 365.
33 . AIR 1977 Ori 19.
34 . SS Harishchandra Jain v Capt Inder Singh Bedi 1977 Jab LJ 312.
35 . AIR 1954 Bom 41 [LNIND 1953 BOM 51]-43.
36 . Collector of Central Excise v Phool Chand AIR 1968 AP 103 [LNIND 1966 AP 116], p 106, per Jagan Mohan Reddy
J.
37 . (1923) ILR 4 Lah 324, p 326.
38 . (1975) 4 SCC 35 [LNIND 1975 SC 140].
39 . Padma Sundara Rao (Deceased) & Ors v State of Tamil Nadu & Ors (2002) 3 SCC 533 [LNIND 2002 SC 201].
40 . (2001) 7 SCC 358 [LNIND 2001 SC 1542].
41 . (2010) 5 SCC 708.
42
.Section 23: In determining the amount of compensation to be awarded for land acquired under this Act, the Court shall
take into consideration-first, the market value of the land at the date of the publication of the notification under section
4, sub-section(1);
(Footnote No. Contd.)
secondly, The damage sustained by the person interested, by reason of the taking of any standing crops or trees which
may be on the land at the time of the Collectors taking possession thereof; thirdly, the damage (if any), sustained by the
person interested, at the time of the Collectors taking possession of the land, by reason severing such land from his
other land; fourthly, the damage (if any), sustained by the person interested, at the time of the Collectors taking
possession of the land, by reason of the acquisition injuriously affecting his other property, movable or immovable in
any other manner, or his earnings; fifthly, if in consequence of the acquisition of the land by the Collector, the person
interested is compelled to change his residence or place of business, the resonable expenses (if any) incidental to such
change; and sixthly, the damage (if any) bona fide resulting from diminution of the profits of the land between the time
of the publication of the declaration under section 6 and the time of the Collectors taking possession of the land.
43 . (2010) 4 SCC 653.
44 . De Facto Court And Judges Girish Chandra Podhan v Amirt Bewa(1980) 50 Cut LT 48.
45 . Sutherland, Statutory Construction, vol 2, third edn, p 314.
46 . J.P. Bansal v State of Rajasthan AIR 2003 SC 1405 [LNIND 2003 SC 322].
End of Document
Limits on the judiciary while performing the interpretative role
NS Bindra
Modification of the Language of the Statute
Courts must resist the temptation to change the law under cover of interpretation. If courts of law use their power to
interpret law, to alter laws which they may not like, and to make new laws which, they think, should be made, that
would be a corrupt use of their power. Courts have to observe constant vigilance against such corrupt use of power
by themselves.
The judiciary should carefully refrain from extending their powers on the grounds of public policy, that is to say, of
expendiency, and thus encroach on the province of the legislature. It is better that the public, if it is of the opinion
that a certain course is opposed to public policy, should make its view clear through constitutional channels, i.e., the
legislature.47
On the judiciarys power to modify the language of a statute, Lord Brougham incisively observed in in Crawford v
Spooner:48
we cannot aid the legislatures defective phrasing of the statute. We cannot add, and mend, and by construction make up
deficiencies which are left there, it is not for the court to dispense with or suspend the operation of a part of a statute, and
thus usurp the function of legislature.49
In a similar vien, Tindal C.J. observed in Everett v Wells:50
it is our duty neither to add to nor to take from a statute unless we see good reason for thinking that the legislature intended
something which it has failed precisely to express.
Hence, the import of this decision and others of the time would be that the introduction of lacunae unconsciously by
the legislature, or its improvidence, or lack of sufficient forethought could only be cured by it. The courts had no
power to defeat the plain intention of the legislature, and the result of the legislatures lack of thought in drafting
would not affect or broaden the power of the judiciary to interpret the provision otherwise.51 It is prudent of the
courts to assume that lawmakers, as representatives of the people, enact laws which echo the views and
aspirations of the people, and which society considers fair, equitable and suitable.52
In Provincial Govt, Central Provinces and BerarvHabib Mahommad,53 a notification to give effect to the penal
provisions of the Cotton Cloth and Yarn (Control) Order, 1943 was issued, and it read as follows: in pursuance of
Clause 23, Cotton Cloth and Yarn (Control) Order 1943 the Provincial Government is pleased to authorise all
District Magistrates in the Central Provinces and Berar within their respective jurisdiction to sanction prosecutions
for an offence punishable under the said Order.
The respondent was charged and was sought to be prosecuted under the Order. He argued in the trial Court that
the notification was meaningless because the Order did not specifically provide for any punishment for the
contravention of any of its provisions. The trial Court agreed with the respondent. The High Court agreed with the
lower Court in as much as it held that the notification was meaningless, and held that the contravention of any of the
Page 2 of 3
provisions of the Order was punishable under Rule 81(4) of the Defence of India Rules, 1962. Hence, the relevant
portion of the notification ought to have read as for the contravention of any of the provisions of this Order
punishable under Rule 81(4), Defence of India Rules.
The High Court considered whether it was appropriate for the Court to read the notification leaving out the last
clause which is meaningless, or to add to words to it which would give it meaning in consonance with the intention
conveyed by the earlier part of the notification. Citing various English authorities, the Court expounded on its role
and held that:
it is perfectly open to this court to ignore the clause for an offence punishable under the said Order since it does not destroy
the effect of the preceding part of the notification which is perfectly plain in meaning and capable of taking effect.
Hence the Court held that the notification ought to read as intending to authorise the district magistrates to sanction
prosecution for the contravention of any of the provisions of that Order which are punishable under Rule 81(4) of
Defence of India Rules, and it need not be struck down.
Policy of a statute and limits on interpretation
On the point of legislative policy, Lord Macnaughten observed while delivering the judgment in Vacher & Sons Ltd v
London Society of Compositors:54
A judicial tribunal has nothing to do with the policy of any Act which it may be called upon to interpret. That may be a matter
for private judgment. The duty of the court, and its only duty, is to expound the language of the Act in accordance with the
settled rules of construction.55
Street suggests that the wisdom or expediency or policy of an Act, lawfully passed, was the province of the
statesman and not of the courts or the lawyer to discuss, and the legislature ought to determine what was best for
the public good through legislative enactments.56 A species of this general proposition would suggest that courts
ought to administer the law as it stands and should not raise concerns over the effect that the enactment may have
upon the fiscal policy of the government. If a particular provision of law was so defective that if enforced, it would
necessarily cause loss to government revenue, it is the business of the legislature to amend it.57
47 . Hoondraj Mithomal v Emperor 26 Cr LJ 243, 84 IC 58.
48 . 4 MIA 179, p 187; Gurdial Singh v Central Board, Local Committee, Sri Darbar Sahib (1928) ILR 9 Lah 689, p 698;
Partapa v Bishna AIR 1937 Lah 558.
49 . Ajit Kumar Roy v Surendra Nath Ghose AIR 1953 Cal 733.
50 . [1841] 133 ER 747; Vickers Son& Maxim v Evans [1910] AC 444, per Lord Loreburn; Abhayanand v Rameshwar AIR
1930 Pat 395,402, (1930) ILR 9 Pat 314, p 329,: words not to be found in a section may be supplied by necessary
implication, if the context so requires; Ram Sarup v Gaya Prasad AIR 1952 All 610 [LNIND 1950 ALL 337], ILR 48 All
175.
51 . Garnett v Bradley [1878] 3 AC 944 , p 961; Hakam Khuda Yar v Emperor AIR 1940 Lah 129, p 132, (1940) ILR Lah
242; Mohd Yaqub Khan v Azizunnissa (1936) ILR 11 Luck 376, AIR 1935 Oudh 347, p 439: unless there are strong and
adequate grounds for it.
52 . Bhudan Singh v Nabi Bux AIR 1970 SC 1880 [LNIND 1969 SC 283].
53 . AIR 1947 Nag 45.
54 . [1913] AC 117 -18.
55 . Amalgamated Society of Engineers v Adelaide Steamship Co Ltd 28 CLR 129, p 142.

Page 3 of 3
56 . Street on Ultra Vires 1930 p 439-40; Madho Saran v Emperor AIR 1943 All 379, p 386, (1944) ILR All 42; Salig Ram v
Emperor (1943) ILR All 238, AIR 1943 All 26, p 36; Harish Chandra v Rex AIR 1949 All 15 [LNIND 1948 ALL 16];
Mohd Hayat v Commr of Income-tax AIR 1931 Lah 87, p 91, (1931) ILR 12 Lah 129; Chand Shankar v Sukhlal AIR
1951 All 383 [LNIND 1949 ALL 138], p 386: so long as a distinction is found to exist according to the recognised rules
of interpretation, it has to be recognised and effect has to be given to it; Abdul Majid v Nayak AIR 1951 Bom 440
[LNIND 1951 BOM 67].
57 . Gainda Mal v Madan Lal AIR 1948 EP 30, p 33.
End of Document
Interpretation as Complementary Law Making
NS Bindra
Even as institutional essentialism has exercised dominant control in judicial articulation of their role it has not been
the exclusive perspective from which Courts have perceived the lawmaking exercise.
Thus, Beaumont C.J. alluded to a more layered and creative role of the judge, in Emperor v Somabhai
Govindbhai:58
But I protest against the suggestion that a Judge, construing any Act of Parliament, is a mere automation whose only duty
is to give out what he considers to be the primary meaning of the language used. A judge must always consider the effect
of any construction which he is asked to put on an Act of Parliament, and if he comes to the conclusion that a particular
construction leads to a result which he considers irrational or unfair, he is entitled, and indeed bound, to assume that the
legislature did not intend such a construction to be adopted, and to try to find some more rational meaning to which the
words are sensible.
The flaw in strict adherence to legislative intent has been highlighted by Lord Watson in Salomon v Salomon,59
where he observed that intention of the legislature is a common but very slippery phrase. Popularly understood, it
may signify anything from intention embodied in positive enactment to speculative opinion as to what the legislature
probably would have meant, although there has been an omission to enact it. In a court of law or equity, what the
legislature intended to be done or not to be done can only legitimately be ascertained from what it has chosen to
enact, either in express words or by reasonable and necessary implication. Courts have observed that a judge is
not a variety of impersonal calculating machine, who merely applies the letter of the law. He is expected to pay due
thought to a limited extend to the policies which he believes to represent the sober second thought of the
community that framed the Constitution as suited to inarticulate minds of that community.60
The following observation from Nokes v Doncaster Amalgamated collieries61 expresses a more complementarian
role of the judiciary in interpretation. It rejects the plain meaning rule as the sole guide of the judiciary and contends
that the judiciary indulges in choice-making in the course of interpretation. The Court observed:
we must not shrink from an interpretation which will reverse the previous law, for, the purpose of a large part of our statute
law is to make lawful that which would not be lawful without the statute, or conversely, to prohibit results which would
otherwise follow. Judges are not called upon to apply their opinions of sound policy so as to modify the plain meaning of
statutory words, but where, in construing general words, the meaning of which is not entirely plain, there are quite adequate
reasons for doubting whether the legislature could have been intending so wide an interpretation as would disregard
fundamental principles, then we may be justified in adopting a narrower construction. At the same time, if the choice is
between two interpretations, the narrower of which would fail to achieve the manifest purpose of the legislation, we should
avoid a construction which would reduce the legislation to futility and should rather accept the bolder construction based on
the view that Parliament would legislate only for the purpose of bringing about an effective result.
On a similar note in Harish ChandravR the Court started to spelled out the circumstances in which modification of
the language of a statute was permissible62 in the following terms:
Where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest contradiction of
Page 2 of 6
the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice, presumably not
intended, a construction may be put upon it which modifies the meaning of the words, and even the structure of the
sentence. This may be done by departing from the rules of grammar, by giving an unusual meaning to particular words by
altering their collocation, by rejecting them altogether, or by interpolating other words, under the influence, no doubt, of an
irresistible conviction that the legislature could not possibly have intended what its words signify, and that the modifications
thus made are mere corrections of careless language and really give the true meaning. Where the main object and
intention of a statute are clear, it must not be reduced to a nullity by the draftsmans unskilfulness or ignorance of the law,
except in a case of necessity, or the absolute intractability of the language used. The rules of grammar yield readily in such
cases to those of commonsense.
Lord Denning has delineated the judicial role qua interpretation in the landmark case of Seaford Court
EstatesvAsher in the following manner:63
Whenever a statute comes up for consideration it must be remembered that it is not within human powers to foresee the
manifold set of facts which may arise, and even if it were, it is not possible to provide for them in terms free from all
ambiguity (A judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of
finding the intention of the parliament, and he must do this not only from the language of the statute but also from a
construction of the social conditions which gave rise to it and of the mischief it was passed to remedy and then he must
supplement the written word, so as to give force and life to the intention of the legislature. Put into homely metaphor it is
this: A judge should ask himself the question how, if the makers of the Act have themselves come across this ruck in the
contexture of it, they would have straightened it out. He must then do what they would have done. A judge should not alter
the material of the Act [as] woven, but he can and should iron out the creases.
The complementarian role of the judiciary, as envisaged by Beaumont and Denning, was fleshed out in the
observations of Lord Simon of Claisdale while delivering the judgment in RugbyJoint Water Board v Foothit.64 He
held as follows:
The task of courts is to ascertain what was the intention of parliament, actual or to be imputed, in relation to the facts as
found by the court (But on scrutiny of a statutory provision, it will generally appear that a given situation was within the
direct contemplation of the draftsman as the situation calling for statutory regulation, this may be called the primary
situation. As to this, parliament will certainly have manifested an intention, which is known as the primary statutory
intention. But situations other than the primary situation may present themselves for judicial secondary situations. As
regards these secondary situations, it may seem likely in some cases that the draftsman had them in contemplation, in
others, not. Where it seems likely that a secondary situation was not within the draftsmans contemplation, it will be
necessary for the court to impute an intention to the parliament in the way I have prescribed, that is, to determine what
would have been the statutory intention if the secondary situation has been within the parliamentary contemplation (a
secondary intention).
The case of Rattan ChandvAskar Nawaz Jung65 is an example where the Court has assumeding a more
complementarian role. The case dealt with the estate of Nawab Salar Jung III, a person of prominence in the
erstwhile state of Hyderabad. Subsequent to his death, his estate was contested by two of his relatives, and to
resolve the controversy, the Nizam of Hyderabad established a committee to administer the estate of Salar Jung.
After the accession of Hyderabad, the government of India continued the mandate of the committee through the
Nawab Salar Jung Bahadur (Administration of Assets) Act, 1950.
The plaintiff-petitioner had made advances to Sajjid Yar Jung, who claimed to be one of the cousins of the Nawab,
to establish his claim to the estate in question. In this regard, the plaintiff-petitioner and Sajjid Yar Jung concluded
an agreement which inter alia contained an obligation on the plaintiff to use his influence with the Central and State
government to secure the claims of Sajjid Yar Jung, and an obligation on Sajjid Yar Jung to give the plaintiff-
petitioner a share of one anna per rupee that he inherited from the estate. This obligation led the civil court and the
High Court to declare that the agreement was opposed to public policy and hence, unenforceable. The plaintiff-
petitioner appealed to the Supreme Court.
The Supreme Court held that the lower Courts had been right, and rejected the argument of the plaintiff-petitioner
that the doctrine of public policy had been incorrectly applied by lower Courts. The court held that the doctrine had
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to be dynamically applied, and while this may lead to judicial legislation, it was within the permissible ambit of
interpretation that the judiciary exercised.
The Court observed:
The legislature often fails to keep pace with the changing needs and values nor is it realistic to expect that it will have
provided for all contingencies and eventualities. It is, therefore, not only necessary but obligatory on the courts to step in to
fill the lacuna. When courts perform this function undoubtedly they legislate judicially. But that is a kind of legislation which
stands implicitly delegated to them to further the object of the legislation and to promote the goals of the society. Or to put it
negatively, to prevent the frustration of the legislation; or perversion of the goals and values of the society. So long as the
courts keep themselves tethered to the ethos of the society and do not travel off its course, so long as they attempt to
furnish the felt necessities of the time and do not refurbish them, their role in this respect has to be welcomed.
The fallacy of exclusive reliance on the plain meaning of the statute as the intention of the legislature has been
dealt with in ChajjoovRadhey Shyam.66 The controversy was about Section 476 of the Crpc which ordinarily
appeared to give a right of appeal to an applicant on whose application the Court had refused to make a complaint
and also to a person against whom a complaint has been made. The provision stated that when a complaint was
filed, findings as to the expediency in the interests of justice of filing such a complaint had to be recorded, and the
complaint was supposed to be made subsequent to the aforementioned recording of filings. The portion of the
Section that courted controversy was complaint has been made. The Court had to decide whether the Section
contemplated the passing of a separate order that stated that a complaint had been made, or whether the recording
of findings amount to making of a complaint. This controversy gained prominence as the latter construction would
give a right to appeal to the person complained against as soon as findings are recorded, whereas the former
construction would only allow a right to appeal if a formal order is passed.
The court surveyed previous cases on interpretation extensively, to provide a right to appeal to both the person
whose complaint has been rejected, and the person against whom a complaint had been made. The Court held that
the latter construction was more consonant with the intention of the legislature and hence, upheld it over the former
construction.In reaching this decision, the Court observed:
on the circumstances when the ordinary rule of giving plain meaning to the words given in the statute is obviously
destructive of the apparent intent of the Legislature, it has to be departed from and the intent of the Legislature has to be
searched for from the context of the statute under interpretation. There are two pitfalls in departing from the rule of plain
interpretation: the Court may enter into the domain of legislation or, what is sometimes called, be guilty of judicial
legislation; or it may interpret to give effect to its own idea as to what the law ought to be rather than find what the law
actually is. These pitfalls can be avoided if attention is concentrated in finding out the true intention of the Legislature. If that
very giving of a finding under Section 476 (1) is treated as amounting to the making of the complaint and the passing of an
order at the time of the giving of the finding is taken to be implicit in the provisions of Section 476, as we think it is, the
Court would neither be legislating nor interpreting the law as it should be rather than as it is, but it would be putting into
force the intention of the Legislature.
The need for judicial interpretation to complement the legislature in laying down the law also comes to the fore in
Rajkot Municipal Corporation v Manjulben Jayantilal Nakum.67
A roadside tree fell on a person who was walking on the footpath, causing injuries to him and eventually leading to
his death. A suit was filed against the appellant corporation for damages to the extent of Rs 1,00,000/-. The
controversy before the Court was whether there was a statutory duty of the corporation under the Bombay
Provincial Municipal Corporation Act, 1949, to check the healthy conditions of trees periodically, and whether non-
compliance with this duty paved the way for liability due to negligence. The Court extensively surveyed the law of
torts and extracted the legislative intent, and held that the duty alleged by the respondent could be read into the Act.
Hence, the municipal corporation was liable to pay damages.
In arriving at this conclusion, the Court observed:
The court is required to consider three factors, that is, the context and the object of the statute, the nature and precise
scope of the relevant provisions and the damage suffered not of the kind to be guarded against. The object of the Act is to
promote facilities of general benefit to the public as a whole in getting the trees planted on roadsides, the discharge of
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which is towards the public at large and not towards an individual, even thought the individual may suffer some harm. The
Act does not provide for any sanctions for omission to take action; ie, planting trees or their periodical check-up when
planted. By process of interpretation, the court would not readily infer creation of individual liability to a named person or
cause of action to an individual, unless the Act expressly says so. While considering the question whether or not civil
liability is imposed by a statute, the court is required to examine all the provisions to find out the precise purpose of the Act,
scope and content of the duty and the consequential cause of action for omission thereof. Action for damages will not lie in
the suit by an injured person if the damage suffered by him is not of the kind intended to be protected by the Act.
The decision and observations of the Court in K.A. AbbasvUnion of India68 exhibit the limits of abiding by
legislative intent. The controversy before the Court was the constitutional validity of Section 5 -B of the
Cinematography Act and Section 292 of the IPC, 1860. The petitioner alleged that censorship of cinematographic
materials, as mandated by these provisions, was in violation of Article 19 (1)(a) and wasnt saved by Article 19 (2) .
This controversy arose in context of a short film, portions of which were directed to be censored because they
showed the brothels of Bombay.
The Court rejected that the legislation suffered from vagueness and uncertainty, as the expressions used in the Act
had specified the species of expression that could be censured by the state. However, the Court held that the object
of the Act was being defeated in this case, as censorship, while necessary, could not be used to defeat the artistic
value of a film, particularly when it dealt with aspects of social life.
In the context of the role of the Court in interpretation, the Court held:
The real rule is that if a law is vague or appears to be so, the court must try to construe it, as far as may be, and language
permitting, the construction sought to be placed on it, must be in accordance with the intention of the legislature. Thus if the
law is open to diverse construction, that construction which accords best with the intention of the legislature and advances
the purpose of legislation, is to be preferred. Where however the law admits of no such construction and the persons
applying it are in a boundless sea of uncertainty and the law prima facie takes away a guaranteed freedom, the law must be
held to offend the Constitution. The invalidity arises from the probable misuse of the law to the detriment of the individual. If
possible, the court instead of striking down the law, may itself draw the line of demarcation where possible, but the effort
should be sparingly made only in the clearest of cases.
Krishna Iyer J. delineated the judicial role in the context of balancing interests between the litigants and the
phraseology of the statute. He observed:69
The realism of our processual justice bends our jurisprudence to mould, negate or regulate reliefs in the light of exceptional
developments having a material and equitable import, occurring during the pendency of the litigation so that the Court may
not stultify itself by granting what has become meaningless or does not, by a myopic view, miss decisive alterations in fact-
situations or legal positions and drive parties to fresh litigation whereas relief can be given right here. The broad principle,
so stated, strikes a chord of sympathy in a court of good conscience. But a seeming virtue may prove a treacherous vice
unless judicial perspicacity, founded on well-grounded rules, studies the plan of the statute, its provisions regarding
subsequent changes and the possible damage to the social programme of the measure if later events are allowed to
unsettle speedy accomplishment of a re-structuring of the land system which is the soul of the whole enactment. No
processual equity can be permitted to sabotage a cherished reform, nor individual hardship thwart social justice (
Another instance of the judiciary delineating its role as more creative and involving more than merely applying law
can be seen in Jaswant KaurvState of Haryana.70 The petitioner sought to challenge some of the provisions of the
Haryana Ceiling on Land Holdings Act, 1972 on the basis of Part III of the Constitution. The Court held that the
impugned statute had been brought under the protection of the IX Schedule, which made it immune from a Part III
challenge because of the protection granted to it by Article 31B of the Constitution.
In the course of the case, an argument was raised by the petitioner that the provisions of the Act were vague and
mutually inconsistent, the effect of which would be to make them ultra vires Part III of the Constitution, and that the
vagary and inconsistency in the provisions would desist protection of these provisions by Article 31A and Article
31B of the Constitution.
The Court disagreed with this argument, and held that it was the duty of the judiciary to interpret provisions of an
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Act beyond the vagueness and inconsistency introduced by the draftsman, and the judicial role cannot only be
restricted to discovering the shortcomings of a provision and declaring it ultra vires. In reaching this conclusion, the
Court observed:
It is a misinterpretation of the judicial function to helplessly and indifferently abstain from the task of interpreting the
provisions of a statute on the ground that the language is vague. It is not the judicial function to be deterred by the obscurity
of the expression of the draftsman. The courts task is more constructive than that. It is the duty of the court in relation to
each forensic situation to examine the language of the law, the context in which it was made, to discover the intention of the
legislature and to interpret the law to make it effective and not to frustrate the legislative intent. To interpret the law the court
must, and it can always call in aid the well-known canons of interpretation, namely, rule of harmonious construction, special
to prevail over general, amendment to prevail over the original, etc. The judge cannot shrug his shoulders and remain
placidly content with the observations that the provisions are irreconcilable.71
The necessity of the court to complement the work of the legislature also influenced the decision in G. Karmegam
and Others v Joint Sub-Registrar, Iv, Gowri Plaza, Madurai and others72 where the Court was required to address
how to deal with undervalued instruments of conveyance.Section 47-A (1) of the Registration Act provides that, If
the Registering Officer appointed under the India Registration Act, 1908 (Central Act XVI of 1908) while registering
any instrument of conveyance, exchange, gift, release of benami right or settlement, has reason to believe that the
market value of the property which is the subject matter of conveyance, exchange, gift, release of benami right or
settlement, has not been truly set forth in the instrument, he may, after registering such instrument, refer the same
to the Collector for determination of the market value of such property and the proper duty payable thereon.
The court, then, drawing from Salomon v A Salomon & Co. Ltd. [1897] AC 22, 38 HL, noted that the intention of the
legislature could well be:
a speculative opinion as to what the legislature would have meant, although there has been omission to enact it. It required
that before interpreting a statute, the Court must be abundantly sure of three matters: (1) the intended purpose of the
statute or provision in question; (2) that by inadvertence the draftsman and Parliament failed to given effect to that purpose
in the provision in question; and (3) the substance of the provision Parliament would have made, although not necessarily
the precise words Parliament would have used, had the error in the Bill been noticed. (Principles of Statutory Interpretation,
10th Edition, 2006, page 73) Taking all these factors into account the Court read the restriction of reasonable time into the
text of the statute
58 . 40 Cr LJ 97, p 100, 178 1C 588.
59 . [1897] AC 22; quoted by Ramaswami J in Hans Raj v Dave [1969] 2 SCR 253 [LNIND 1968 SC 301], p 259: the
courts function is not to say what the legislature meant but to ascertain what the legislature has said it meant;
TataChemicals Ltd v Kailash AIR 1964 Guj 265, p 276, per Bhagwati J; Trolley Draymen and Carters Union of Sydney
and Suburbs v Master Carriers Assn of NSW (1905) 2 CLR 509, pp 521 and 22; ] airamdas v Regional Tpt AIR 1957
Raj 312 [LNIND 1957 RAJ 208], p 316; Rashid Khan v Maltibai 1980 Mah LJ 428 [LNIND 1979 BOM 195]; C Unni
Nedumanaged Thinanlia Puthees Vedu v State of Kerla1983 EFR 242 (Ker).
60 . Rabindranath Malick v Regional Passport Officer AIR 1967 Del 1 [LNIND 1966 DEL 143], per Kapur J.
61 . Nokes v Doncaster Amalgamated collieries [1940] AC 1014, p 1022; Maxwell, Interpretation of Statutes, twelfth edn, p
45; Satyanarain v Bishwanath AIR 1957 Pat 550, p 554; Ram Singh v Ram Karan AIR 1965 MP 264; Sheikh Gulfan v
Samat Kumar Ganguli AIR 1965 SC 1839 [LNIND 1965 SC 81], (1965) 2 SCA 156 [LNIND 1965 SC 81]; Ishwar Singh
Bindra v State of Utter Pradesh AIR 1966 All 168 [LNIND 1965 ALL 92], p 171; Tola Ram v Shop Inspector AIR 1959
MP 382-83, per Shiv Dayal J.
62 . Harish Chandra v Rex AIR 1949 All 15 [LNIND 1948 ALL 16], p 17; Mewa Kunwar v Bourey (1934) ILR 56 All 781,
AIR 1934 All 388; Mahommad Jewar v Wilson 12 Cr LJ 246, 10 IC 787; Municipal Board v Ram Autar AIR 1960 All 119
[LNIND 1959 ALL 78].
63 . [1949] 2 All ER 155.

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64 . [1972] 1 All ER 1057; quoted in Dr Sattus Sushrushalya Nursing Home v State of Karnataka AIR 1992 Kant 274
[LNIND 1991 KANT 304], (1991) ILR Kant 3072.
65 . (1991) 3 SCC 67 [LNIND 1991 SC 77].
66 . Chajjoo v Radhey Shyam AIR 1968 All 296 [LNIND 1967 ALL 156], p 304), per GD Sehgal J: appeal under s 476B,
Cr PC.
67 . (1997) 9 SCC 552 [LNIND 1997 SC 1719].
68 . (1971) 2 SCR 446 [LNIND 1970 SC 388].
69 . Rameshwar v Jot Ram AIR 1976 SC 1516.
70 . (1977) Curr LJ 324 (Civ) (P&H).
71 . Jaswant Kaur v State of Haryana AIR 1977 P&H 221 : (1977) Cur LJ 324 (Civ) (P&H).
72 . (2007) 5 CTC 737.
End of Document
Reconstructing and Constructing the Law
NS Bindra
As already stated the essentialist and complementarian roles of the judiciary have been simultaneously present
even if the former has been the more dominant partner. The truth of this statement is borne out by Table 1.1 which
documents how the courts keep invoking legislative intention as the primary factor guiding the task of interpretation.
The Table also shows how some judges do also believe that smoothening of the legislative ruck is also a part of
their interpretational duties. From the 1980s, with the onset of judicial activism, the Courts saw their own mandate
not just in negative terms whereby they were required to strike down as unconstitutional laws those laws which fell
foul of the Constitution. Instead they also saw it as their role to interpret laws which were aimed at lessening social
inequalities in such manner that the larger social purpose informs and if required even prevails over the limitations
of the statutory text.
In Bhim SinghjivUOI73 the constitutionality of the urban Land Ceiling Act was at issue. Amongst other sections a
provision which was seen as fatal to the validity of the Act was Section 23 of the Act. Section 23 (1) of the Act
provide that it shall be competent for the State Government to allot by order, in excess of the ceiling limit any vacant
land which is deemed to have been acquired by the State Government under this Act, or is acquired by the State
Government under any other law, 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 and it shall be lawful for such person to hold such land in excess of ceiling limit. Section 23 (2) then
empowered the State Government to lay down conditions and section 23 (3) provided for the consequences on
breach of the condition. Section 23 (4) then provided that (s) ubject to the provisions of sub-sections (1), (2) and (3)
all vacant lands deemed to have been acquired by the State Government under this Act shall be disposed of by the
State Government to subserve the common good on such terms and conditions that the State Government may
deem to impose.
The critical issue in the case was that the text of the Act permitted the State Government to acquire land at less
than market rate without clearly specifying that the land was being acquired for public purpose. Without such an
explicit condition the acquisition could not be saved by Article 31A and 31B. Article 23 (4) of the Act allowed for
social justice acquisition but this section had been made subject to the remaining sub-sections of section 23 and
hence could not save the statute.
The case is of special interest from the standpoint of interpretation because the judges in the majority upheld the
constitutionality of the statute primarily on this rationale that considerations of social justice prevailed over the
infirmities of the text. This whilst Justice Chandrachud and Bhagwati opined that the preamble to the Act ought to
resolve interpretational doubts arising out of the defective drating of Section 23.74 Justice Krishna Iyer ruled that
courts can and must interpret words and interpret their meanings so that public good is promoted and power misuse
is interdicted75 Justice A P Sen smoothened the ruck of the legislative fabric by striking down section 23 sub-
section 1 to 3 and the opening phrase of sub-section (4) but saving the rest of the Act. Justice Tulzapurkar in his
dissenting judgment refused all the remedies suggested by his brother judges as in his view to induct the
considerations of common good into the section 23 (1) dispositions amounts to rewriting the sub-section which
cannot be done, the preamble notwithstanding.76
The manner in which activism and restraint influence the interpretation of legal texts again comes to the fore in
Bandhua Mukti Morcha v Union of India77 where Justice Bhagwati demonstrated that the text of article 32
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permitted both the liberalization of locus standi and the entertaining of letters complaining of the infringement of
fundamental rights as petitions.
Clause (1) of Article 32 says that the Supreme Court can be moved for enforcement of a fundamental right by any
appropriate proceeding. There is no limitation in regard to the kind of proceeding envisaged in clause (1) of Article 32
except that the proceeding must be appropriate and this requirement of appropriateness must be judged in the light of the
purpose for which the proceeding is to be taken, namely, enforcement of a fundamental right. The Constitution makers
deliberately did not lay down any particular form of proceeding for enforcement of a fundamental right nor did they stipulate
that such proceeding should conform to any rigid pattern or straight jacket formula as, for example, in England, because
they knew that in a country like India, where there is so much of poverty, ignorance, illiteracy, deprivation and exploitation,
any insistence on a rigid formula of proceeding for enforcement of a fundamental right would become self defeating (78
He continues with the textual analysis to then point out how Clause (2) of Article 32 conferring power on the
Supreme Court to issue directions, or orders, or writs, including writs in the nature of habeas corpus, mandamus,
prohibition, quo warranto and certiorari which ever may be appropriate, for enforcement of any of the fundamental
rights, is in the widest terms.(But it is much wider and includes within its matrix, power to issue any directions,
orders or writs which may be appropriate for enforcement of the fundamental right in question and this is made
amply clear by the inclusive clause which refers to in the nature of habeas corpus, mandamus, prohibition, qua
warranto and certiorari. Therefore even if the conditions for issue of any of these high prerogative writs are not
fulfilled, the Supreme Court would have power to issue any direction, order or writ including a writ in the nature of
any high prerogative writ.79
Whilst Justice Bhagwati was pointing to the fact that the text of the Constitution supported his liberal interpretation,
Justice Pathak in the same case was reading appropriate to mean acceptable or long practiced. He also set out to
show why it was not desirable to abandon the long practised when he said:
there is grave danger inherent in a practice where a mere letter is entertained as a petition from a person whose
antecedents and status are unknown or so uncertain that no sense of responsibility can, without anything more, be
attributed to the communication. There is good reason for the insistence on a document being set out in a form, or
accompanied by evidence, indicating that the allegations made in it are made with a sense of responsibility by a person
who has taken due care and caution to verify those allegations before making them. A plaint instituting a suit is required by
the Code of Civil Procedure to conclude with a clause verifying the pleadings contained in it. A petition or application filed in
court is required to be supported on affidavit. These safeguards are necessary because the document, a plaint or petition or
application, commences a course of litigation involving the expenditure of public time and public money, besides in
appropriate cases involving the issue of summons or notice to the defendant or respondent to appear and contest the
proceeding.80
In embarking on the pathway of social justice Justice Bhagwati took care to point out that when the Court entertains public
interest, litigation, it does not do so in a cavilling spirit or in a confrontational mood or with a view to tilting at executive
authority or seeking to unsurp it, but its attempt is only to ensure observance of social and economic rescue programmes,
legislative as well as executive, framed for the benefit of the have-nots and the handicapped and to protect them against
violation of their basic human rights, which is also the constitutional obligation of the executive. The Court is thus merely
assisting in the realisation of the constitutional objectives.81
Justice Pathak on the other hand feared that:
in the process of correcting executive error or removing legislative omission the Court can so easily find itself involved in
policy making of a quality and to a degree characteristic of political authority, and indeed run the risk of being mistaken for
one. An excessively political role identifiable with political governance betrays the Court into functions alien to its
fundamental character, and tends to destroy the delicate balance envisaged in our constitutional system between its three
basic institutions. The Judge, conceived in the true classical mould, is an impartial arbiter, beyond and above political bias
and prejudice, functioning silently in accordance with the Constitution and his judicial conscience. Thus does he maintain
the legitimacy of the institution he serves and honour the trust which his office has reposed in him.82
This dialogue between the restraintivist and activist judges shows the extent to which the social context in which the
judge places the legal text can influence the manner in which he interprets it. Justice Bhagwati was looking at what
could be achieved through the constitutional text for the most disadvantaged sections of the populace; Justice
Pathak was more concerned with the institutional cost of the experiment.
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The same reconstructionist logic was drawn upon by the Delhi High Court to so interpret section 377 of the Indian
Penal Code that its criminalizing impact did not extend to consenting homosexual adults.83 Any other interpretation
would breach the right to equality and privacy. Discrimination on grounds of sexual orientation would also fall foul of
article 15 which prohibits amongst other grounds discrimination on grounds of sex.
The Reconstructionist logic has been used by courts not just to uphold the constitutionality of textually suspect
legislations; but it has also been used to fill legislative gaps. Ahron Barack however holds that the task of filling
gaps or laying down guidelines should be viewed as non interpretative.84 Interpretationhe contends can be liberal,
conservative or radical. Interpretation he contends is aimed at determining the normative message that arises from
a text. Any norm creating exercise which happens without a legal text he labels as non interpretative. Such like non
interpretative efforts were made by the Court by laying down rules in relation to inter-country adoption;85
prevention of custodial violence86 and prevention of sexual harassment at the workplace.87 These efforts filled
legislative vacuums and some of them have now been replaced by legislation or Executive Guidelines. However
both the Sexual Harassment of Women at Workplace (Prevention Prohibition and Redresal) Act, 2013 and the
Central Adoption Resource Agency Guidelines on Inter-country Adoption would be inevitably interpreted in the light
of judicial expositions which preceded them.
In Captain Krishna v Union of India and others88 a writ petition was filed whereby the appellant sought that the
Armed Forces should accept her resignation letter and relieve her from service in order to prevent her husband
from divorcing her. The respondents (Director General of Medical Services (Army)) contended that marital
disharmony was one of the grounds for sympathetic consideration for discharge, but wss not binding on the Force.
In this context, Justice Geeta Mittal) looked at the recognition of the right to family life in International Covenants
and cited Vishakha v Union of India which had ruled that the international conventions and norms are to be read
into (domestic law) in the absence of enacted domestic law occupying the field when there is no inconsistency
between them. It is now an accepted rule of judicial construction that regard must be had to international
conventions and norms for construing domestic law when there is no inconsistency between them and there is a
void in the domestic law.
Since the international instruments required States parties to take appropriate steps to ensure equality of rights and
responsibilities of spouses as to marriage and accord the widest possible protection and assistance to the family as
a natural and fundamental group unit of society the judge was of the view that it was the responsibility of the
respondents and the duty of the court to construe the right claimed in the context of these norms, and ensure its
protection.
The activist stances of the Court can also result in the post haste recall of judgments as was found to be the case in
Namit Sharma vUnion of India89 In the original judgment the court examined the qualifications of Central and State
Chief Information Commissioners, as appointed under the RTI Act, 2005. The initial judgment read the requirement
for a basic degree in the subject, into knowledge and experience in Section 12 (5) and 15 (5) of the Act, and,
added, that certain requirements of law and procedure would have to be read into this provision to sustain its
constitutionality. This exercise was undertaken by the Courts on the ground that Courts should ordinarily so read a
statutory provision that its constitutionality is maintained. The Court then went on to lay down detailed guidelines for
states and the Union as to the functioning of Information Commissions and the appointment of judicial members.
This reading of the statutory provisions was questioned and review petitions against the same were filed in the
Supreme Court90 This round going the Court reiterated its more commonly held view on adding words to statutes,
quoting Union of India and Another v Deoki Nandan Aggarwal91 stated:
It is not the duty of the Court either to enlarge the scope of the legislation or the intention of the legislature when the
language of the provision is plain and unambiguous. The Court cannot rewrite, recast or reframe the legislation for the very
good reason that it has no power to legislate. The power to legislate has not been conferred on the courts. The Court
cannot add words to a statute or read words into it which are not there. Assuming there is a defect or an omission in the
words used by the legislature the Court could not go to its aid to correct or make up the deficiency. Courts shall decide what
the law is and not what it should be. The Court of course adopts a construction which will carry out the obvious intention of
the legislature but could not legislate itself. But to invoke judicial activism to set at naught legislative judgment is subversive
of the Constitutional harmony and comity of instrumentalities.
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Some of the institutional role questions brought out in this chapter were faced by the Supreme Court in University of
Kerala v Councils, Principals, Colleges, Kerala & Ors92 where the Supreme Court, through a series of interim
orders sought the implementation of the Lyngdoh Commissions suggestions on student elections in universities by
setting up a committee chaired by a retired Election Commissioner. J Katju was of the view that this amounted to
judicial legislation and must be avoided, while J. Ganguli felt that powers under Arts. 141, 142, 32 and 226 were
broad and meant to ensure complete justice. Six questions were referred to a Constitutional Bench for
consideration, of which four that are of great relevance to the Courts perception of its role are as follows:
Whether under our Constitution the judiciary can legislate, and if so, what is the permissible limits of judicial legislation. Will
judicial legislation not violate the principle of separation of powers broadly envisaged by our Constitution;
Whether the judiciary can legislate when in its opinion there is a pressing social problem of public interest or it can only
make a recommendation to the legislature or concerned authority in this connection; and
Whether Art. 19 (1)(c) and other fundamental rights are being violated when restrictions are being placed by the
implementation of the Lyngdoh Committee report without authority of law.
What is the scope of Arts. 141 and 142 of the Constitution? Do they permit the judiciary to legislate and/or perform
functions of the executive wing of the State.
73 . (1981) 1 SCC 166.
74 . Id at 178.
75 . Id at 185.
76 . Id at 201.
77 . 1984 SCR (2) 67.
78 . Id at 71.
79 . Id at 72.
80 . Id at 82.
81 . Id at 102-03.
82 . Id at 162.
83 . Naz Foundation v Union Territory of Delhi, (2009) DLT 27; At the time of publication of this book, the Supreme Court
on 11-12-2013, set aside the judgment of the Delhi High Court in the Naz foundation case.
84 . Supra note 6 at pp 61-82.
85 . Laxmi Kant Pandey v Union of India AIR 1992 SC 118 [LNIND 1991 SC 383].
86 . DK Basu v State of West Bengal (1997) 1 SCC 416 [LNIND 1996 SC 2177].
87 . Vishakha v State of Rajasthan (1997) 6 SCC 241 [LNIND 1997 SC 1081].
88 . 2010 Indlaw DEL 2819.
89 . WP (C) No. 210/2012.
90 . Union of IndiavNamitSharma Review Petition [C] No. 2309 of 2012 with Review Petition [C] No. 2675 of 2012.
91 . (1992) SCC (L&S) 248.
92 . (2010) 1 SCC 353 [LNIND 2009 SC 1978].

Page 5 of 5
End of Document
Conclusion
NS Bindra
Conclusion
This Chapter tracked the impact of institutional role perceptions on interpretation. The analysis and Table 1.1 shows
that institutional essentialism has over bearingly influenced Indian adjudication. The complementarian segment
brings forth the importance of convergence between legislation and adjudication for the realization of statutory
purpose. And the section on reconstruction demonstrates how Courts have reworked the legislative text to advance
social justice. The judiciary has in several decisions explicitly adopted activist positions whilst performing the
interpretational role; the Namit Sharma decision brought home how the primacy of the legislative word is a default
position for the courts.
Table 1.1 Legislative Intent and Limits on The Judiciary
S. No Name and Citation of Provision and Statute Context of the Case: Relevant portion from
Case in Question Practice of the case
Court/Source of Plain
language/ Legislative
Intent
1. Ijjatullah Bhuyan v Civil Courts Act - Section 11 of the Court Where a statute,
Chandra Mohan Section 50 and Suits Fees Act was used to however, uses
Banerjee (1907) ILR 34 Valuation Act- Section gauge whether the suit language of doubtful
Cal 954 8 and Court Fees Act - was to be valued on import, and has been
Section 11 the basis ofmesne interpreted in a
profits or the value particular manner for a
claimed in the plaint. number of years, the
Legislative intent was interpretation given to
not the basis for the that obscure meaning
judgment of the Court. may reduce the
uncertainty to a fixed
rule.
2. Muradally Shamji v BN Code of Civil The prevailing practice A practice which is in

Lang (1917) ILR 41 Procedure, 1908 - in Bombay was to contravention of the
Bom 555 Section 80 make the insolvent law, even if it be the
whose discharge had practice of a high court,
been suspended to cannot make lawful
appear and obtain the that which is unlawful.
final and absolute
discharge after the
expiry of the period of
suspension. However,
this was not in
accordance with
Section 80, and the
Court struck it down as
unlawful.
Page 2 of 22
Conclusion
3. Shebalak Singh v Code of Criminal Reliance was placed To read into the
Kamaruddin Mandal Procedure, 1898 - on the plain language section words limiting
AIR1922 Pat 435 Section 144 (Same of Section 144 to judge its operation would be
section in Code of a district magistrates to usurp the functions
Criminal Procedure, order. of the legislature which
1973) is not within the
competence of the high
court or any other court
to do.
4. Hadayat Ullah v Code of Civil Reliance was placed Courts cannot read into
Ghulam Mahommad Procedure, 1908 - on the plain language statutes provisions
Beg AIR1923 Lah 529 Order XX and Punjab of Section 16 to which are not there,
Pre-emption Act determine the right of even if they think that
pre-emption of the anomalies are not to
- Section 16 owner of immoveable be avoided otherwise.
property contiguous to
the suit property.
5. Lee v Lee (1924) ILR 5 Motor Vehicles Act, - At the same time,
Lah 147 1914 - Rule 32 between two possible
constructions, that
which is conformable
to international law as
declared in our own
tribunals is to be
preferred to that which
would involve
infringement of the
rights of other
communities.
6. Ghulam Mohd v Panna Provincial Insolvency Reliance was placed The meaning of the Act
Ram AIR1924 Lah 374 Act, 1907 - Section 16 on the plain language is to be interpreted not
and Section 36 of Section 36 to test with reference to what
whether it governed its framers intended to
the provisions of do, but with reference
Section 16 . The to the language which
debates in the they did in fact employ.
legislative council were The learned Judicial
held to not be a source Commissioner of
of interpretation if the Nagpur appears to us
language was plain. also to have been
wrong in placing
reliance on the debates
which took place in the
Legislative Council.
7. Majidan v Sabir Ali AIR Code of Civil Reliance was placed When the courts duty
1928 All 62 Procedure, 1908 - on Section 11, and is to apply the
Section 11,Explanation general principles of language of the section
5 (res judicata) res judicata to test to the facts of the case
whether the suit was before it, it is
barred or not. undesirable to import
into a section, any
expression which is not
to be found there.
8. Omar Tyab v Ismail Indian Trusts Act, 1882 Reliance was placed The legislature
Tyab AIR1928 Bom 69 on various sections of indicated its intention
the Act, as well as the expressly or by
preamble, to ascertain implication, in the form
Page 3 of 22
Conclusion
the meaning of trust of a written instrument

and trustee within the known as a statute. In
Act. all cases, the object is
to see what is the
intention expressed by
the words used.
9. Mansa Singh v UP Motor Vehicles Reliance was placed When there are two
Emperor AIR 1929 All Rules, 1914 - Rule 32 on the expression in possible constructions,
750 case a person is it is the duty of the
injured to impose a court to use the
general duty on the commonsense
driver or owner of a construction.
motor vehicle to report
an accident without
delay.
10. In Re: Bholanath Pal Indian Succession Reliance was placed However strongly a
AIR 1931 Cal 580 Act,1925 and a on the plain language court may feel that the
1929Amendment that of the 1929 legislature has
granted power to the Amendment to hold overlooked a
High Court to issue that the expression necessary provision or,
succession certificates. District Judge included however obvious it
judges of the High may be that a provision
Court, thus has been inserted or
empowering them to omitted owing to the
issue succession blunder of the
certificates. draftsman, a court is
not at liberty to make
laws or amend them.
11. VE Chettyar Firm v Code of Civil Reliance was placed A court is not permitted
MPN Firm AIR 1934 Procedure, 1908 - on the plain language to read into the rules a
Rang 174 Order XXI of Paragraph 2, Order definite provision on
XXI to repel an which the rule itself is
argument for the silent.
interpretation of Order
XXI in a way that
accommodated
permission for
attachment.
12. Manoo Ali v Hawabi, Guardians And Wards Reliance was placed Indeed it is very
AIR 1935 Rang 384 Act, 1890 - Sections 4, on the plain language dangerous for courts to
19, 24, 25 of Section 25 to test try and find out the
whether a father who intention of the
never had custody of legislature and then
the child after his strain the language
divorce could qualify as used in the statute to
a guardian within the carry out the intention.
section. The legislative The primary duty of the
intent invoked by the court is to give effect to
Court was that the Act the intention of the
aimed at welfare of the legislature as
child. expressed in the words
used by it and no
outside consideration
can be called in aid to
find another intention.
13. Emperor v Hari AIR Code of Criminal The defence argued Courts are established
1935 Sind 146 Procedure, 1973 - that it was entitled to do justice according
Page 4 of 22
Conclusion
Section 342 under considerations of to law, they are to

natural justice to place proceed on the lines
its arguments on which the legislature
record at the earliest. has laid down; and if a
The Court did not legislature should
agree with this, and deviate from the
held that such straight and narrow
considerations could path of natural justice,
not be read into the to correct their
plain language of mistakes is not one of
Section 342. the duties committed to
the judiciary.
14. Kamalaranjan v Secy Benami Tenancies Act, Reliance was placed A court cannot put into
of State AIR 1938 PC 1885 - Sections 37 and on the plain language the Act words which
281 113 and 114 of Section 113 and 114 are not expressed, and
of the Act, and an which cannot
argument in favour of reasonably be implied
adding words to them on any recognised
was rejected. principles of
construction. That
would be a work of
legislation, not of
construction and
outside the province of
the court.
15. Mahommad Jamil v Code of Civil It was argued that the The legislature means
Saudagar Singh Procedure, 1908 - CPC envisaged no what it says and it is
AIR1945 Lah 127 Section 107 right to appeal from not open to law courts
decrees based on to say that it would
arbitration awards. The have meant something
Court placed reliance else. If the legislature
on the plain language gives a right, it is not
of Section 107 to open to law courts to
ascertain that the take away or curtail
legislative intent was to that right merely
not restrict a right of because a court thinks
appeal. Hence, the the legislature has
Courts could not acted illogically.
restrict the right to
appeal either.
16. Dy Commr v President Uttar Pradesh Bye-laws passed under It is not the function of
NA Committee AIR Municipalities Act - the Act were argued to courts to amend bye-
1949 All 683 Section 337 be intra vires because laws so as to make
they purported to do them intra vires, they
what the Act sought to can only decide
do (according to its whether the bye-laws
preamble). The Court as they stand are
did not agree, and held within the bye-law-
that bye-laws were to making power.
be interpreted
independently and on
the basis of their plain
language.
17. Re Saptaha AIR 1950 Press (Emergency The Court placed The court is bound to
Cal 444 Powers) Act, 1931 reliance on the entire give effect to the
scheme of the Act to language of the Act so
ascertain that long as it is in
legislative intent was to existence, even though
Page 5 of 22
Conclusion
control the liberty of the it thinks that the Act is

press. However, the capricious or unjust.
Court held that The capriciousness or
provisions of 1931 injustice of a particular
should not be strictly result is a matter to
interpreted as the which the court can
situation in 1949 pay attention in
demanded a different deciding the true
interpretation. construction of the
words used in the Act,
but too much weight
must not be given to
those matters. It is the
right of the legislature,
if it so wishes, to be
capricious or unjust.
18. Brajnandan Sharma v Constitution of India - The Court placed The Courts do not
State of Bihar AIR1950 reasonable restrictions reliance on the apply any subjective
Pat 322 under Article 19 language of Article test. It is well settled
19(5), especially the that there can be an
expression reasonable, objective test of
to hold that the intent reasonable ness, and
behind the Article was that is what the Courts
not to exclude the apply, They do not ask
judiciary from testing themselves, do we, as
the restriction on individuals, feel
grounds of satisfied that the
reasonableness. restrictions are
reasonable? But,
would that fictitious
individual, the reason
able man, that is to
say, the normal
average man, regard
them as reasonable?
That is a well
recognised legal
means of examining
the question of
reasonableness, and it
is essentially an
objective test.
19. New Piecegoods Bazar Income Tax Act - Reliance was placed The primary duty of a
Co Ltd v Commissioner Section 9(Same on the plain language court is to give effect to
of Income-tax, Bombay provision in Income of Section 9, as well as the intention of the
AIR 1950 SC 165 Tax Act, 1961) the difference between legislature as
[LNIND 1950 SC 28] land revenue and taxes expressed in the words
charged by the used by it and no
municipality under the outside consideration
Bombay Municipal Act, can be called in aid to
1888. find the intention.
20. Atchana v Madras Estates Land Reliance was placed The Court has to judge
Seetharamaswami Act, 1908 - Section 8 on the plain language the intention of the
AIR1950 Mad 387 of Section 8 to rule that Legislature not by
if the legislature speculating as to what
intended to include it had in its mind but
acquisition of land in only by its expression
manners not defined of that mind through
by the Act within the the language of the
Page 6 of 22
Conclusion
ambit of Section 8, it enacted provisions.

would have manifested
it in explicit terms.
21. Viraraghava Rao v Code of Civil Reliance was placed While it is clear that a
Narshimha Rao Procedure, 1908 - on the plain language right of appeal which is
AIR1950 Mad 124 Section 96 and Section of Sections 109 and always the creature of
109 and Section 110 110 of the CPC to hold statute cannot be
that a right of appeal enlarged beyond the
was granted by the letter of the statutory
provisions. provision conferring the
right, it is equally clear
that the right cannot be
curtailed in a manner
not warranted by such
letter. It is the letter, in
my opinion, that
essentially matters for
the construction of the
statutory provision into
which speculations
ought not to enter
about what the
Legislature may or may
not have intended,
apart from what it has
expressed by the
language that it has
employed.
22. Dhirendra Nath Bera v Code of Criminal Reliance was placed It is the duty of the
Nurul Huda AIR 1951 Procedure, 1898 - on a holistic reading of court to construe the
Cal 133 [LNIND 1951 Section 195 (Section Sections 195 to 199 to provisions of an Act
CAL 148] 199 of the Code of hold that previous and to construe them
Criminal Procedure, sanction of the according to the
1973) government was language used. It is not
required only to for a court to speculate
prosecute government as to what the
authorities for a few legislature should or
offences, and not all might have said.
offences. Regard can only be
had to what the
legislature had said.
23. Heman v State of Bombay Land The matter dealt with A court should decide
Bombay AIR1951 Bom Requisition Act, 1948 - requisition of of only those questions
121 Section 6 residential premises by which directly arise
the government. The from the facts of the
Court refused to enter particular case before
into hypothetical and it. It is always
ancillary questions and inadvisable to travel
set the scope of its outside the facts of a
decision at a particular case and
preliminary stage in the express hypothetical
judgment. opinions which may
only embarrass judges
who may have to
consider cases in
future which arise on
different facts.
24. Hira Devi v District Uttar Pradesh District On a joint reading of It is not the duty of
Page 7 of 22
Conclusion
Board, Saharanpur AIR Borders Act, 1922 - Section 71 and Section courts to stretch the
1952 SC 362 [LNIND Section 71 90, the Court admitted words used by the
1952 SC 53] that Section 71 legislature to fill in gaps
suffered from lacuna, or omissions, in the
and that had not been provisions of an Act.
cured by the legislature
even after passing an
amendment. However,
the Court refused to
supply words to the
provision, claiming it to
be the executive
domain of the
legislature.
26. Sushila Bala Dassi v Calcutta Thika Counsel argued that We are not permitted
Corpn of Calcutta AIR Tenancy Act, 1949 - Section 30 covered by the ordinary law to
1954 Cal 257 [LNIND Section 30(The Court land both wholly and import words that are
1953 CAL 72] considered the Act as partially under not in a statute unless
a whole to ascertain its ownership of parties. there are very
scope) The Court found this to compelling reasons for
be importing words not the same.
found in the statute. On
the basis of its reading
of the statute, it
rejected the argument.
25. Nand Kishore Naik v Hindu Womens Right The observation of the The function of the
Sukti Dibya AIR1953 to Property Act, 1937 - Court came in the judge is limited to
Ori 240 Section 3 context of the District interpretation of the law
judge ruling that a within the limits of
Hindu widow was a recognised canons of
coparcener but not in interpretation. It is not
the full sense. The for judge to legislate
High Court held this to and introduce
be unwarranted exceptions or
addition to the letter of compromises into the
the statute, and a plain language of an
usurpation of the enactment.
legislatures role.
27. Govt of Assam v - - No universal rule can

Sahebullah 24 Cr LJ be laid down for the
881, 75 IC 129 (Cal) construction of
statutes, as to whether
mandatory enactments
shall be construed as
merely directory or
obligatory with an
implied nullification for
disobedience. It is the
duty of the courts of
justice to try to get at
the real intention of the
legislature by carefully
attending to the whole
scope of the statute to
be construed.
28. Union of India v Constitution of India - The Court relied on The statute must be
Kanhaiya Lal Shyam Article 133 and Code Sections 108 - 110 of taken as it stands
Lal AIR1957 Punj 117 of Civil Procedure, the CPC to hold that a without any judicial
Page 8 of 22
Conclusion
1908 - Section 110 right of appeal only addition or subtraction,

accrued against the for the court has no
entire decision or more authority to
decree of the lower enlarge, stretch or
Court, and an appellant expand a statute under
could not prefer the guise of
separate appeals on interpretation than to
separate parts of the restrict, constrict or
decision. Such an qualify its provisions.
addition was beyond
the scope of the
judicial role according
to the Court.
29. Ram Krishna v Janpad Central Provinces and Reliance was placed It is a cardinal principle
Sabha AIR 1962 SC Berar Local on the plain language of statutory
1073 [LNIND 1962 SC Government Act, 1948 of Section 192 to hold construction that the
59] - Section 192 that in the absence of a intention of the
savings clause, Janpad legislature should be
Sabhas could no gathered from the
longer collect taxes, words of the
and such a right could enactment.
not be read into the
statute by the Court.
30. Workmen of Bombay Industrial Disputes Act The Court interpreted In the courts, however,
Port Trust v Trustees, - Section 10 and Section 10 of the Act while, we have to
Port of Bombay AIR Mininum Wages Act, beyond its plain remember the rules of
1962 SC 481 [LNIND 1948 language, and broke grammar, because
1961 SC 328] down its provisions to such rules are
analyse it bit by bit. ordinarily observed by
This was done people in expressing
because a plain their intentions, we
reading was creating have to look a little
the unjust result of more closely to
depriving a workman understand the real
his wages for Sunday intention expressed.
(rest day) if he took a
holiday during the
week.
31. Rullia Ram Hakim Rai East Punjab Urban The Court relied on the So far as the courts are
v Fateh Singh AIR1962 Rent Registration Act, plain language of concerned they have to
Punj 265 1949 - Section 13 Section 13 to hold that gather the intention of
a defaulting tenant can the Legislature from
avoid eviction only by the words used by the
paying all arrears, Legislature in the
whether they be within particular enactment. If
the limitation period or the meaning put on
not. Restricting it only those words does not
to arrears within the do violence with the
limitation period was objects and purpose of
not mandated by the the Act and the
legislature in the language is plain and
opinion of the Court. unambiguous the
The Court also rejected Courts will not be
reliance on similar Acts justified in putting a
in West Bengal and different meaning on
Delhi that favoured the the words merely
petitioners argument. because a sister
Legislature has in its
wisdom thought to
Page 9 of 22
Conclusion
enlarge the scope of

those words.
32. Nadiad Borough Indian Electricity Act, Reliance was placed If there are two
Municipality v Nadiad 1910 - Section 22A on the plain language expressions, one of
Electric Co Ltd of Section 22A to hold which conveys the
AIR1964 Guj 30 that it could not be intention of the
restricted only to legislature more clearly
establishments notified than another, and the
under Section 22, but legislature uses the
its ambit, on a plain less clear expression,
reading, was over all the legislature will be
establishments deemed not to have
referred in Section 22. intended to convey that
intention and it
becomes necessary to
discover what intention
it did intent to convey.
33. Krishan Chand v Uttar Pradesh Control The Court did not A court must not only
Ganga Dhar 1964 of Rent and Eviction agree with the decide whether a
AWR 329 Act, 1947 - Section 5 argument of the particular interpretation
appellant that Section was intended by the
5 covered all suits, legislature, but also
holding that it would whether the language
produce absurd and used in the statue has
undesirable results. succeeded in
Legislative intent was conveying that
not sourced from the intention.
provision, but from the
judiciarys desire to
read the provision in a
manner that makes it
just and fair.
34. Mahijibhai Mohanbhai Code of Civil Relying on the history On a procedural matter
Barot v Patel Manibhai Procedure, 1908 - of Section 144, and pertaining to execution,
Gokalbhai AIR 1965 Section 144 precedents on the when a section yields
SC 1477 [LNIND 1964 same point, the Court to two conflicting
SC 349] held that an application constructions, the court
for restitution was a shall adopt a
species of an construction which
execution petition. maintains rather than
disturbs the equilibrium
in the field of
execution. The
historical background
of section 144 of the
Code of Civil
Procedure, the
acceptance of the legal
position that an
application for
restitution is one for
execution of a decree
by a number of High
Courts, the inevitable
adoption of the said
legal position by
innumerable
successful appellants
within the jurisdiction of
Page 10 of 22
Conclusion
the said High Courts,

the possible
deleterious impact of a
contrary view on such
appellants, while there
will be no such effect
on similar appellants
within the jurisdiction of
the High Courts which
have taken a contrary
view, also persuade us
to accept the
construction that the
application for
restitution is one for
execution of a decree.
35. Parina Rai v Dharam Uttar Pradesh On the basis of the It is a well established
Deo Singh AIR 1966 Zamindars Debt plain language of canon of interpretation
All 199 [LNIND 1965 Reduction Act, 1953 - Section 3 which spoke that the intent of the
ALL 41] Section 3 of suits related to legislature is to be
secured debt, the gathered from the
Court held that the words used and that if
provision could not be the words used have
restricted to suits for not acquired any
the enforcement of technical meaning,
secured debt. they should be deemed
to have been used in
their ordinary meaning.
The safer and more
correct way of dealing
with a question of
construction is to take
the words themselves
and arrive, if possible,
at their meaning
without, in the first
place, reference to
cases.
36. United India Timber Employees State Reliance was placed What is necessarily or
Words v Employees, Insurance Act, 1948 - on the entire scheme clearly implied in a
State Insurance Corpn Section 75 of the Act to hold that statute is as much part
AIR1967 Punj 166. the fixation of any of it and is as effectual
period of limitation to as that which is
realise contributions expressed, because it
from the employer often speaks as plainly
would tend to obstruct by necessary inference
the effective working as in any other
and enforcement of the manner.
scheme of insurance.
37. Narsingh v State East Punjab Holdings On a plain reading of It is not infrequently
AIR1967 Punj 111 (Consolidation and Section 42, the Court necessary, therefore,
Prevention of held that it could not be to limit the effect of the
Fragmentation) Act, invoked by the general words
1948 - Section 42 Government to block contained in an
the enforcement of a enactment and
consolidation scheme sometimes to depart
after it had been from their primary and
framed. literal meaning, when it
seems highly
Page 11 of 22
Conclusion
improbable that words

in their wide meaning
actually express the
real intention of the
Legislature. One of
these presumptions is
that the Legislature
does not intend to
make any substantial
alteration in the law
beyond the immediate
scope and object of the
statute. In all general
matters outside those
limits, the law remains
undisturbed for it is in
the last degree
improbable that the
Legislature would
overthrow fundamental
principles, infringe
rights or depart from
the general system of
law without expressing
its Intention with
irresistible clearness,
and to give any such
effect to general words,
simply because they
have a meaning that
would lead thereto
when used in either
their widest, their usual
or their natural sense,
would be to give them
a meaning other than
that which was actually
intended.
38. Bhudan Singh v Nabi Uttar Pradesh The Court went beyond it is necessary to
Bux AIR 1970 SC 1880 Zamindari Abolition the plain language of mention that it is
[LNIND 1969 SC 283]. and land Reforms Act, Section 9 and analysed proper to assume that
1950 - Section 9 the section de novo, to the lawmakers who are
hold that the provision the representatives of
could not be intended the people enact laws
to ignore the rights of which the society
persons having legal considers as honest,
title to possession, and fair and equitable. The
could not seek to object of every
transfer the property to legislation is to
a trespasser by virtue advance public
of his physical welfare. Justice and
possession of the reason constitute the
building on the date of great general
vesting. legislative intent in
every piece of
legislation.
Consequently where
the suggested
construction operates
harshly, ridiculously or
Page 12 of 22
Conclusion
in any other manner

contrary to prevailing
conceptions of justice
and reason, in most
instances, it would
seem that the apparent
or suggested meaning
of the statute, was not
the one intended by
the law-makers. In the
absence of some other
indication that the
harsh or ridiculous
effect was actually
intended by the
legislature, there is
little reason to believe
that it represents the
legislative intent.
39. Sujir Ganesh Nayak & - - So far as the intention

Co v Income-tax of the legislature is
Officer, Quilon (1975) concerned, it is
Ker LT 763 dangerous, even if it be
permissible, to arrive at
it by any process of
logical reasoning, for
there is a distinction
between logical
reasoning and legal
reasoning.
40. Nathu Prasad v Code of Civil Reliance was placed The primary duty of a
Singhai Kapurchand Procedure, 1908 - on the plain language court is to give effect to
1976 JLJ 340 Order XLIII of Order XLIII to hold the intention of the
that an appeal lies from legislature as
an order dismissing an expressed in the words
application under used by it and no
Order IX, Rule 9 for outside consideration
default or on merits. can be called in aid to
find another intention.
41. Amritha Kudumban v - - It is doubtful whether

Sarnam Kudumban 98 the rule of harmonious
LW 696. construction extends
the scope of the courts
inquiry beyond the
confines of the
particular statute,
which the court has to
construe.
42. Heekett Engg Co v Industrial Employment Reliance was placed It is not the function of
Workmen AIR 1977 SC (Standing Orders) Act, on the plain language the court to strain the
2257 [LNIND 1977 SC 1946 - Section 5 of a standing order to meaning of the
289] hold that a plant particular section, or to
manager was also so construe provision
competent to dismiss a as to do violence to the
workman, and the phraseology used
language of the order therein.
did not accommodate a
requirement that the
Page 13 of 22
Conclusion
dismissing authority be
the general manager.
43. Mool Raj Jain v Jayna East Punjab Urban - Any general
Engg Works (1977) Rent Restriction Act, observation made by
Cur LJ 1(Civ) (Punj). 1949 - Section 12 Supreme Court cannot
apply in interpreting the
provisions of an Act,
unless the Supreme
Court has applied its
mind to and analysed
the provision of that
particular Act.
44. Suptd and Legal Bengal Excise Act, On the consideration of The Court must give
Remembrancer, West 1909 - Section 63 and the Act as a whole, the effect to the will and
Bengal v Abani Maity Section 64 Court held that the inbuilt policy of the
AIR 1979 SC 1029 purpose behind the Act legislature, as
[LNIND 1979 SC 179] was not only to raise discernible from the
revenue but also to object and scheme of
control and restrict the the enactment, and the
import, export, language employed
transport, manufacture, therein. Exposition ex
and sale of intoxicants. visceribus actus is a
long recognised rule of
construction. Words in
a statute often take
their meaning from the
context of the statute
as a whole. They are
therefore, not to be
construed in isolation.
45. Raj Kanta v Financial Punjab Security of On a reading of The court cannot, in
Commr, Punjab AIR Land Tenures Act, Section 9, which order to promote its
1980 SC 1464 [LNIND 1953 - Section 9 contained the social philosophy, turn
1980 SC 237] expression fails to pay and twist the plain and
rent regularly without unambiguous language
sufficient cause, the of the law so as to
Court held that the ascribe to it a meaning
effect of these words different from the one
was not to exclude a intended by the
single event of default legislature.
to pay rent, and the
legislature did not
intend to exclude
single events.
46. Ved Prakash Wadhwa Code of Civil The Court sought to In the matters of state
v Vishwa Mohan Procedure, 1908 - interpret the statutes, where
(1981) 3 SCC 667 Section 20 and Order expression at the first procedure has to be
X, Order XIV hearing of the suit in pronounced upon, the
Section 20, and relied practice of the court is
on its previous the best guide to
decisions and interpretation.
decisions of High
Courts to arrive at an
interpretation.
47. Harchand Singh v - The dominant purpose

Shivarani1981 All WC in construing the
273(SC) statute is to ascertain
Page 14 of 22
Conclusion
the intention of the

legislature. This
intention, and,
therefore, the meaning
of the statute, is
primarily to be sought
in the words used in
the statute itself, which
must, if they are plain
and unambiguous, be
applied as they stand,
however strongly it
may be suspected that
the result does not
represent the real
intention of the
legislature. In
approaching the matter
from this angle, it is the
duty of the court to give
fair and full effect to a
statute which is plain
and unambiguous
without regard to
particular consequence
in a special case.
48. Film Exhibiters Guild v Andhra Pradesh The Court considered It is not the function of
State of Andhra Entertainments Tax the Act as a whole and the Court to hunt out
Pradesh AIR 1987 AP Act, 1939 a further amending Act ambiguities by strained
110 from 1984 to ascertain and unnatural
the legislative intent to meaning; close
be the augmentation of reasoning is to be
revenue, due to which adopted; harmonious
show tax under Section construction is to be
4 had to be paid adhered to; all the
irrespective of whether relevant provisions are
entertainment tax was to be read together to
being paid under gather the intention
Section 5 or not. from the language
employed, its context,
and give effect to the
intention of the
legislature. Ingenious
attempt to avoid tax is
to be thwarted.
49. Alka Sharma v Hindu Marriage Act, Reliance was placed The Judge must do this
Abhinesh Chandra 1955 - Section 5 and on the language of work of construction of
Sharma AIR 1991 MP Section 12 and Section Section 12 and Section statute from
205 [LNIND 1991 MP 13 13 of the Act to hold consideration of social
235] that the wifes suffering conditions which give
from schizophrenia rise to it and of the
prior to marriage, and mischief which it was
her treatment for this intended to remedy
condition both prior to and also in the light of
and subsequent to the the constitutional
marriage, was cause to inhibitions and then
grant a decree of nullity supplant the written
under Section 12. words and add to it and
give force and life to
the intention and
Page 15 of 22
Conclusion
purpose of the
legislature or the
making authority. A
Judge must not alter
the material of which a
law or an instrument is
woven but he can and
should iron out the
creases and if one may
venture to say make
articulate the
inarticulate premise but
make articulate only
which follow from
necessary compulsions
of the situations and
the constitutional
position.
50. Fakaruddin Malick v - - It is equally the duty of

State of West Bengal the court to accept a
(1995) AIHC 140(Cal). contention which
promotes the object
and for that propose
the court can go
beyond the language in
order to give effect to
legislature.
51. Gangaram Atmaram Bombay Industrial The court went beyond The Judge has to
Vishwas Rao v Employment (Standing the plain language of discharge the onerous
National Textile Corpn Orders) Rules, 1959 Model Standing Order duty of ascertaining the
(SN) Ltd 1996 (1) Bom and Bombay Industrial 4-C to hold that a intention of the law-
CR 465 [LNIND 1995 Relations Act, 1946 workman employed for maker, which may be
BOM 453] over 240 days in non- obscure due to error in
seasonal employment draftsmanship.
would qualify for Statutes must not be
permanency. The construed in a manner
Court held that this leading to absurd
was the mandate of the results defeating the
Bombay Industrial legislative intention.
Relations Act, and the
Standing Order
suffered from an error
of draftsmanship.
52. Institute of Chartered Chartered Accountants Reliance was placed It is settled rule of
Accountants of India v Act, 1949 - Section 21 on the Act as a whole interpretation that all
Price Waterhouse & to ascertain that the the provisions would
Anor (1997) 6 SCC object was to maintain be read together
312 [LNIND 1997 SC professional standards harmoniously so as to
934] of the professional give effect to all the
conduct or other provisions as a
conduct consistent with consistent whole
the dignity of the rendering no part of the
professional of the provision as
accountants. surplusage. Otherwise,
by process of
interpretation, a part of
the provision or a
clause would be
Page 16 of 22
Conclusion
rendered otiose.
53. Transport Corporation Employees State Reliance was placed When two views are
of India v Employees Insurance Act, 1948 - on the furthering of possible on its
State Insurance Section 2, Section 3 social welfare through applicability to a given
Corporation (2000) 1 and Section 15 the Act, due to which set of employees, that
SCC 332 [LNIND 1999 the Court held that the view which furthers the
SC 1503] definition of employee legislative intention
could not exclude should be preferred to
employees stationed at the one which would
different branches frustrate it.
outside the State
where the head office
is located. On the basis
of its emphasis on the
social welfare aspects
of the Act, the Court
gauged the legislative
intent to be finanical
protection of all
employees.
54. Bharathiadasan All India Council for The Court ascertained Merely, activated by
University v All India Technical Education the legislative intent on some assumed objects
Council for Technical Act, 1987 - Section 2 the basis of the or desirabilities, the
Education (2001) 8 statement of objects Courts cannot adorn
SCC 676 [LNIND 2001 and reasons of the Act the mantle of
SC 2123]. as well as various legislature. It is hard to
sections, to hold that ignore the legislative
the appellant university intent to give definite
was not bound to take meaning to words
prior approval from the employed in the Act
AICTE as its courses and adopt an
did not fall within the interpretation which
ambit of the Act. would tend to do
violence to the express
language as well as
the plain meaning and
patent aim and object
underlying the various
other provisions of the
Act. Even in
endeavoring to
maintain the object and
spirit of the law to
achieve the goal fixed
by the legislature, the
Courts must go by the
guidance of the words
used and not on
certain pre conceived
notions of ideological
structure and scheme
underlying the law.
55. P Nirathil-ingam v Tamil Nadu Debt Relief Reliance was placed An interpretation of the
Annaya Nadar (2001) 9 Act, 1980 (The Court on various provisions statutory provision
SCC 673 [LNIND 2001 considered the Act as of the Act, as well as which defeats the
SC 2468] a whole) the statement of intent and purpose for
objects and reasons, to which the statute was
hold that the legislative enacted should be
intent was to vest avoided. If a decision
Page 17 of 22
Conclusion
jurisdiction to runs counter to the

determine questions very intent and
relating to eligibility for purpose for which the
benefits under the Act enactment was made
in the statutory the decision needs to
authorities to the the corrected and this
exclusion of the Court. has to be done despite
Hence, the filing of a the lapse of time.
civil suit by the creditor
against the debtor
would not revoke the
jurisdiction of the
statutory authorities.
56. Union of India v Textile Undertakings Reliance was placed Though it is no doubt
Elphinstone Spinning (Taking over of on various sections as true that the Court
Weaving Co Ltd (2001) Management) Act, well as the long title of would be justified to
4 SCC 139 [LNIND 1983 - Section 6 and the Act to ascertain some extent in
2001 SC 2915] Section 8 that the legislation was examining the
made in public interest. materials for finding out
The purpose of the Act the true legislative
was to make mills intent, engrafted in a
viable, and hence the Statute, but the same
authorities ought to be would be done only,
permitted to take over when the Statute itself
the undertaking in is ambiguous or a
circumstances of particular meaning
underperformance, and given to a particular
the expression provision of the
mismanagement could Statute, it would make
not be restricted to the Statute unworkable
dishonest and or the very purpose of
fraudulent practices. enacting the Statute
would get frustrated.
But by no stretch of
imagination, it would
be open for a Court to
expand even the
language used in the
preamble to extract the
meaning of the Statute
or to find out the latent
intention of the
legislature in enacting
the Statute.
57. State of Karnataka v Consumer Protection Reliance was placed It is well settled that the
Vishwabharathi House Act, 1986 - Section 25 on the language of cardinal principle of
Building Co-op Society, and Section 27 Section 25, particularly interpretation of statute
(2003) 2 SCC 412 the expression in the is that courts or
[LNIND 2003 SC 60]. event of its inability to tribunals must be held
execute it, to hold that to possess power to
Consumer courts had execute their own
the power to execute order. It is also well
their own orders. settled that a statutory
tribunal which has
been conferred with
the power to adjudicate
a dispute and pass
necessary order has
also the power to
implement its order.
Page 18 of 22
Conclusion
58. P.S. Sathappan v Code of Civil It was argued that The purport and object
Andhra Bank, (2004) Procedure, 1908 - Section 104 of CPC of enacting Sub-
11 SCC 672 [LNIND Section 104 may create an section (2) of Section
2004 SC 1053] anomalous situation 104 of the Code is to
and may result in avoid delay in disposal
discrimination in as of the matter. When
much as an appeal the statutory intention
under Letters Patent of minimizing the delay
would be available in the finality of the
against an order decision is manifest the
passed by High Court Court must interpret
on its original side, the provisions
whereas such an accordingly.
appeal would not be
available in a case
where order is passed
by High Court in its
appellate jurisdiction.
The Court held that An

Appeal was a creature
of a Statute. Hence, if
a Statute permitted an
Appeal, it will lie. Under
Section 104, an appeal
in the latter situation
was not permitted.
Thus, an appeal could
not be sought against
the High Court
exercising its appellate
jurisdiction if Section
104 barred it.
59. State of Uttar Pradesh Industrial Disputes Act, The Court was The Legislature should
v Jai Bir Singh (2005) 5 1947 - Section 2(j) considering the be allowed greater
SCC 1 [LNIND 2005 Industrial Disputes freedom to come
SC 472] (Amendment) Act 1982 forward with a more
and the expanded comprehensive
definition of industry legislation to meet the
after the Bangalore demands of employers
Water Suppy v A. and employees in the
Rajappa Case. It was public and private
argued that the social sectors. The inhibition
Forestry Department and the difficulties
was covered by the which are being
definition of industry. It exercised by the
was further argued that legislature and the
the executive was executive in bringing
trying to usurp the into force the amended
legislative role and Industrial Law, more
defeat the intent of the due to judicial
legislature by not interpretation of the
notifying the definition of industry in
Amendment. The Court the Bangalore Water
referred the matter to a Supply & Sewerage
larger bench for them Board case, need to be
to consider the removed. The
expanded definition of experience of the
industry and provide a working of the
solution to the provisions of the Act
Page 19 of 22
Conclusion
aforementioned would serve as a guide

deadlock. for a better and more
comprehensive law on
the subject to be
brought into force
without inhibition
Comprehensive
change in law and/or
enactment of new law
had not been possible
because of the
interpretation given to
the definition of
industry in Bangalore
Water case. The
judicial interpretation
seems to have been
the one of the inhibiting
factors in the
enforcement of the
amended definition of
the Act for the last 23
years.
60. Union of India v Students of the AFMC, The intention of the

Priyankan Sharan, Pune, were trying to legislature is primarily
(2008) 9 SCC 15 seek discharge from to be gathered from the
[LNIND 2008 SC 1793] the bond executed to language used, which
serve the nation for a means that attention
period of five years on should be paid to what
the ground of medical has been said as also
disability. The Court to what has not been
held that the legislative said. As a
intent behind the rules consequence, a
of the college was to construction which
provide an exception requires for its support,
such as the addition or substitution
aforementioned to the of words or which
general rule of paying results in rejection of
a discharge amount, words as meaningless
and hence the High has to be avoided
Courts decision of
allowing the students
to not pay the
discharge amount was
upheld.
61. Competition Competition Act, 2002 The Court was The primary purpose of
Commission of India v - Sections 19, 26, 53A considering the competition law is to
SAIL Ltd, (2010) 10 provisions of the remedy some of those
SCC 744 [LNIND 2010 Competition Act, 2002, situations where the
SC 850] because an argument activities of one firm or
had been raised that two lead to the
SAIL had been abusing breakdown of the free
its dominant position market system, or, to
by becoming the prevent such a
exclusive supplier of breakdown by laying
steel to the Indian down rules by which
Railways. SAIL rival businesses can
claimed that the compete with each
Competition other. The model of
Commission (CCI) had perfect competition is
Page 20 of 22
Conclusion
no jurisdiction to take the economic model

into account matters that usually comes to
like these. The Court an economists mind
upheld the jurisdiction when thinking about
of the CCI, and the competitive
directed it to enact markets he provisions
regulations to govern of Sections 26 and 53A
matters before it. of the Act clearly depict
the legislative intent
that the framers never
desired that all orders,
directions and
decisions should be
appealable to the
Tribunal. Once the
legislature has opted to
specifically state the
order, direction and
decision, which would
be appealable by using
clear and unambiguous
language, then the
normal result would be
that all other directions,
orders etc. are not only
intended to be
excluded but, in fact,
have been excluded
from the operation of
that provision. The
presumption is in
favour of the
legislation. The
legislature is deemed
to be aware of all the
laws in existence and
the consequences of
the laws enacted by it
There is no occasion
for the Court to read
and interpret the word
or in any different form
as that would
completely defeat the
intention of the
legislature.
62. Executive Engineer v Electricity Act, 2003 - The Court was Normally, the court
M/S Sri Seetaram Section 126 considering whether would not go behind
Ricemill, (2012) 2 SCC the provisions of these objects and
108 [LNIND 2011 SC Section 126 would be reasons of the Act. The
2547] attracted in its true discussion of a
scope and Standing Committee to
interpretation in cases a Bill may not be a very
where consumption of appropriate precept for
electricity is in excess tracing the but in given
of contracted load. The circumstances, it may
Court looked at the be of some use to
plain language of notice some discussion
Section 126, and held on the legislative intent
that the legislative that is reflected in the -
Page 21 of 22
Conclusion
intent behind Section substantive provisions

126 was to provide for of the Act itself. The
penalty in cases of Standing Committee
unauthorized use. on Energy, 2001, in its
Section 135 had discussion said, the
enumerated specific Committee feel that
instances of the theft of there is a need to
electricty. Hence, Court provide safeguards to
held that the legislative check the misuse of
intent behind Section these powers by
126 was to provide for unscrupulous
penalties for situations elements. The
other than theft of provisions of Section
electricity. 126 of the 2003 Act are
self-explanatory, they
are intended to cover
situations other than
the situations
specifically covered
under Section 135 of
the 2003 Act. This
would further be a
reason for this Court to
adopt an interpretation
which would help in
attaining the legislative
intent.
63. MSR Leathers v S. Negotiable Instruments The Court was An interpretation which
Palaniappan, (2013) 1 Act, 1881 - Section 138 considering the Proviso promotes and
SCC 177 [LNIND 2012 to Section 138, which advances the object
SC 594] in its plain meaning, sought to be achieved
permitted the payee to by the legislation ought
institute prosecution to be preferred over an
proceedings against a interpretation which
defaulting drawer even defeats such object.
after the expiry of the
period of one month.
The Court held that the
statute did not provide
for absolution simply
because the period of
30 days has expired or
the payee has for
some other reasons
deferred the filing of
the complaint against
the defaulter.
64. Prabhudas Kotecha v Presidency Small The Court was Golden-rule is that the
Manharbala Damodar, Causes Court, 1882 - considering the words of a statute must
AIR 2013 SC 2959 Section 41 jurisdiction of the Small be prima facie be given
[LNIND 2013 SC 720] Causes Court to try a their ordinary meaning
suit by a licensor when the language or
against a gratuitous phraseology employed
licensee under its by the legislature is
jurisdiction granted by precise and plain. This,
Section 41(1)of the by itself proclaims the
Presidency Small intention of the
Causes Courts Act, legislature in
1882 (PSCC Act), as unequivocal terms, the
amended in 1976. The same must be given
Page 22 of 22
Conclusion
Court held that the effect to and it is

clubbing of the unnecessary to fall
expression licensor upon the legislative
and licensee with history, statement of
landlord and tenant in objects and reasons,
Section 41(1)of the frame work of the
PSCC Act and statute etc. Such an
clubbing of causes exercise need be
relating to recovery of carried out, only when
licence fee was with a the words are
view to bring all suits unintelligible,
between the landlord ambiguous or vague.
and tenant and the
licensor and licensee
under one umberalla to
avoid unnecessary
delay, expenses and
hardship. Hence, the
Legislature had
conferred exclusive
jurisdiction in the Small
Causes Court for all
suits between licensee
and licensor, and it
would not have carved
out any exception to
keep only a gratuitous
licensee outside its
jurisdiction.
End of Document
NS Bindra
Edition > PART I THE INSTITUTIONAL REGIME OF INTERPRETATION > Chapter 2 Relation
between the Executive and the Legislature
Chapter 2 Relation between the Executive and the Legislature

Chapter 2 Relation Between the Executive and the Legislature
End of Document
Introduction
NS Bindra
Introduction
The permissible limits of delegated legislation are greatly influenced by the manner in which courts perceive the
relationship between the legislature and the executive. Herein again when courts perceive the legislature as the
exclusive law making body, it holds all delegation except the ancillary and incidental ones to be impermissible. At
the other end of the spectrum, Courts recognize the supremacy of the legislature in the matter and hold that so long
as the legislature does not abdicate its authority, courts should not take upon themselves the task of overseeing this
activity. If the legislature overshoots then it was better that accountability was sought by the people instead of the
courts. The third body of opinion falls in between the overly strict and overly liberal perception towards delegation of
legislative powers. The holders of this moderate outlook rule that legislatures can delegate their powers provided
the legislative instrument lays down the policy which guided the executive on how to perform its law making
responsibilities. This laying down of policy has been then ruled as essential law making power which cannot be
delegated. and whether this essential function has or has not been performed is to be determined by the Courts.
The Indian Supreme Court has in the main adopted the moderate approach. Except for an occasional articulation of
disagreement, the Court has reiterated this principle of non-abdication and performance of essential law making
functions across judicial decisions. This standard and the Courts perception of the legitimate division of power
between the legislature and the executive has guided judicial interpretation of provisions whereby the power to
make laws is delegated to the executive. The second chapter of this part examines how the Indian judiciary has
pronounced upon the relationship between the legislature and the executive in the matter of delegation of legislative
power.
End of Document
What is Delegated Legislation?
NS Bindra
What is Delegated Legislation?
The legislature is empowered to delegate the power of legislating to executive authorities. As a general definition,
one could say that delegated legislation means the exercise by a subordinate authority such as a minister of the
legislative power delegated to him by the legislature, or it means the enactment of subsidiary laws passed by the
minister in the shape of departmental regulations, and other statutory rules and orders.1 The power to legislate,
when delegated by Parliament, differs from Parliaments own power to legislate. Parliaments power to legislate is
limited by the Constitution, whereas the power of the delegatee to legislate is confined by the power prescribed to it
by the Parliament. Delegated Legislation has been defined by Salmond as that which proceeds from any authority
other than the sovereign power and is therefore dependent for its continued existence and validity on some superior
or supreme authority.2 It has also been defined as the exercise by a subordinate agency of the power delegated to
it by the legislature or the subsidiary rules themselves which are made by the subordinate agency in pursuance of
the power conferred on it by the legislature.3
The Act of Parliament which delegates the power may in so many words lay down that regulations, rules, orders,
warrants, minutes, schemes, bye-laws, or other instrumentsfor delegated legislation appears under all these
different namesmay be made or approved under defined conditions. On the other hand, the statute may merely
authorise the minister to prescribe or approve certain requirements or to appoint a day or fix some standard, but
give no directions about the particular method or form to be adopted in framing his decision; he may even be left
free to perform his prescribing, approving, appointing or fixing by an ad hoc decisionperhaps even informally in the
course of correspondencewithout any obligation to formulate it in general terms as a legislative regulation.
In Agricultural Market CommitteevShalimar Works,4 the Supreme Court held that the reasons for giving delegated
power to the Government to make Rules are various, but the most significant and dominant reasons are that the
areas for which powers are given to make delegated legislation may be technically complex and tedious, and may
require subjective analysis. The legislature may also face paucity of time apart from technical inexpertise. In such a
circumstance, the legislature with an onerous legislative schedule, may enact a skeletal legislation for the executive
to flesh out and implement.
1 . Backpool Corpn v Laocker [1948] 1 All ER 85, p 91, per Scott LJ; quoting from Committee on Ministers Powers
Report, p 15: such delegated legislation is also called subordinate legislation; Re Natesan (1917) ILR 40 Mad 125, p
161.
2 . John Salmond, Jurisprudence, 12th ed., p. 116, (1978).
3 . S. N. Jain & M.P. Jain, Cases and Materials on Administrative Law, p. 160 (1994).
4 . AIR 1997 SC 2502 [LNIND 1997 SC 1759]: (1997) 5 SCC 516 [LNIND 1997 SC 1759]
End of Document
Limits on Delegated Legislation and Excess Delegation
NS Bindra
The problem of delegation of powers like that of the separation of powers first involves constitutional law and only
next statutory construction.5 In the fifth edition of Craies on Statute Laws the chapter on this subject was almost
entirely rewritten. Sir Charles E Odgers had observed therein:6
In subordinate legislation the Legislature delegates to some person or body of persons the duty of framing regulations for
carrying out the policy and objects of the statute. One of the dangers of delegation, unless controlled, is that the delegate or
delegates may in effect legislate without the sanction of Parliament under the guise of issuing orders or regulations under
the relevant Act.
Odgers highlights a significant pitfall of delegating the power to legislate i.e. scope for legislating beyond the
contours of legislative power awarded to the authority. This necessitates a set of safeguards to ensure that
legislation beyond delegated powers does not get introduced through the backdoor. Some instances of safeguards
include: Delegation must be to some trustworthy authority eg, a public department, Strictly defining the parameters
of delegation in the empowering statute;7 consultation of the delegated authority with a prospectively affected
community prior to enacting regulations, publication of the rules and regulations and their visibility, and the scope
for amending or revocation of delegated legislation.8 At present, it seems to be the settled policy of the legislature
to confine its effort to the task of laying down general principles of law and to delegate to subordinate authorities not
only the power of making rules and orders for the purpose of settling the details of the procedure necessary for
giving effect to the general principles but even the principles themselves.
The observation of Wills J. in R v Bird Needes ex p9 summarizes judicial opinion on the limits of delegation. He
held as follows:
I desire in my judgment to adopt a broad principle which is too clear to need cases to be cited for its justificationthe principle
that where a power to make regulation is given to a public body by statute, no regulation made under it can abridge a right
conferred by the statute itself.
In Panama Refining Co.vRyan,10 the Supreme Court of the United States had held that the Congress can delegate
legislative powers to the Executive subject to the condition that it lays down the policies and establishes standards
while leaving to the administrative authorities the making of subordinate rules within the prescribed limits.
In Jatindra Nath Gupta v Province of Bihar,11 the majority of the Federal Court consisting of Kania CJ., and
Patanjali Sastri, Mahajan and Mukherjee JJ., held:
The power to extend the operation of the Act beyond the period mentioned in the Act prima facie is a legislative power. It is
for the legislature to state how long a particular legislation will be in operation, and it cannot be left to the discretion of some
other man.
The subject has been discussed in extenso by the judges of the Supreme Court in Re: Delhi Laws.12 The territory
of India was divided into Part-A, Part-B and Part-C States. The power to make laws for Part-C States (now known
as Union Territories) was delegated to the Central Government. Inter alia, Section 2 of the Part C States (Laws)
Page 2 of 4
Act, 1950, delegated the power of extending laws applicable to Part-A states to Part-C to the Central Government.
It read as follows:
The Central Government may, by notification in the Official Gazette, extend to any Part C State (other than Coorg and the
Andaman and Nicobar Islands) or to any part of such State, with such restrictions and modifications as it thinks fit, any
enactment which is in force in a part A State at the date of the notification and provision may be made in any enactment so
extended for the repeal or amendment of any corresponding law (other than a Central Act) which is for the time being
applicable to that Part C State.
The question before the Court was whether the aforementioned section inter alia was an instance of excess
delegation, and whether the Parliament had the power to delegate an essentially legislative function to the Central
Government.
While there was agreement on the bench as regards the necessity of delegation, three views were propounded on
the bench in relation to the limits on delegation. One view was that Parliament ought not to delegate an essential
legislative function to an external agency; the second view was that Parliament could only delegate ancillary and
incidental functions; while the third was that until there was an effacement or abdication of legislative power in the
course of delegation, the delegation was permissible.
Mukherjea J. observed:
The essential legislative function consists in the determination or choosing of the legislative policy and of formally enacting
that policy into a binding rule of conduct. It is open to the legislature to formulate the policy as broadly and with as little or as
much details as it thinks proper and it may delegate the rest of the legislative work to a subordinate authority who will work
out the details within the framework of that policy
It cannot be said that an unlimited right of delegation is inherent in the legislative power itself. This is not warranted by the
provisions of the Constitution and the legitimacy of delegation depends entirely upon its being used as an ancillary measure
which the legislature considers to be necessary for the purpose of exercising its legislative powers effectively and
completely. The legislature must retain in its own hands the essential legislative functions which consists in declaring the
legislative policy and laying down the standard which is to be enacted into a rule of law, and what can be delegated is the
task of subordinate legislation which by its very nature is ancillary to the statute which delegates the power to make it.
Provided the legislative policy is enunciated with sufficient clearness or a standard laid down the courts cannot and should
not interfere with the discretion that undoubtedly rests with the legislature itself in determining the extent of delegation
necessary in a particular case.
Fazl Ali J. observed:
The legislature must normally discharge its primary legislative function itself and not through others.
Once it is established that it has sovereign powers within a certain sphere, it must follow as a corollary that it is free to
legislate within that sphere in any way which appears to it to be the best way to give effect to its intention and policy in
making a particular law, and that it may utilize any outside agency to any extent it finds necessary for doing things which it
is unable to do itself or finds it inconvenient to do. In other words, it can do everything which is ancillary to and necessary
for the full and effective exercise of its power of legislation.
It cannot abdicate its legislative functions, and therefore while entrusting power to an outside agency, it must see that such
agency acts as a subordinate authority and does not become a parallel legislature.
The doctrine of separation of powers and the judicial interpretation it has received in America ever since the American
Constitution was framed, enables the American Courts to check undue and excessive delegation but the Courts of this
country are not, committed to that doctrine and cannot apply it in the same way as it has been applied in America.
Therefore, there are only two main checks in this country on the power of the legislature to delegate these being its good
sense and the principle that it should not cross the line beyond which delegation amounts to abdication and self-
effacement.
In Gwalior Rayon Silk Manufacturing Co. Ltd. v Assistant Commissioner of Sales Tax,13 Justice Mathew favoured
the abdication test to test the constitutionality of delegated legislation. He held that the legislature comprises a
broader cross-section of interests than any one administrative organ. Hence, it is less likely to be captured by
particular interests. Therefore, there cannot be a transfer of legislative power under the guise of delegation which
would be tantamount to abdication. The doctrine of abdication expresses a fundamental democratic concept but at
Page 3 of 4
the same time we should not insist that law-making as such is the exclusive province of the legislature. The aim of
government is to gain acceptance for objectives demonstrated as desirable and to realize them as fully as possible.
The making of law is only a means to achieve a purpose. It is not an end in itself. That end can be attained by the
legislature making the law. But many topics or subjects of legislation are such that they require expertise, technical
knowledge and a degree of adaptability to changing situations which parliament might not possess and, therefore,
this end is better secured by extensive delegation of legislative power.
In Mahe Beach Trading Co.vUnion of Territory of Pondicherry,14 the Court decidedly ruled on the constitutionality
of delegated legislation and held that if there is an abdication of legislative power or if there is excessive delegation
or if there is a total surrender or transfer by the Legislature of its legislative functions to another body, then it is
impermissible. There is, however, no abdication, surrender of legislative functions or excessive delegation so long
as the Legislature has expressed its will on a particular subject matter, indicated its policy and left the effectuation
of the policy to subordinate or subsidiary or ancillary legislation, provided the Legislature has retained the control in
its hand with reference to it so that it can act as a check or a standard and prevent or undo the mischief by
subordinate legislation when it chooses to or thinks fit.
The limits on the power of the delegatee have also been outlined in the observations of the Supreme Court in
Mahachandra Prasad SinghvChairman, Bihar Legislative Council.15 The appellant was disqualified from the Bihar
Legislative Council on the basis of the Tenth Schedule of the Indian Constitution (Anti-Defection). The appellant
claimed that the order passed by the Chairman was not in compliance with Rules 6 and 7 of the Bihar Legislative
Council Members (Disqualification on ground of Defection) Rules, 1994. This argument was forwarded because the
complaining member had not filed an affidavit along with his petition (a requirement under Rule 6) and hence, his
petition was liable to be rejected (under Rule 7). However, his petition was not rejected and the Chairman acted on
the defective petition.
The Court premised its decision on inter alia Paragraph 8 of the Tenth Schedule, which empowered the Chairman
to make rules to give effect to the Tenth Schedule. The purpose of delegating rule making power to the Chairman
was to assist him in conducting the business of the house. Hence, this delegation would not permit the Chairman to
limit the ambit of the Tenth Schedule. As the Tenth Schedule did not contain the conditions that Rule 6 laid down,
the Court held that the conditions under Rule 6 could at best be considered directory, as considering them to be
mandatory would unreasonably restrict the scope of the Tenth Schedule.
In arriving at this decision, the Court made the following observations on the delegation of legislative power:
The delegate is not intended to travel wider than the object of the legislature. The delegates function is to serve and
promote that object while at all times remaining true to it. That is the rule of primary intention. Power delegated by an
enactment does not enable the authority by regulations to extend the scope or general operation of the enactment but is
strictly ancillary. It will authorise the provision of subsidiary means of carrying into effect what is enacted in the statute itself
and will cover what is incidental to the execution of its specific provision. But such a power will not support attempts to
widen the purposes of the Act to add new and different means of carrying them out or to depart from or vary its ends. The
aforesaid principle will apply with greater rigor where rules have been framed in exercise of power conferred by a
constitutional provision. No rules can be framed which have the effect of either enlarging or restricting the content and
amplitude of the relevant constitutional provisions. Similarly, the rules should be interpreted consistent with the aforesaid
principle.
Hence, in dealing with the challenge to the vires of any statute on the ground of excessive delegation, it is
necessary to inquire whether the impugned delegation involves the delegation of an essential legislative function or
power and whether the statute has enunciated its policy and principle and given guidance to the delegate.16 In
every case it would be necessary to consider relevant provisions of the Act in relation to the delegation and the
question as to whether the delegation is ultra vires or not will have to be decided by the application of the relevant
tests.17
5 . J G Sutherland, Statutory Construction, Third Edn, Vol 1, p 54.

Page 4 of 4
6 . W F Craies, Statute Law, Fifth Edn, pp 260-71 (1952).
7 . Ahmedabad Urban Development Authority v Sharad Kumar Jayantikumar Paswala AIR 1992 SC 2038 [LNIND 1992
SC 424], (1992) (3) JT 417 [LNIND 1992 SC 424] (SC), (1992) SCC 285, AIR 1992 SCW 2255; Govt of Tamil Nadu by
its Secretary RD & LA Dept, Madras 9 v Chengleput Dravidar, Kazhagam by its President, CP Rajamanincakam 99
MLW 159.
8 . The Interpretation Act 1889; s 32 (3).
9 . [1898] 2 QB 340.
10 . 239 U.S. 388 (1935).
11 . AIR 1949 FC 175.
12 . [1951] SCR 747 [LNIND 1951 SC 40], p 997; Schechter Poultry Corpn v US 295 US 495, p 551: is the Sick Chicken
case, it was said by Cardozo J: the delegated power of legislation which has found expression in this Code is not
canalised within banks that keep it from overflowing, it is unconfirmed and vagrant; Bihar Motor Transport Federation
vState of Bihar (1994) 1 Pat LJR 343.
13 . AIR 1974 SC 1660 [LNIND 1973 SC 418]: (1974) 4 SCC 98 [LNIND 1973 SC 418] (K. K. Mathew J., Dissenting)
14 . 1996 (3) SCALE 306 [LNIND 1996 SC 741]: (1996) 3 SCC 741 [LNIND 1996 SC 741]: [1996] Supp 1 SCR 1.
15 . Mahachandra Prasad Singh (Dr) v Hon Chairman, Bihar Legislative Council, (2004) 8 SCC 747 [LNIND 2004 SC
1100].
16 . Registrar of Co-op Societies, Trivandrum v Kunhambu (1989) Ker LT 112 (SC).
17 . Vasanlal Maganlal v State of Bombay [1961] 1 SCR 341 [LNIND 1960 SC 181], p 364, AIR 1961 SC 4, p 7;
Harishanker Bagla v State of Madhya Pradesh [1955] 1 SCR 380 [LNIND 1954 SC 93].
End of Document
Scope of Courts Scrutiny in Delegated Legislation
NS Bindra
The courts should take a cautious approach in construing the subordinate legislation and adopt almost the same
standard as adhered to in interpreting legislation enactments.18 In this regard, Maxwell has opined:19
Where Parliament has delegated its legislative function to a Minister of the Crown without retaining any specific control over
the exercise of that function by the Minister (such as a condition that an order made by the Minister should be laid before
Parliament and be subject to annulment by Parliament) the court has the right and duty to decide whether the Minister has
acted within the limits of his delegated power. Where, however, the power delegated to the Minister is a discretionary
power, the exercise of that power, within the limits of the discretion, will not be open to challenge in a court of Law.
The manner in which courts ought to examine delegated legislation has been well laid out in Organon (India) Ltd. v
Collector of Excise, Mandasaur.20 The petitioner claimed inter alia that Section 5 of the Opium Act, 1878, which
empowered the state to make rules to control the sale and possession of opium, was ultra vires the Constitution as
the power delegated to the State Government was unbridled, uncanalised, uncontrolled and arbitrary.
The Court held that the intent behind the Opium Act was dual i.e. to raise revenue and to discourage consumption,
export or import of opium. Hence, the exercise of Section 5 to make rules relating to the rates of excise duty could
not be assailed as being excessive of the Act. Further, Section 5 empowered the state government, and not an
executive officer, to make rules in this regard. Hence, in the opinion of the Court, Section 5 was not ultra vires
Article 246 as the delegation of power under it was both in consonance with the Act, and had been granted with
requisite safeguards.
In arriving at this decision, the Court delineated an objective set of considerations that ought to be kept in mind
when testing the delegation of legislative power. It observed as follows:
The essential legislative function consists of the determination of the legislative policy and its formulation as a binding rule
of conduct and cannot be delegated by the Legislature. Nor is there any unlimited right of delegation inherent in the
legislative power itself.
The Legislature must retain in its own hands the essential legislative functions and what can be delegated is the task of
subordinate legislation necessary for implementing the purposes and objects of the Act.
Where the legislative policy is enunciated with sufficient clearness or a standard is laid down, the Courts should not
interfere.
What guidance should be given and to what extent and whether guidance has been given in a particular case at all
depends on a consideration of the provisions of the particular Act with which the Court has to deal, including its preamble.
The nature of the body to which delegation is made is also a factor to be taken into consideration in determining whether
there is sufficient guidance in the matter of delegation.
What form the guidance should take is again a matter which cannot be tested in general terms, it will depend upon the
circumstances of each statute under consideration; in some cases guidance in broad general terms may be enough; in
other cases more detailed guidance may be necessary.
One of the most recent expositions on the delegation of legislative power is M/s. Rose Valley Real Estate &
Construction Ltd. & Anr.v Union of India & Ors21 where the petitioners who dealt in real estate were contacted by
SEBI, as they purportedly fell within the ambit of Section 12 (1B) of the SEBI Act and the Collective Investment
Page 2 of 3
Scheme Regulations. They sold plots of land to prospective buyers, expecting earnest money to be paid in
installments over one to five years, and handing over allotment papers once the amount was paid. The purchasers
were at all times entitled to transfer their allotment to any persons as they may intend to do. In the event the
purchasers did not intend to purchase the land after payment of installments towards earnest money, the credit
value was to be adjusted against the consideration money given to the purchasers.
CIS has been defined in Section 2 (1)(ba) of the SEBI Act to mean any scheme or arrangement which satisfies the
conditions specified in Section 11AA. 11AA. (1) Any scheme or arrangement which satisfies the conditions referred
in sub-section (2) shall be a collective investment scheme. (2) Any scheme or arrangement made or offered by any
company under which, (i) the contributions, or payment made by the investors, by whatever name called, are
pooled and utilized solely for the purpose of the scheme or arrangement; ii) the contributions or payments are made
to such scheme or arrangement by the investors with a view to receive profits, income, produce or property,
whether movable or immovable from such scheme or arrangement; iii) the property, contribution or investment
forming part of scheme or arrangement, whether identifiable or not, is managed on behalf of the investors; iv) The
investors do not have day-to-day control over the management and operation of the scheme or arrangement.
The petitioners sought to have the CIS Regulations to be declared unconstitutional and ultra vires the SEBI Act The
judge discussed, in painstaking detail, the salient cases that have struck down delegating provisions, and the two
lines of argument that seemed to emerge. The first being that skeletal legislation that left much to executive
discretion must be viewed as abdication of legislative duty; and the second, that as long as subordinate legislative
powers derived from a statutory provision, that had built in safeguards, and it gave effect to the stated policy goals
of the statute, it would not be interfered. The judge relied on a quote fromJyoti Pershad v Administrator for the
Union Territory of Delhi:22
In the context of modern conditions and the variety and complexity of the situations which present themselves for solution, it
is not possible for the Legislature to envisage in detail every possibility and make provision for them. The Legislature,
therefore, is forced to leave the authorities created by it an ample discretion, limited, however, by the guidance afforded by
the Act. This is the ratio of delegated legislation, and is a process which has come to stay, and which one may be permitted
to observe is not without its advantages. So long therefore, as the Legislature indicates, in the operative provision of the
statute with certainty, the policy and purpose of the enactment, the mere fact that the legislation is skeletal, or the fact that a
discretion is left to those entrusted with administering the law, affords no basis either for the contention that there has been
an excessive delegation of legislative power as to amount to an abdication of its functions, or that the discretion vested is
uncanalised and unguided as to amount to a carte blanche to discriminate. The second is that if the power or discretion has
been conferred in a manner which is legal and constitutional, the fact that Parliament could possibly have made more
detailed provisions, could obviously not be a ground for invalidating the law.
He further pointed out that most scenarios involving delegation being termed arbitrary and unconstitutional involved
gross violation of basic human rights, while in this case the aim of the statute and the Regulations were to prevent
investors from being defrauded, especially in light of historical accounts of such investment schemes being used to
perpetrate fraud on unaware investors. Greater latitude, he opined, must be granted in such situations to the
legislature. The final reason for dismissing the appeal was the fact that the said Regulations were, in fact, laid
before each House of Parliament and were not amended in any manner by it which showed that they had also
obtained parliamentary approval.
Table 1.2 describes the kinds of powers the legislature has delegated and the manner in which the Courts have
perceived such delegation. The Table demonstrates that in the main, the Courts have not questioned the legislative
power to delegate; it is the exercise of the power in specific cases which has more often been invalidated by the
Courts.
18 . PV Mani v Union of India AIR 1986 Ker 86, (1985) Ker LT 722, (1985) ILR 2 Ker 412.
19 . Maxwell, Interpretation of Statutes, eleventh edn, p 292:

As it is axiomatic that the enactments of parliament can never be subject to judicial review, so it is axiomatic that all
enactments made subordinately by virtue of specific statutory or common law authority [are] subject to the test, whether
they fall within the periphery of the power thus conferred.
Page 3 of 3
Allen, Law in the Making, fourth edn, p 461; District and Sessions Judge, Quilon v State of Kerala AIR 1968 Ker 158
[LNIND 1967 KER 264]; court has no power to go into the reason for change in the rules.
20 . (1977) MP LJ 118-B.
21 . W.P. No. 725 of 2011, Calcutta High Court, July 23, 2013.
22 . AIR 1961 SC 1602 [LNIND 1961 SC 193].
End of Document
Forms of Subordinate Legislation
NS Bindra
The chief forms of subordinate legislation, according to Salmond,23 are five in number:
1. Colonial Legislation
Due to the British Parliaments inability to make law for the Indian sub-continent, Royal Charters would vest the
power to legislate in the representative of the monarch in India. For instance, the Charter of 1833 vested legislative
powers for India exclusively in the Governor-General -in council for India. This executive body was empowered to
make laws and regulations for repealing, amending or altering any laws or regulations, which were in force for all
persons irrespective of their nationality.
2. Executive
The essential function of the executive is to conduct the executive departments of state, but it combines with this
certain subordinate legislative powers which have been expressly delegated to it by Parliament, or pertain to it by
the common law. Statute, for example, frequently entrust to some department of the executive government the duty
of supplementing the statutory provisions by the issue of more detailed regulations bearing on the same matter. So
it is part of the prerogative of the Crown at common law to make laws for the government of territories acquired by
conquest or cession, and not yet possessed of representative local legislatures.
3. Judicial
In the same way certain delegated legislative powers are possessed by the judicature. The superior courts have the
power of making rules of the regulation of their own procedure. This is judicial legislation in the true sense of the
term, differing in this respect from the so-called legislative action of the courts in creating new law by way of
precedent.
4. Municipal
Municipal authorities are entrusted by the law with limited and subordinate powers of establishing special law for the
districts under their control. The enactments so authorised are termed bye-laws, and this form of legislation may be
distinguished as municipal.
5. Autonomous
All the kinds of legislation which we have hitherto considered proceed from the state itself, either in its supreme or
in one or other of its many subordinate departments. But this is not necessarily the case, for legislation is not a
function that is essentially limited to the state. The law gives to certain groups of private individuals limited
legislative authority touching matters which concern themselves. A railway company, for example, is able to make
bye-laws for the regulation of its undertaking. A university may make statutes binding upon its members. A
registered company may alter those articles of association by which its constitution and management are
determined. Legislation thus affected by private persons, and the law so created, may be distinguished as
autonomous.
Page 2 of 2
23 . Jurisprudence, Tenth edn, pp 150-61; Keeton, Jurisprudence, second edn 1950, pp 86-89.
End of Document
Validity of Rules, Regulations and Bye-laws
NS Bindra
A law or a statutory rule should be so interpreted as to make it valid and not invalid.24 All bye-laws made by
subordinate authorities are subject to a system of checks. Allen in Law in the Making,25 informs that in England,
some statutes require the approval of different government departments, thus bye-laws made by railway companies
must be approved by the Minister of Transport, and those made by local authorities for public health or good order
and government are subject to supervision and alteration by the Minister of Health. Apart from this ministerial
scrutiny, bye-laws have always been liable to review by the courts. In India, statutory rules are usually required to
be laid before the legislature for scrutiny; but failure to place the rules before the legislature does not affect their
validity.26 Where a literal construction of statutory rules would render them ultra vires of the rule-making authority,
they must be so construed as to be intra vires and held valid rather than be construed ultra vires and initially void.27
A subordinate legislation should be avoided only if a reasonable construction in favour of its vires is not possible.28
The possibility of misuse of a rule is no ground for holding the rule to be bad. It is a sound principle of law, to
assume, that the persons who are in charge of the government are discharging their onerous duties and
responsibilities in a fair and honest manner. This assumption we know from experience, is not always true. But
those deviations from proper conduct are exceptions, which, as is said in logic, prove the rule.29 If they have been
duly made, they have the same force as law itself,30 and no permission is required from anyone to enforce them,
none can resist them.31
The rules governing disciplinary proceedings cannot be treated as administrative directions, but have the same
effect as the provisions of the statute whereunder they are made, insofar as they are not inconsistent with the
provisions thereof.32 Now it is a recognised principle of law that the rules made in pursuance of a delegated
authority must be consistent with the statute under which they came to be made. The authority is given so that the
end provisions of the statute may be better carried into effect, and not with the view of neutralising or contradicting
those provisions.33 The general power to make rules cannot, however, be used, to widen the purposes of the Act
or to add new and different means for carrying out or to depart from, and vary its terms.34 When rules are framed
they may be referred to any power in the Act which validates them.35 Where an authority passes an order which is
within its competence, it cannot fail merely because it purports to be made under a wrong provision if it can be
shown to be within its powers under any other rule.36 According to Sudgen on Powers,37 a donee of a power may
execute it without referring to it, or taking the slightest notice of it, provided that the intention to execute it
appears.38 A regulation or a bye-law may be ultra vires in the sense that it deals with a subject not within the scope
of the power conferred upon the delegated legislature authority, or it may be ultra vires because, although dealing
with such a subject, it exceeds the prescribed limits within which the authority may be exercised.39
Lord Alverstone CJ., in London County Council v Bermondsey Bioscopa Co,40 emphasised the:
(well-recognised principle that where there is a competent authority to which an Act of Parliament entrusts the power of
making regulations, it is for that authority to decide what regulations are necessary; and any regulation which they may
decide to make should be supported unless they are manifestly unreasonable or unfair.
Rules
Rules made under any Act cannot override the specific provisions of the parent Act. The purpose of the enactment
of rules is to provide for procedural matter or matters which are subsidiary to the provisions of the Act.41 They may
in some cases explain the provisions of the Act and it might in certain cases be legitimate to read the rules along
with the provisions of the Act in order to find out the true intention of the legislature. In enacting the latter, no rules
can ever be construed to override the specific provisions of the Act itself.42 Although rules made under the Act
Page 2 of 7
cannot override the Act, they may be used as contemporanea expositio of an ambiguous provision in the Act,
especially when they are to have effect as if enacted in the Act.43
Odgers opined in The Construction of Deeds and Statutes:44
Rules which must be read together with the Act under which they are made, cannot repeal or contradict express provisions
in the Acts from which they derive their authority, and if the Act is plain, the rule must be interpreted so as to be reconciled
with it, or, if it cannot be reconciled, the rule must give way to the plain terms of the Act.45
For instance, it is for the legislature to confer a right of appeal or revision, or not to confer. The right so conferred
may be a restricted one. If the right conferred is unrestricted the executive can only regulate the right in procedural
matters but cannot impose impediments and restrictions of an onerous and burdensome nature in its exercise not
contemplated by the statute under which the right is conferred.46 It is a well-recognised principle of interpretation of
statutes that if the rules framed under the statute are in excess of the provisions of the statute of the statute or are
in contravention of or inconsistent with such provisions then these provisions must be regarded as ultra vires of the
statute and cannot be given effect to.47 It would be a grave departure form well-recognised legislative practice and
it would be a mockery of the legislature if the existence or efficacy of the provisions of a statute is left to the kind
mercies of the rule-making powers of the government. No interpretation favouring such a construction could
commend itself to courts. It is something revolting to our jurisprudence to imagine that the command of the
legislature could be overriden by the fiat of the government.48
The judgment in Municipal Board, Bareilly v Bharat Oil Co49 exhibits the application of the rule of lex posterior
between the Municipal Account Code, 1925 and rules framed in 1963 under the Uttar Pradesh Municipalities Act,
1916. Ruling that the Municipalboard of Barielly had the authority to levy octroi on mineral oils by virtue of the 1963
Rules (in contravention of the 1925 Rules), Fathima Beevi J.held as follows:
The rule making power under Section 296 read with Section 300 (2) of the Act enables the State Government to except
anyone municipality from the operation of the general rule by express provision in that behalf. When the identical authority
in exercise of its rule making power duly frames the rules in respect of the same matter expressly providing that the new
rules shall apply to a particular municipality in supersession of the existing rules, it must be deemed that existing rules are
repealed to that extent. The 1963 rules had been framed under Section 296 of the Act in supersession of the existing rules
after publication by the State Government, in the. Gazette as provided under Section 300 and therefore Rule 131 in the
1925 Rules ceased to have any operation in respect of the matters dealt with therein so far as the Bareilly municipality is
concerned.
An instance of interpretation of rules keeping in view the limits imposed on it by the parent Act is Harbans
SinghvState of Punjab.50 The controversy before the Court was the interpretation of the expression by lot in Rule
33 of the Punjab Gram Panchayat Election Rules, 1960 which read as follows:
If after the counting of votes is completed, an equality of votes is found to exist between any candidates, and the addition of
one vote will entitle any of those candidates to be declared elected, the Presiding Officer or the Returning Officer, as the
case may be, shall forthwith decide between those candidates by lot, and proceed as if the candidate on whom the lot falls
has received an additional vote.
The controversy became ripe because in a panchayat election that resulted in a tie, the returning officer had drawn
lots three times and declared the petitioner as the winner. One of the respondents had lost against the petitioner,
and claimed in the lower Courts that the provision only allowed for a singular draw of lots. The lower Courts agreed
with the respondent and held the election of the petitioner to be void. The petitioner appealed to the Supreme Court.
The Court ruled in favour of the respondent, and held as follows:
The mandatory language of the rule further is that the drawing of the lot has to be forthwith. meaning thereby that it has to
be the next immediate step. So, certainty being one of the essential attributes of laws, the interpretation of the rule which
can give rise to looseness and speculation has to be discarded, and rather it has to be put on a firm and straight footing.
The Punjab General Clauses Act, though it permits that singular in a statute can be read as plural, but this is subject to the
qualification of the context so permitting. Herein, the context of the rules specifically puts it at the level of a singular lot for a
single additional vote.
In Kishna v State of Rajasthan,51 the court considered the validity of Rajasthan Prisoners Open Air Camp Rules,
1972, formulated under Section 59 of the Prisons Act, 1894. The rules were formulated with a view to sending
Page 3 of 7
convicts to open air camps to encourage good conduct, satisfactory performance of work and a life of self-discipline
among the convicts of Rajasthan and to provide them with a pre-release opportunity to learn social adjustment and
economic self-dependence. Prisoners above the age of 60 and below 25 were not eligible to be sent to these open
camps. The court held that the object of rehabilitating prisoners would be achieved by allowing the petitioners who,
despite their advanced age, are allowed to stay with the rest of their family, who were already in the open camps.
Hence, the embargo was not in consonance with the Act.
In Gopalakrishna Pillai v State of Kerala,52 the Court delved on the relation between the conferral of power by a
legislative provision and the exercise of that power sans the enactment of rules. It held that the expression subject
to such rules as may be prescribed in Section 85 of the Kerala Municipal Corporations Act, 1961, did not operate as
a condition precedent to the exercise of power under that section.
However, in Consumer Online Foundation vUnion of India53 the Supreme Court required that if a power has to be
exercised according to prescribed procedure then it can only be exercised if the required procedure is followed.
Section 22A, of the Airports Authority Act, 1994, allowed the Airports Authority to levy on, and collect from, the
embarking passengers at an airport, with the approval of the Central Government, development fees at a
prescribed rate. Section 22A was further amended in 2008 to include a mechanism of prescribing the rate under
Section 13 of the Airports Economic Regulatory Authority of India Act, 2008. The dispute arose from the fact that
Delhi International Airport Limited (DIAL) and Mumbai International Airport Limited (MIAL) had been charging
development fees on the basis of communications to them from the Central Government, but without any
prescription from the Authority.
On a strict and plain interpretation of Section 22A, the Court held that since the rules had not prescribed the rate at
which the development fees could be levied and collected from the embarking passengers, levy and collection of
development fees from the embarking passengers was without the authority of law. After the 2008 Amendment, the
power to prescribe the rate of development fees was vested with the Airports Economic Regulatory
Authority.Pendente lite, the Authority passed a notification validating the levy for DIAL, but no such notification was
passed for MIAL. Hence, the Supreme Court held that on a strict interpretation of Section 22A, MIAL was not
entitled to collect development fees.
In Radhey Sham v Chief Commr, Ajmer,54 the controversy related to Rule 7 of the Ajmer State Municipalities
Election Rules, 1957. Section 30 (2) of the Ajmer-Merwara Municipalities Regulations, 1925, laid down the
qualifications of persons entitled to be enrolled as electors of the municipality. Rule 7 purports to lay down that the
municipal roll shall be the same as the roll for the parliamentary constituency representing the area covered by the
municipality. There may be persons who may have without having the right got themselves enrolled as voters, and
no one may have attached any significance to the entry of their names at that time. If a fresh roll is prepared for the
Municipality it would be open to persons to file an objection that though the name of a particular person was entered
in the roll of the parliamentary constituency, he was not entitled to be registered as such. Again, there may be
persons whose names may have been entered in the parliamentary constituency in an area which is not included in
the municipality but who has by reason of the rule got qualified to get their names entered in the municipal roll as
well. Hence, Rule 7 was held to not be in consonance with Section 30.
In Rajendra Nath RoyvState of Bihar,55 under Section 8 of the Patna Municipal Corporation Act, 1952, the
Corporation was to consist of fifty-two Councillors including three Councillors from the following special
constituencies:
(i) one Councillor to be elected by the Bihar Chamber of Commerce.
(ii) one Councillor to be elected by the registered trade unions having their registered offices at Patna.
(iii) one Councillor to be elected by the registered graduates of the Patna University having their normal place
of residence at Patna.
To give effect to this provision, the State Government framed rules called the Patna Municipal Corporation Election
(Special Constituencies) Rules, 1953, of which Rules 5 and 8 (2) provided conditions under which members of
trade unions shall be enrolled on the electoral rolls for the special constituencies.
The petitioner took issue with these rules, and argued that they were illegal and ultra vires to the extent of providing
for the preparation of electoral rolls for members of registered trade unions and not for trade unions in the corporate
capacity. The essential argument of the petitioner was that the parent statute envisaged trade unions to be
registered on the electoral rolls for special constituencies, and not their individual members.
Page 4 of 7
The judiciary agreed with the petitioner, and held that if the legislature intended members of trade unions to be
registered on the electoral rolls, it would have stated the same in clear and explicit language. Hence, the impugned
rules were held to be ultra vires the parent Act.
In arriving at this decision, the Court held:
The argument of the Advocate General really means that we must add the phrase the members of before the expression
the registered trade unions in that section. But that would be legislation, not interpretation. If a gap is disclosed, the remedy
lies in an Amending Act. It is not the function of the Court to fill up the gap it would be a usurpation of legislative power
under the thin guise of interpretation.
On the operation of rules, the Kerala High Court differentiated between statutory provisions and rules in RKV
Motors v Regional Transport Officer.56 It held that rules made under Section 28 of the Motor Vehicles Taxation Act
(Kerala), 1976, were a species of delegated legislation that had to be notified in the official gazette. As they were
rules and not legislative provisions, the date of their commencement could not be the date under which the
notification was issued but the date on which the gazette was released to the public. Hence, the date on which the
gazette was released ought to be considered the date on which rules became effective and operative. The Court
held that an Act of the legislature would come into operation from the date it received the assent of the President,
but the same was not the case with subordinate or delegated legislation.
Statutory Rules Forming Part of the Original Schedule
In Union of IndiavSatyendra Nath Banerjee,57 the court dealt with the status of rules that were appended to the
original schedule of the statute. The Court had to consider the effect of rules appended to the form of a schedule to
the Bengal Public Demands Recovery Act, 1913. Section 38 of the concerned Act read as follows: The rules in
Schedule II shall have effect as if enacted in the body of this Act, until altered or annulled in accordance with the
provisions of this Part. It was argued that the effect of Section 38 was that if there was an inconsistency between a
rule and a provision of the Act, only the rule of lex posterior would apply as both the rule and provisions of the Act
had been deemed to be at par in status. This argument led the Court to decide whether rules appended to an Act
would operate as a part of the statute, or would they be considered as an instance of delegation of legislative power
inferior to the parent Act.
To arrive at a decision, the Court looked at the source of the rules. The rules had been enacted by the Board of
Revenue in 1914 and the original Schedule II had been fully replaced. Treating this as a pivotal concern, the Court
held that the rules in this case had to give way to the Act because the rules were not from the original schedule, but
sourced their origin to an executive body. The Court held:
If the Rules concerned were in the original schedule, then, they were part of a legislative enactment in every sense of the
word and in such a case the principle might have to be applied, namely, that the later provision shall be effective. Here,
however, the provision in the rules has been effected by a non-legislative body under rule-making power. Therefore, the
principle applied that by rule or regulation you cannot affect a provision of the Act, even though it is to be considered as
embodied in the Act and forming part of it. As a rule it must give way to the provisions in the Act.
Statutory rules that are not part of a Statute
Where it is provided that rules framed under an Act and duly published shall thereupon have effect as enacted in
the Act itself, it is the duty of the court to construe an Act in such a manner as to give effect to its provisions if it is
possible to do so, and this can be done by reading the rules, as part of the section under which they are framed and
not as part of the rest of the Act.58 Rules and regulation do not lose their character as rules and regulations, even
though they are to be of the same effect as if contained in the Act. It is well-settled that rules made under a statute
must be treated for all purposes of construction or application exactly as if they were in the Act and are to be of the
same effect as if contained in the Act and are to be judicially noticed for all purpose of construction and application.
Such rules cannot be treated as administrative directions.59 They continue to be rules subordinate to the Act, and
though for certain purposes, including the purpose of construction, they are to be treated as if contained in the Act,
their true nature as subordinate rule is not lost.
The application of these principles can be seen in Chief Inspector of Mines v Karam Chand Thapar.60 The question
before the Court was whether after the repeal of the Mines Act, 1923 and the enactment of the Mines Act, 1956, the
Page 5 of 7
regulations passed under Sections 29 and 30 of the earlier Act would survive the repeal and continue to operate.
The Court held that the Mines Act, 1923, by virtue of being a Central Act, was open to the application of Section 24
of the General Clauses Act, 1897. The relevant portion of Section 24 read as follows:
Where anyCentral Act.. is repealed and re-enacted with or without modification, then, unless it is otherwise expressly
provided, any appointment, notification, order, scheme, rule, form or bye-law...shall, so far as it is not inconsistent with the
provisions re-enacted, continue in force.
Premising its opinion on Section 24 of the General Clauses Act, the Court held that executive legislation, which is
passed by recourse to a power given by an Act, would survive the repeal and re-enactment of the Act. Hence, the
Court held that regulations made under Section 29 of the 1923 Act would continue to remain in force even after the
repeal of the Act.
Clash between Statutory and Executive Powers
In MrvMr61 the applicability of Medical Council of India Regulations on admission of students for post graduate
courses in the field was at issue. The Regulations sought to have a National Eligibility Entrance Test, create state
based merit lists and have admission granted to students on the basis of these lists. Several writ petitions were filed
against the implementation of these Regulations, one of which was by Gujarat University, which did not object to
using merit lists based on NEET, but wanted to give preference to Gujarat University students, as required by the
Universitys own rules. Several students opposed this stance, stating that the MCI PG Regulations would require
admission to be granted solely on the basis of merit, as determined by NEET, and any other preference criterion
would stand repugnant to the Regulations.
The petitioners argument basically was that the State government could make executive regulations in the absence
of any statutory rules on the subject (in a void), but where there were statutory provisions in place, the government
had no such power. There is no dispute about the fact that the State has got control over the State aided
institutions. Therefore, in the matters of education in the State of Gujarat, the State is empowered to take
administrative and policy decision. For such purpose, the State can resort to Article 162 of the Constitution of India.
However, the State can pass executive orders for its policy decision in respect of the matters where there is no law
legislated or statutory Rules framed under such legislation. If there is already provision in the law for any matter, the
Court while exercising the judicial review can always find out whether such executive order is in violation orultra
vires to the existing statutory Rules or the law. If the Court finds that any such decision of the State Government
through any executive order violates any statutory Rule or in excess of the power vested in it, the Court can
certainly strike down the decision of the State Government to the extent required.
Scope of statutory rules
Statutory rules framed under the powers conferred by an Act become an integral part of the Act.62 In Saint Johns
Teacher Training Institute v Regional Director, NCERT,63 the question before the Court was whether was whether
Regulations 5 (e) and 5 (f) framed by National Council for Teachers Education are ultra vires the provisions of
National Council for Teacher Education Act, 1993. A teachers training institute sought permission from the Regional
Director, National Council for Teacher Education (Southern Committee) Bangalore, to start a course in elementary
education training. The applicant was asked to obtain a No Objection Certificate from the State Government before
its application could be considered. The applicant contended that the Act had laid down no such requirement;
hence this requirement introduced by the Regional Committee was beyond its powers. The Committee on the other
hand argued that there were only four Regional Committees in the Country and it was physically impossible for
them to obtain the data required to fulfill their responsibilities under the Act. The State Government were involved to
obtain the requisite material on which the committee could exercise its judgment. The Court observed:
The question whether any particular legislation suffers from excessive delegation has to be decided having regard to the
subject matter, the scheme, the provisions of the Statutes including its preamble and the facts and circumstances in the
background of which the Statute is enacted.
The Court accepted the contention of the respondent that since there were only four Regional Committees in the
whole country, it would be impossible for the Regional Committee to obtain complete particulars of applicants.
Hence, the delegation to the State Government or to the administration of the Union Territory in which that
institution is located is carried out by the Regional Committee through Regulations 5 (e) and 5 (f). The Court held
that the impugned Regulations were facilitating the Regional Committee in discharging its duties.
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Validity of Enactment cannot be saved by Statutory Rules
Rules framed under an Act cannot be said to save the Act.64 Rules do not control the construction to be placed on
the provisions of the Act, nor can they enlarge the meaning of the section.65 The validity of an Act of a competent
legislature does not depend upon what some subordinate authority, which the rule-making authority is, chooses to
do or not to do.66
Rules as an aid to construction of ambiguous statutes
Where the construction of the Act is ambiguous and doubtful on any point, or where more than one construction is
possible recourse may be had to the rules which may have been made by the rule-making authority thereunder.
In DLF Qutab Enclave Complex Educational Trust vState of Haryana,67 the issue was whether the license provided
to the lessee prohibited transfer of the land to third parties. The Supreme Court perused a draft rule whereby a
condition was imposed in the license that No third party rights will be created without obtaining the prior permission
of the Director. The Court held that the draft rule went on to show that the legislature sought to remedy a mischief
which had existed prior to the drafting of the rule. The draft rule was held to be descriptive of the fact that prior
permission was not required before its drafting.
24 . Takhatray v State of Gujarat [1970] 1 SCR 244 [LNIND 1969 SC 158], p 250.
25 . C K Allen, Law in the Making, fourth edn, pp 462-63. (1958).
26 . Jan Mahommad Noor Mahommad v State of Gujarat AIR 1966 SC 385 [LNIND 1965 SC 194].
27 . Burma-Shell Co v Manmad Municipality AIR 1958 Bom 43 [LNIND 1957 BOM 69], (1957) ILR Bom 756.
28 . Gosulananda v President Dist Board AIR 1964 Cal 568 [LNIND 1963 CAL 59], p 571, per D Basu J.
29 . A Noronha v State of Mysore AIR 1966 Mys 267, p 269, per Hedge J.
30 . Madhya Pradesh State Road Tpt Corpn v Ramachandra (1977) MP LJ 341.
31 . Dy Commr v President, Notified Area Committee AIR 1949 All 683, p 684.
32 . State of Uttar Pradesh v Babu Ram Upadhyaya AIR 1961 SC 751 [LNIND 1960 SC 292].
33 . Rajam Chetti v Seshhayya (1895) ILR 18 Mad 236, p 245; Raghanallu Naidu v Corpn of Madras AIR 1930 Mad 648
[LNIND 1929 MAD 338].
34 . Shankarlal Laxminarayan Rathi v Authority under Minimum Wages Act (1979) MP LJ 15.
35 . Gulabbai v Board of Revenue AIR 1957 MP 43.
36 . Bala Kotiah v Union of India AIR 1958 SC 232 [LNIND 1957 SC 133]; Prem Shanker Sharma v Collector 1962 Jab LJ
997 AIR 1962 MP 262 [LNIND 1962 MP 121].
37 . Sudgen, (Lord St Leonard) Treatise on Powers, eighth edn, p 289 (1861).
38 . Pandhurst v Kiernan 24 CLR 120, p 135; Joseph v Colonial Treasurer, NSW 25 CLR 32, p 52, per Gavan Duffy J.
39 . Young v Tockassie 2 CLR 420, p 477.
40 . [1911] 1 KB 445, (1911) 80 LJKB 141, p 144; quoted in Khurai Municipality v Kaluram Hiralal AIR 1944 Nag 73, p 75,
(1943) ILR Nag 740; Varma v Emperor (1933) ILR 60 Cal 689, AIR 1933 Cal 234.
41 . Shanta Prasad v Collector, Nainital(1978) All LJ 126; Dattatraya Narhar Pitale v Vibhakar Kinkar Gokhadle (1975)
Mah LJ 701 [LNIND 1974 BOM 16]; Narayana v Food Inspector, Calicut Corpn (1979) Ker LT 469; Umesh Thakkur v
State of Bihar (1994) 1 Pat LJR 727.
42 . Ganpat v Lingappa AIR 1962 Bom 104 [LNIND 1961 BOM 28]-05; Adarsh Industrial Corpn v Marker Committe,
Karnal AIR 1962 Punj 426, p 430, per Tek Chand J; Devjeet v Gram Panchayat 1968 Raj LW 231: if the rule provides
anything which prevents the result aimed at by the statute, the rule-making authority goes beyond its power; Secretary,
Department of Excise and Commercial Taxes v Sun Bright Marketing Pvt Ltd, Chhattisgarh, (2004) 3 SCC 185 [LNIND
2004 SC 204]; Lalit Mohan Pandey v Pooran Singh, (2004) 6 SCC 626 [LNIND 2004 SC 569]; Exon Building Materials
v CCE, Bombay, (2005) 11 SCC 416.
Page 7 of 7
43 . Synthetics Ltd, Ujjain v Union of India 1982 Jab LJ 279, (1982) MP LJ 340; Central Bank of India v Workmen AIR
1960 SC 12 [LNIND 1959 SC 113].
44 . C E Odgers, Construction of Deeds and Statutes, p 283 (second edn, 1946).
45 . Quoted James, LJ in ex p Davies [1872] 7 Ch A 526, p 529; Re New Sind AIR 1942 Sind 65, p 71 (SB); Poslson
Distillery v State of Kerala (1989) 1 Ker LT 962.
46 . Daya Krishnan v Excise and Taxation Officer AIR 1966 Punj 490, (1966) 68 Punj LR 673.
47 . Barisal Co-op Central Bank v Benoy Bhusan AIR 1934 Cal 537; Municipal Corpn v Saw Willie AIR 1942 Rang 70, p
74.
48 . Rama Rao v Mund Kur AIR 1960 Mys 313-14, per Hedge J.
49 . AIR 1990 SC 548 [LNIND 1989 SC 677].
50 . Harbans Singh v State of Punjab AIR 1982 P&H 402.
51 . (2004) 2 SCC 608 [LNIND 2004 SC 1474].
52 . (1976) Ker LT 755.
53 . (2011) 5 SCC 360 [LNIND 2011 SC 456].
54 . AIR 1956 Ajm 25.
55 . Rajendra Nath Roy v State of Bihar AIR 1954 Pat 312.
56 . 1982 Ker LT 166.
57 . Union of India v Satyendranath AIR 1955 Cal 581 [LNIND 1954 CAL 175]: under s 51 of the Bengal Public Demands
Recovery Act 1913, clear right cannot be taken away or modified by r 43 in Sch II or regulation made under rule-making
power of board of revenue.
58 . Kandasami Pillai v Emperor (1919) ILR 42 Mad 69, p 73; Kunhikrishna v Nadapuram S Co-op Bank (1987) 1 Ker LT
201.
59 . Harilal v Dy Director of Consolidation(1982) All LJ 223.
60 . Chief Inspector of Mines v KC Thapar AIR 1961 SC 838 [LNIND 1961 SC 57], p 845.
61 . C/SCA/9018/2013 decided on June 28, 2013.
62 . Ram Autar Santosh Kumar v State of Bihar AIR 1987 Pat 13, (1986) BLJ 700, 1986 Pat LJR 818 (HC).
63 . (2003) 3 SCC 321 [LNIND 2003 SC 175].
64 . State of Bombay v United Motors (India) Ltd AIR 1953 SC 252 [LNIND 1953 SC 42].
65 . His Holiness Sri-la-Sri Ambalavana Pandara Sannathi Avergal v Commr, Hindu Religious and Charitable
Endowments, Madras (1980) 93 LW 224.
66 . State Bombay v United Motors (India) Ltd AIR 1953 SC 252 [LNIND 1953 SC 42].
67 . (2003) 5 SCC 622 [LNIND 2003 SC 213].
End of Document
Regulations
NS Bindra
Regulations
In recent years the term regulations has been often used to denote ordinances having the force of law made by
subordinate authorities under delegated powers.68 Regulations framed under an Act are of very great importance.
Such regulations are framed for the successful operation of the Act. Without proper regulation, a statute will often
be worse than useless.69 The contents in the correspondence exchanged between the officers cannot override the
express provisions of the regulations made under any Act.70 Where the legislature enacts that All orders and
regulations made under this section shall have the force of law it means only that such orders and regulations shall
have an obligatory character analogous to that of the law (the word law, here is not synonymous with statutory law
or with statute. Here in the expression force of law the word law is used in its generic sense. It applies as well to the
common law as to the statutory law.71
68 . Lloyd v Wallach (1915) 20 CLR 299, per Sir Samuel Griffth CJ.
69 . Chief Inspector of Mines v KC Thapar AIR 1961 SC 838 [LNIND 1961 SC 57], p 843.
70 . Himachal Pradesh State Electricity Board v Somdutt Uppal AIR 1993 SC 1234.
71 . R v Singer(1940) 4 DLR 151, 164 (Canada).
End of Document
Executive Instructions
NS Bindra
Executive instructions issued by either the Government of India or the State Government can have no binding force
on the interpretations of statutory rules, nor can they override or supersede statutory rules.72 It is well-settled that
public orders publicly made in exercise of statutory authority have to be construed objectively with reference to the
language used in the order itself.73 The court must interpret the statutory rules in accordance with the language
used in the statutory rules, in the light of well-established rules of interpretation. Administrative instructions issued
by the government departmental authorities did not conclude a judicial determination of the question.74 Notes to a
rule are executive instructions and are promulgated with rules in exercise of legislative power. The notes are made
contemporaneously with the rules. The function of the notes is to provide procedure and to control discretion. The
real purpose of the notes is that where rules are silent the notes will fill up gaps.75
A case in point as regards the use and scope of executive instructions as a tool of interpretation is Ram Adhar
SinghvState of Bihar.76 The case concerned Rule 75 of the Bihar and Orissa Service Code, 1950, which was
amended in the same year to empower the State Government to make a government servant with twenty-five years
of service compulsorily retire if his efficiency and industry in the service have not been satisfactory. The petitioner
was served with a similar notice. A note appended to the concerned rule read as follows:
Compulsory retirement effected in pursuance of this rule amounts to removal from service with-in the meaning of clause (2)
of Article 311 of the Constitution of India and Government servant so compulsorily retired shall be given a reasonable
opportunity to show cause against the action proposed to be taken against him
It was argued by the petitioner that the note formed part of the rule, and was therefore binding on the government
i.e. he ought to have been given an opportunity to show cause.
The Court disagreed with the petitioner, and held that the note is merely the view of the government on the import
of Rule 75. The controversy before the Court as to whether compulsory retirement under Rule 75 was tantamount
to removal from service under Article 311 of the Constitution of India was a question that demanded judicial
interpretation by a proper Court, and the view of the executive in this regard could not be considered binding and
conclusive.
In this regard, the Court relied on the following observation from Crawford:
As a general rule executive and administrative officers will be called upon to interpret certain statutes long before the courts
may have an occasion to construe them. Inasmuch as the interpretation of statutes is a judicial function, naturally the
construction placed upon a statute by an executive or administrative official will not be binding upon the court. Yet where a
certain contemporaneous construction has been placed upon an ambiguous statute by the executive or administrative
officers, who are charged with executing the statute, and especially if such construction has been observed and acted upon
for a long period of time, and generally or uniformly acquiesced in, it will not be disregarded by the courts, except for the
most satisfactory, cogent or impelling reasons.
The Court held similarly in Krishna Verma Raja v Dist Education Officer, Kasaragad,77 where it considered an
executive note to Rule 51 of the Kerala Education Rules, 1959. The Court held that as the note was statutory, the
Page 2 of 3
scope of the concerned Rule had to necessarily be judged in the light of the clarification given by the rule-making
authority in the appended note. As per the Court, the intention of incorporating the note was to clear up any
possible ambiguity existing in the main body of the rule or to fill any lacuna or gap.
The Orissa High Court added to the discourse through its discussion in Durga Charan Das v State of Orissa,78
where it held that if an established practice grew on the basis of interpretation of service rules given by higher
administrative authorities, the High Court could use the interpretation as a useful guide while interpreting the rules,
though it was not strictly bound either by the opinion given by the Public Service Commission or by the Governor as
regards the construction of a statutory service rule.
In State of Madhya Pradesh and AnrvG.S. Dall and Flour Mills79 the Madhya Pradesh Government, in exercise of
powers under Section 12 of the MP General Sales Tax Act, 1958 issued a notification exempting, conditionally, a
certain class of traders based in specified districts, who commenced production post April 1, 1981, from payment of
tax under the Act. When the assessees approached the Director of Industries for a certificate of exemption, it was
denied to them as they were traditional industries a term neither defined in nor excluded from ambit of the
notification. They, therefore, sought the exemption as per the notification. The State on the other hand, relied on
Rule 13 of the M.P. (Deferment of payment of Tax) Rules, 1983 and on certain instructions that had been issued by
the Government that dealt with the grant of certificate of eligibility to new industrial units claiming exemption from or
deferment of payment of sales tax, as being executive instructions that must be factored into the interpretation of
the relevant notification.
The assessees went through several rounds of litigation, the final one being the Full Bench of the MP High Court,
which agreed with the States arguments and, applying the principle of contemporanea expositio, read the exception
barring traditional industries into the notification. The Supreme Court turned this decision around on these grounds:
The Full Bench has considered those instructions to be conclusive on two grounds--on the doctrine of
contemporaneaexpositio and on the principle that executive instructions can always be issued to supplement statutory
instruments so as to fill up areas on which the latter are silent. In our opinion, neither of these grounds is tenable. It is true
that the principle of contemporanea expositio is invoked where a statute is ambiguous but is shown to have been clearly
and consistently understood and explained by the administrators of the law in a particular manner. This doctrine has been
explained and applied in a numbers of cases of this Court (e.g. See Varghese v L.T.O.,80 in addition to the cases referred
to by the Full Bench). As pointed out by Sri Salve, its applicability in the construction of recent statutes, and that too in the
first few years of their enforcement, has been doubted. But, this apart, the principle will not be applicable here for two
reasons. In the first place, the instructions of 1983 do not anywhere expound the terms of the notification. They do not give
any indication that the state had applied its mind to the precise terms of the notification or their interpretation. They do not
explain or clarify that, though the notification is silent, it has been intended that the limitations of the previous schemes
should be read into it. Secondly, the cases referred to will show that the doctrine applies in cases where the plea is that,
though the language of the statute may appear to be wide enough to seem applicable against the subject in particular
situations, the State itself--which was the progenitor of the statute--had not understood it in that way. But, to apply the
doctrine to widen the ambit of the statutory language would, however, virtually mean that the State can determine the
interpretation of a statute ipse dixit. That, certainly, is not, and cannot be, the scope of the doctrine. The doctrine can be
applied to limit the State to its own narrower interpretation in favour of the subject but not to claim its interpretation in its
own favour as conclusive.
The second ground on which the Full Bench has sought to invoke the instructions is also not correct. Executive instructions
can supplement a statute or cover areas to which the statute does not extend. But they cannot run contrary to statutory
provisions or whittle down their effect.
72 . Babulal Chowdhury v Editor and Publishers, New Bharat 1982 Jab LJ 230.
73 . Yograj Behramji Sachdeva v National Textile Corpn Ltd Madhya Pradesh (1983) MP LJ 789.
74 . Williams Tacks & Co Ltd Madras v State of Madras AIR 1955 Mad 656 [LNIND 1955 MAD 55].
Page 3 of 3
75 . Kunhi Krishnan v State of Kerala (1982) Ker LT 13 ; quoting Supreme Court in Tara Singh v State of Rajasthan AIR
1975 SC 1487 [LNIND 1975 SC 128], p 1490.
76 . Ram Adhar Singh v State of Bihar AIR 1954 Pat 187; Central Inland Water Transport Corpn Ltd v Broja Nath Ganguly
AIR 1986 SC 1571 [LNIND 1986 SC 560], 1986 Lab IC 1312, 1986 (2) Supreme 479, 1986 SCC 429 (Lab), (1986) 2
Cur LR 322, (1986) 2 Cur CC 335, (1986) 2 Lab LJ 171, (1986) 2 SCJ 201, (1986) 2 Serv LJ 320, (1986) 2 LR 345,
(1986) Lab LN 382, (1986) 3 Comp LJ 1, (1986) 60 Com Cas 797.
77 . (1976) Ker LT 506.
78 . AIR 1961 Ori 65: (1963) ILR Cut 470.
79 . AIR 1991 772.
80 . [1982] 1 S.C.R. 629 [LNIND 1981 SC 373].
End of Document
Notifications
NS Bindra
Notifications
A notification has no statutory force and cannot override statutorily made rules.81 One of the practical and effective
ways of protecting the purpose is to see how far the suggested meaning destroys and defeats or promotes the
ultimate purpose. In this research the court is not confined to the literal meaning of the words used in the notification
but it has to adopt a rational attitude by attempting to align its vision to that of the draftsman while drafting the
notification in question.82 However in the absence of express power conferred by law, there is no inherent power of
review of a statutory order by successor-in-office.83 Whether government has power to grant by a notification,
exemption from the provisions of an Act with retrospective effect should be seen from the provisions of the Act, and
not of the notification.84 Mere mistake in the opening part of notification in reciting the wrong source of power does
not affect the validity of the amendments thereby.85 The expressions or words used in a notification must be read
as such and not in any other manner, unless the context requires that the latter course should be followed.86
Baij Nath v State87 dealt with the scope of notifications and their relation qua the parent Section. Section 19 of the
Uttar Pradesh Opium Smoking Act, 1934 bestowed the power on the State Government to authorise the Collector
or any officer of the Excise Department or a police officer not below the rank of an officer to conduct a search if
there were reasonable grounds for suspicion, which ought to be recorded. The State Government issued
notifications that empowered all police officers, irrespective of their ranks, with the power to conduct searches under
Section 19.
The Court, observing that the words of a notification should be construed strictly and not liberally, held that a police
officer below the rank prescribed by Section 19 would be conducting a search in the capacity of an excise officer
and not a police officer. Hence, the officer would source his power from Section 10 (2)(e) of the Act, which
empowered the state government to bestow powers on any officer who was not an excise officer. While the
judgment appears suspect in its correctness, it exhibits a strong disposition towards executive notifications and
shows the reluctance of the judiciary in striking them down.
81 . Union of India v Arun Kumar Roy AIR 1986 SC 737 [LNIND 1986 SC 18], 1986 Lab IC 686 [LNIND 1986 SC 18],
(1986) 1 Cur LR 141 [LNIND 1986 SC 18], 1986 SCC 199 (Lab) (1986) 1 SCC 675 [LNIND 1986 SC 18], (1986) 1 SCJ
246 [LNIND 1986 SC 18], (1986) 1 Ser LR 474.
82 . Hari Chand v Batala Engineering Co AIR 1966 Punj 141, 147.
83 . Income-tax Commr Ltd v Union of India AIR 1989 Cal 294 [LNIND 1987 CAL 318], (1988) 1 Cal LJ 109, (1988) 25
Reports 179, (1988) 34 ELT 473 [LNIND 1987 CAL 318], (1988) 17 ECR 148, (1988) 92 CWN 1035.
84 . Sengalaneer Pillaiyar Temple v Manickam Chettiar 90 LW 162.
85 . Hukumchand Mills Ltd v State of Madhya Pradesh AIR 1964 SC 1329 [LNIND 1964 SC 46]; Gwalior Rayon Silk Mfg
(Weaving) Co Ltd v State of Madhya Pradesh AIR 1988 MP 129; Ahmedabad Khangi Prath Nilkshala Sanchalak Sang
v State of Gujarat AIR 1989 Guj 225, (1988) 2 Guj LJ 314, (1989) 30 Guj LR 1, (1989) 1 Cur LR 507.
86 . Hari Chand Agarwal v Batala Engineering Co Ltd AIR 1969 SC 483 [LNIND 1968 SC 288].
Page 2 of 2
Notifications
87 . AIR 1956 All 234 [LNIND 1955 ALL 230].
End of Document
Bye-laws
NS Bindra
Bye-laws
Difference between statutory rules and bye-laws
Statutory rules and bye-laws differ in this respect. Bye-laws are framed by corporation for carrying out their
purposes and courts have retained a certain amount of control over the bye-laws considering their reasonableness.
Statutory rules stand on a different footing. Parliament or legislature instead of incorporating them into the statute
itself ordinarily authorises government to carry out the details of the policy laid down by the legislature by framing
rules under the statute and once the rules are framed, they are incorporated in the statute itself, and become part of
the statute and the rules must be governed by the same rules as the statute itself. Hence, a statutory rule cannot be
challenged as unreasonable.88
The law has moved from the position outlined in Mulchand v Mukund89 as is evident from the exposition of the
Supreme Court in Maharashtra State Board of Secondary and Higher Secondary Education and Anr.vParitosh
Bhupeshkumar Sheth and others.90 The Maharashtra Secondary and Higher Secondary Education Boards
Regulations 1977, which were framed by the State Board under the powers granted by Section 36 of the
Maharashtra Secondary and Higher Secondary Boards Act, 1965, were at issue. The regulations received the State
Governments sanction under Section 36 (3) of the Act and subsequently came into force. The regulations governed
the Secondary and Higher Secondary Board Exams. Regulation 104 referred to verification of marks obtained by a
candidate in a subject. Clause (1) restricted verification to checking whether all the answers have been examined
and that there has been no mistake in the totalling of marks for each question in that subject and transferring marks
correctly on the first cover page of the answer book and whether the supplements attached to the answer book
mentioned by the candidate are intact. Clause (1) also speaks of revaluation and prohibits revaluation of the answer
books or supplements. Clause (3) mandated that no candidate shall claim, or be entitled to revaluation of his
answer or disclosure or inspection of the answer books or other documents as these are treated by the Divisional
Board as most confidential.
The petitioners argued that the regulations were in the nature of bye-laws and could, therefore, be struck down on
grounds of unreasonableness. The court did not buy this argument, as the Act had a separate section giving the
power to create bye-laws, indicating that these were statutory rules, and not bye-laws. It did, however, tackle the
question of unreasonableness:
The legal position is now well-established that even a bye-law cannot be struck down by the Court on the ground of
unreasonableness merely because the Court thinks that it goes further than is necessary or that it does not incorporate
certain provisions which in the opinion of the court, would have been fair and whole-some. The Court cannot say that a bye
law is unreasonable merely because the judges do not approve of it. Unless it can be said that a bye law is manifestly
unjust, capricious, inequitable, or partial in its operation, it cannot be invalidated by the Court on the ground of
unreasonableness. The responsible representative body entrusted with the power to make by laws must ordinarily be
presumed to know what is necessary, reasonable, just and fair.
Discussing the fact that there are specific situations where answer scripts might be inaccurately corrected, causing
injustice to the particular examinee, the court, referring to Krishna Iyers opinion in R S Joshi v Ajit Mills, held that
the constitutionality of rules must be in the context of their general application, not the specific exceptions that are
possible.
Page 2 of 4
Bye-laws
It will be wholly wrong for the court to make a pedantic and purely idealistic approach to the problems of this nature,
isolated from the actual realities and grass root problems involved in the working of the system and unmindful of the
consequences which would emanate if a purely idealistic view as opposed to a pragmatic one were to be propounded. It is
equally important that the Court should also, as far as possible, avoid any decision or interpretation of a statutory provision,
rule or bye-law which would bring about the result of rendering the system unworkable in practice. The court, thus, held
Regulation 104 to be valid.
Construction of bye-laws
There is a presumption that the bye-laws in question had been duly made, published and sanctioned.91 It was,
however, decided in very early times that the approval of the bye-law by the authorities mentioned in the statute did
not give it validity if it was not otherwise legal. The validity of the bye-laws must be determined by the judges when
such an issue is properly brought before them.92 In the absence of clear and unmistakable language in the Act
empowering a committee to make a bye-law; the mere fact of the local government having signified its approval to
such bye-law would not render the bye-law valid,.93 A bye-law or regulation being in the nature of the subsidiary
legislation has statutory force, and the general principle covering the interpretation of statutes would, therefore,
apply in construing them.94 To the various expressions used in the rules the same meaning should be given as is
given to those expressions in the Act itself,95 and if the words are not defined, dictionary will have to be referred to
find out the general sense in which the words are understood in common parlance.96 In construing a bye-law
regard must be had to the nature of the evil intended to be dealt with.97
It is settled rule of construction that the courts will interpret local bye-laws benevolently, and it will be imprudent to
invalidate them on purely technical grounds.98 The two rules of constructionbenevolent and strictonly represent
different modes of approach, and their application depends on the nature of the rule or bye-law in question and the
nature of the attack made against it if the local body is acting within its jurisdiction in making the rule or bye-law and
the irregularity alleged is merely in respect of a matter which is not essential, it will not be held to be ultra vires on
the technical ground of such irregularity. Where the local body purports to levy tax, the construction must be strict,
especially where it is doubtful whether the taxing statute really touches the person or the subject taxed. If the
provisions of the Act emphasise the compliance with the preliminary procedure amounts to a condition precedent
before the levy of the tax, it would not be open to the local
authority, to contend that the tax levied by it or the rule framed by it in that behalf should be benevolently construed
and that its failure to comply with the preliminary procedure should be condoned.1
Lord Russell CJ, made the following pertinent observation on the subject in Kruse v Johnson:2
The great majority of the cases in which the question of bye-laws has been discussed, are not cases of bye-laws of bodies
of a public representative character entrusted by Parliament with delegated authority, but are for the most part cases of
railway companies, dock companies, or by other like companies which carry on their business for their own profit, although
incidentally for the advantage of the public. In this class of cases it is right that the court should jealously watch the exercise
of these powers and guard against their unnecessary or unreasonable exercise to the public disadvantage. But when the
court is called upon to consider the bye-laws of public representative bodies clothed with the ample authority which I have
described, and exercising that authority accompanied by the checks and safeguards which have been mentioned, I think
the consideration of such bye-laws ought to be approached from a different standpoint. They ought to be supported if
possible. They ought to be, as has been said, benevolently interpreted, and credit ought to be given to those who have to
administer them that they will be reasonably administered. This involves no new canon of construction. But further, looking
to the character of the body legislation, and to the nature and extent of the authority given to deal with matters which
concern them, and in the manner which to them shall seem meet, I think Courts of Justice ought to be slow to condemn as
invalid any bye-law, so made under such condition, on the ground of supposed unreasonableness.
On the validity and the invalidity of bye-laws and the power of the delegatee authority to make them, Griffith CJ.,
while delivering the judgment in Ferrier v Wilson, observed as follows:3
I quite agree that if the Legislature deals with a particular act, and prescribes the conditions under which it will be lawful and
Page 3 of 4
Bye-laws
those under which it will be unlawful, the subordinate authority cannot, under the pretence of making a bye-law, alter the
law as so declared by the Legislature. But when the Legislature does not do that, then so far as to matter is left untouched
by the express provisions of the Act, the powers of the delegated authority to deal with its bye-law are not affected.
Limitations imposed by bye-laws
The promulgation of a bye-law may, at times, have the effect of limiting the scope of the power of the local body or
company to exercise a right which otherwise be deemed to be vested in it. Lord Lindley observed in London
Association of Shipowners v London and India Docks:4
The legislature has expressly conferred on the company many powers which the company as owner of property could have
exercised without any express statutory authority. Whenever this is the case, the power expressly given must be treated
either as superfluous, or as purposely inserted in order to define, that is, to limit the right conferred and as implying a
prohibition against the exercise of the more extensive rights which the company might have by virtue of its ownership of
property. That the latter is the true mode of regarding statutory powers conferred on bodies created for public purposes and
authorised to acquire land for such purposes cannot, I think admit of any doubt.
It would otherwise be contravening the well-known rule that when there is a special affirmative power given which
would not be required because there is a general power, it is always read to import the negative and that nothing
else can be done.
Reasonableness of bye-laws
The jurisdiction of testing bye-laws by their reasonableness was originally applied to such cases as those of
manorial bodies, towns or corporations having inherent powers or general powers conferred by charter in making
such laws. As new corporations and administrative bodies had arisen, the same jurisdiction has been exercised
over them.5 Any bye-law purporting to regulate trade is calculated to some extent to hamper it, but if it does not
result in preventing or stifling it, the bye-laws cannot be denounced as unreasonable. The test of reasonableness is
to consider whether the restraint is such only as to afford a fair protection to the interest of the parties not so large
as to interfere with the interest of the public.6
In Jagmohan Singh v State of Uttar Pradesh,7 the Supreme Court indicated the following guidelines for testing the
reasonableness after observing that no abstract standard or general pattern of reasonableness can be laid down as
applicable to all cases:
The nature of the right alleged to have been infringed, the underlying purpose of the restrictions imposed, the extent and
urgency of the evil sought to be remedied thereby, disproportion of the imposition, the prevailing conditions at the time,
should all enter the judicial verdict. In evaluating facts and forming conception of what is reasonable, in all the
circumstances of a given case, it is inevitable that the social philosophy and the scale of values of the judges participating
in the decision should play an important part, and the limit to their interference with legislative judgment in such cases can
only be dictated by their sense of responsibility and self-restraint and the sobering reflection that the constitution is meant
not only for people of their way of thinking but for all, and that the majority of elected representatives of the people have, in
authorising the imposition of the restrictions considered them to be reasonable.
Bye-laws adding to the Law
In Widgee Shire Council v Bonney,8 Griffith CJ, said:
The suggestion that a bye-law may not add to the law is, of course, untenable, for that view the power to make bye-laws
would be absolutely nugatory. It cannot be disputed that under the power to regulate traffic the local authority would have
power by bye-law to prescribe that certain form of traffic, for instance, heavily loaded wagons or indeed any wheeled
vehicles, shall be confined to a prescribed portion of the width of a highway; otherwise the power to control highways and
make them safe and convenient for foot passengers would be futile. Nor can it be disputed that prima facie the width of the
carriageway is a matter for the local authority to determine. Again, it is clear that if they thought fit to allow wagons or other
wheeled vehicles to use the whole width of a highway; they might impose a condition that they should not injure the water-
Page 4 of 4
Bye-laws
tables or kerbs separating one part from another. It is equally plain that they might, under the power to make bye-laws to
prevent injury or obstruction to works, prohibit the passing of a heavy vehicle from the carriage way to another part of the
highway, if doing so, would be likely to injure the kerb or water-table.
It was further held that a bye-law can prohibit an act simpliciter and it would not be invalid simply because it
dispenses with the element of mens rea in an offence. In some statutes, power is given to frame rules and when so
framed they are made part of the statute. In such a case, it might be permissible to supplement the provisions of the
statute itself, with limits. But where rules are to be framed for carrying on the purposes of the Act, such rules cannot
travel beyond the four corners of the Act itself.
88 . Mulchand v Mukand (1952) 54 Bom LR 285 [LNIND 1951 BOM 175]; AIR 1952 Bom 296 [LNIND 1951 BOM 175].
89 . Ibid.
90 . (1984) 4 SCC 27 [LNIND 1984 SC 173].
91 . Queen-Empress v Ramchandar (1897) ILR 19 All 455, p 493.
92 . Kruse v Johnson [1898] 2 QB 91.
93 . Mahommad Sarwar v Amroati Municipality AIR 1919 Nag 111.
94 . Damodar Mahanty v Utkal University AIR 1955 Ori 151 [LNIND 1954 ORI 38]: regulation of the Academic Council of
the University; see but PA George v Tatapuram Co-op Society Ltd (1975) Ker LT 367: which held that the bye-laws of
the co-operative society are not statutory in nature.
95 . Bhagwati Prasad v Uttar Pradesh Government AIR 1959 All 589 [LNIND 1958 ALL 197], p 594.
96 . Nagar Palika Parishad, Sabalgarh v Damodardayal 1977 Jab LJ 724.
97 . Beetham v Tremesne 2 CLR 582, pp 856, 857; Bundelkhand Motor Transport Co v State Transport Appellate
Authority AIR 1968 MP 215 : where there is no inconsistency between rule and provisions of statute, it is not
reasonable to construe the rule upon a priori notions.
98 . Alley, Law in the Making, fourth edn, p 463; Salem Fairlands Co-op House Building Society Ltd v Sugunaleelavathi
Ammal(1968) 1 Mad LJ 300.
1 . Borough Municipality of Amalner v Pratap Spg, Wvg and Mfg Co Ltd (1952) ILR Bom 918, AIR 1952 Bom 401 [LNIND
1951 BOM 178].
2 . [1898] 3 QB 91 , pp 99-103; White v Morley [1899] 2 QB 34, pp 37, 39; Mewa Ram v MM Board (1939) ILR All 770,
AIR 1939 All 466, p 480; Pillay v Moulmein Municipal Committee (1921) 22 Cr LJ 133, (1921) 59 IC 545.
3 . 4 CLR 785, p 791: the bye-law of a statutory corporation cannot travel beyond the powers vested in it by the Act;
Narayan Sakharam v Co-op Central Bank AIR 1938 Nag 434, p 437.
4 . [1892] 3 Ch 242-51.
5 . Slattery v Naylor [1888] 12 AC 446, p 452, per Lord Hobhouse.
6 . Khurai Municipality v Kaluram Hiralal AIR 1944 Nag 73, p 77, (1943) ILR Nag 740.
7 . (1973) 1 SCWR 20 [LNIND 1972 SC 477].
8 . 4 CLR 977, p 981.
End of Document
Repugnancy between the Parent and Delegated Legislation
NS Bindra
A rule of regulation must not be inconsistent with the Act and a bye-law should not be repugnant to the law or the
rule.9 If it can stand with the Act a regulation may prescribe not only anything the Act requires or permits to be
prescribed (the word permitted meaning, expressly or impliedly allowed), but also anything, necessary or
convenient to be prescribed for giving effect to the Act.10 Where the words of an enactment are clear, the rules
made thereunder must, if possible, be reconciled with it, and where that cannot be done, must give way to the
enactment.11 A bye-law is not repugnant to the general law merely because it creates a new offence, and says that
something shall be unlawful that which the general law says is lawful; if it expressly or by necessary implication
professes to alter the general law of the land; if it adds something inconsistent with the provisions of a statute
creating the same offence, but if it adds something not inconsistent, that is not sufficient to make the bye-law bad as
repugnant.12 A bye-law cannot be denounced as being repugnant to general law simply because of two lawful
courses, it adopts one and rejects the other, and on that which it adopts it imposes special conditions or limitations
or even penalties. Repugnancy implies a conflict between two provisions either of which can be given effect to
without infringing the other. There can be no such conflict between a bye-law and the general law if the bye-law
operates in a particular sphere selected by it even though to the exclusion of another, so long as it confines itself
within the broader limits of the general law and does not involve any violation of its fundamental principles or policy
and is capable of being construed as supplementing the general law.
When the purpose of power includes both prohibiting and regulating, it authorises a bye-law which prohibits
conditionally, although the conditions may properly be described as regulatory.13 The court is not concerned with
the wisdom or otherwise of any regulation: that is a matter for the legislature. It is concerned only with the question
of legality.14 If the legislature in its wisdom grants a concession and by creating concession a reciprocal right or
privilege is vested in an assessee, such a reciprocal right cannot be wildly dealt with so as to negate its usefulness
by making a rule which cannot be reconciled with the main statutory provision, if the rule or the form prescribed
therein, which no doubt gets itself built into the structure of the Act, is to create a situation and which, if accepted,
would divest a vested right in an assessee to obtain a statutory privilege, then such a form which is prescribed in
accordance with the mandate of the main provisions should be held to be ultra vires and not enforceable.15 If a
new rule is held ultra vires, the old rule does not get revived.16
In Bangalore Municipality v N. Sirur,17 There was a discrepancy between a rule and the accompanying bye-law,
where the rule read as no person shall use any place not belonging to the Municipal Council, as a place for gold
and silver boiling or for installation of power driven machinery and the bye-law read as no person shall use any
place, for boiling gold or silver or for installation of machinery driven by power or otherwise for any purpose (.
Therefore, the ambit of the bye-law was much wider than the rule due to the use of the words for any purpose.
This distinction between the rule and the bye-law courted controversy because three mills had installed power
machinery prior to the enactment of the bye-law. The municipality contended that the mills were bound to obtain
licenses and pay fees under the bye-law, while the mills contended that the bye-law was invalid and caused an
imposition greater than the rule. The Court agreed with the mills, and held that the bye-law was invalid because it
exceeded the scope of the rule. The Court held:
The settled rule of construction is that the rule should not be repugnant to the law and the bye-law should not be repugnant
to the rule or the law. The rule cannot be attacked as being repugnant to the Act or as being in excess of the power of the
Page 2 of 3
Government to make it but the bye-law provides for what is beyond the limits laid down by the rule by requiring persons
other than those mentioned in the rule to obtain the license. This, in my opinion, is not legally permissible and to that extent
the bye-law is invalid.
In Abdul Gani v Settlement Officer,18 the controversy was whether Rule 2 of the Assam Settlement Rules could be
pressed to cancel a partial allotment of land. Rule 2 read as follows:
The disposal of waste land required for ordinary or special cultivation or for building purposes will, subject to the general or
special orders of the Provincial Government, vest in the Deputy Commissioner, who will dispose of such land by grant,
lease or otherwise in the manner and subject to the conditions set forth in the rules following provided that the Deputy
Commissioner may expressly reserve any such land from settlement. Hence, the lands were vested in the Deputy
Commissioner, who was awarded the competence under Rule 2 to dispose of them by lease etc. in accordance with Rule
2. The controversy arose due to a subsequent notification that provided that an allottee or an annual settlement-holder shall
have no transferable right or interest, in the land covered by his allotment or annual patta.
The State contended that the words general or special orders of the Provincial Government in Rule 2 empowered
the Provincial Government to pass special orders regulating the settlements or nullifying the same, at any stage in
time. The petitioners contended that Rule 2 did not accommodate any reevaluation of the settlement arrived at by
the Deputy Commissioner, and hence, the notification was repugnant to Rule 2 due to its broad ambit. The Court
held as follows:
It is fundamental that a rule making body cannot frame rules in conflict with or derogating from the substantive provisions of
the law or statute under which the rules are, framed. Rule 2, therefore, has got to be interpreted in such a way as to be
consistent with the provisions of the Regulation itself. In my opinion, the words general or special orders though somewhat
broad in their import, cannot mean that at any stage, the Government can interfere with the settlements effected by the
Deputy _ Commissioner. These general or special orders would relate to a stage when the Deputy Commissioner has not
already created rights in favour of third parties. The order of the Provincial Government directing reduction of the area
already settled with the petitioners is, therefore, without any warrant in law.
In Radha KrishnavCompensation Officer,19 the controversy related to the acquisition of land by the Government
under the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1951. The Act provided for payment of
compensation to the owners of the land. In this case, the payment of compensation to legal heirs of a deceased
landowner was challenged by a person claiming to be the son of the deceased.
Under Section 69 of the Act, the Compensation Officer could deposit compensation payable to a limited owner with
an authority or bank prescribed by the State Government, or could pay the compensation directly. The State
Government enacted the Uttar Pradesh Zamindari Abolition and Land Reforms Rules, 1952, which in Rule 84
prescribed that that the compensation due to a limited owner ought to be deposited with the Imperial Bank of India.
For districts that did not have a branch of the aforementioned bank, any scheduled bank may be chosen by the
Compensation Commissioner.
The petitioner argued that the effect of Rule 84 was to restrict the discretion awarded to the compensation
commissioner by Section 69, and that compensation had to be deposited mandatorily. Essentially, the argument
was that the rule effectively rid the provision of the discretion it awarded.
The Court did not find favour with the petitioner, and held that the concerned Rule could not have overriden the
discretion awarded by Section 69 . In arriving at this decision, the Court observed:
Rules made under the rule-making provisions of an Act cannot take away what is given by the Act. Rules are meant only for
the purpose of carrying out the provisions of the Act. Hence, Rule 84 under the Uttar Pradesh Zamindari Abolition and Land
Reforms Rules, 1952, taking away the discretion of the compensation officer under Section 69 to deposit or not to deposit
the amount of compensation payable to a limited owner cannot be accepted.
Page 3 of 3
9 . Bangalore Municipality v N Sirur & Co AIR 1955 Mys 147, (1966) ILR 45 Pat 108: a circular issued by an officer of
government cannot be construed in such a way as to circumvent or make nugatory the statutory provision; Muddi
Narayanan v Subbaraju AIR 1957 AP 837 [LNIND 1956 AP 60], p 841, per Subba Rao CJ; Loitongham C Singh v
Chief Commr AIR 1958 Mani, 1, p 3, per Datta CJ.
10 . R v Industrial Restrar 25 CLR 9, p 20, Anant Sadashiv Pandit v Ratnagiri Jilha (Dist) Local Board (1952) 54 Bom LR
841 [LNIND 1952 BOM 42], AIR 1953 Bom 71 [LNIND 1952 BOM 42]: rules framed by District Board not to be
inconsistent with the Act; Ganpat Shantaram More v Lingappa Balappa Gowda AIR 1962 Bom 104 [LNIND 1961 BOM
28], (1961) 63 Bom LR 832; Firm Al Corpn v Marker Committee AIR 1962 Punj 426.
11 . Somdutta Chaubey v Janapada Sabha 1962 Jab LJ 181; Chandrakant v State of Rajasthan (1963) ILR 73 Raj 1.
12 . Gentel v Rapps [1902] 1 KB 106 , p 166; quoted in Khurai Municipality v Kaluram Hiralal(1943) ILR Nag 740, AIR
1944 Nag 73, p 75.
13 . County Roads Board v Neale Ads Propriety Ltd 43 CLR 127; AK Gopalan v State of Madras AIR 1950 SC 27 [LNIND
1950 SC 22]; Balkrishna v State of Madras AIR 1952 Mad 565 [LNIND 1951 MAD 207]; Loknath v State of Orissa AIR
1952 Ori 42; WBSK Co-op Society v Bella Banerjee AIR 1951 Cal 111 [LNIND 1951 CAL 80]; State of West Bengal v
Subodh Gopal AIR 1954 SC 92 [LNIND 1953 SC 118]; Dwarka Das v Sholapur Spg and Wvg Co 1954 SC 119:
whether imposing of restrictions authorises total prohibition.
14 . Sickerdick v Ashton 25 CLR 506, pp 512-13.
15 . Muthiah Chettier Family Trust v Fourth ITO, Madras 86 ITR 282 (Mad), per Ramprasada Rao J.
16 . ATP Mehtab Majid & Co v State of Madras AIR 1963 SC 928 [LNIND 1962 SC 162].
17 . Bangalore Municipality v N Sirur & Co AIR 1955 Mys 147.
18 . AIR 1955 Assam 45, p 48.
19 . Radha Krishna v Compensation Officer, Meja AIR 1954 All 202 [LNIND 1953 ALL 255].
End of Document
Severability in Delegated Legislation
NS Bindra
Severability in Delegated Legislation
Where a bad portion of an enactment can be separated from the good portion, the good portion can still be
enforced. But where the bad portion cannot be so separated and it is inextricably mixed up, then the whole
enactment becomes bad. Where a statute is in part void, it would be enforced as regards the rest, if this is
severable from what is invalid.20 It is immaterial for the purposes of this rule whether the invalidity of the statute
arises by reason of its subject matter being outside the competence of the legislature or by reason of its provisions
contravening constitutional prohibitions. The test to find out whether the portion which is bad can be separated from
the rest or not is to see, if after omitting the bad portion, the rest of the enactment is workable, and does not
frustrate the intention of the rule-making body, and is quite independent of the bad portions.21
Municipal Board, Banaras v Samiullah22 represents an application of the aforementioned principles. A bye-law
framed under Section 299 (1) of the Uttar Pradesh Municipalities Act 1916, which prescribed the maximum fine for
a breach of a bye-law at Rs 500 by the Municipal Board of Banaras, provided:
In exercise of the powers conferred by section 299 (1) of the Act, the Board hereby directs that any breach of the above
bye-laws shall be punishable with find which may extend to Rs 1,000 and shall in no case be less than Rs 100.
Samiullah was convicted for such a breach and was fined Rs 15. It was contended before the High Court, in a
revision filed by the municipal board (before the district magistrate who referred the case to the High Court) on
behalf of Samiullah that there was no power in the municipal board to fix the maximum limit at Rs 1,000 when
Section 299 (1) of the Act laid down the maximum limit at Rs 500 only, and since the Board had attempted to do
what it could not do, the bye-law as a whole, was invalid and could not be enforced. The Court did not agree with
this contention. It held as follows:
In this case, we find that if we exclude from consideration the clause in the bye-law which fixes the maximum limit of fine at
Rs 1,000, the rest of the bye-law is workable and is in harmony with the intention of the Board, and is not dependent on the
clause which is bad. Under these circumstances, we think that the minimum penalty that should have been imposed by the
Bench Magistrate, II Grade, who tried the case was Rs 100.
20 . Ex p Stephens [1876] 3 Ch D 659, p 660.
21 . RMD v Union of India AIR 1957 SC 628 [LNIND 1957 SC 37]; Nand Ram v Kishori Ram Singh AIR 1962 All 521
[LNIND 1961 ALL 224].
22 . AIR 1949 All 220 [LNIND 1948 ALL 38].
End of Document
Doctrine of Implied Powers
NS Bindra
The doctrine of implied powers is embodied in the maxim Quando lex aliquid alicue concedit concediture et id sine
quo res ipsa esse non potest. The doctrine was elaborately explained in Fenton v Hampton.23 The Court observed
as follows:
Whenever anything is authorised and especially if, as matter of duty, required to be done by law, and it is found impossible
to do that thing unless something else not authorised in express terms be also done, then that something else will be
supplied by necessary intendment. But, if, when the maxim comes to be applied adversely to the liberties or interests or
interests of others, it be found that no such impossibility exists, that the power may be legally exercised without the doing
that something else, or even going a step further, that it is only in some particular instances, as opposed to its general
operation, that the law fails in its intention unless the enforcing power be supplied, then, in any such case, the soundest
rules of construction point to the exclusion of the maxim, and regard the absence of the power which it would supply by
implication as a cassus omissus.
In DEmdenvPedder,24 the Court held:
This is, in truth, not a doctrine of any special system of law, but a statement of a necessary rule of construction of all grants
of power, whether by unwritten Constitution, formal written instrument, or other delegation of authority, and applies from the
necessity of the case, to all to whom is committed the exercise of powers of government.
In Government of Maharashtra v Deokars Distillery,25 the issue was whether the state was empowered to charge
the cost of supervision from liquor licencees, for government staff posted on their premises under Section 58A of
the Bombay Prohibition Act, 1949.26 The State Government was empowered under Section 58A of the Prohibition
Act, to permit the manufacture etc. of any intoxicant under the supervision of excise staff and the cost of such staff
is to be paid to the State Government by the manufacturer. The commissioner was empowered by the State
Government, to issue circulars for levy and recovery of supervision charges based on the pay scales and other
allowances of the government employees fixed by the State Government. The licensees gave an undertaking at the
time of obtaining the license that they would abide by all orders made under the Prohibition Act and the Rules.
Some of the rules incorporated residuary powers of making a demand in special circumstances. The cumulative
effect of the undertaking and the residuary provisions was read to mean that the government could recover from the
licencees all those supervisory expenses it had in fact incurred.The Commissioner issued demand notices to the
respondents to pay the cost of supervision which accrued on account of revision of pay-scales with retrospective
effect. The question was whether the Commissioner was empowered to retrospectively recover arrears of the
supervision charges. The Court held as follows:
In our view, there exists full power unless Section 58A of the Prohibition Act itself to levy and recover all costs of
supervision and, therefore, no limitation can be read into the power to recover all costs present, future and past which
are/or were actually incurred by the State Government in view of payments made/to be made to its employees posted for
excise supervisionit is a well established rule of construction that a power to do something essential for the proper and
effectual performance of the work which the statute has in contemplation may be implied
The reason for the rule is quite apparent. Many matters of minor detail are often omitted from legislation. As
Crawford observes,
Page 2 of 4
It these details could not be inserted by implication, the drafting of legislation would be an indeterminable process and the
legislative intent would likely be defeated by a most significant omission.27
The implication and intendments arising from the language of an Act are as much a part of it as if they had been
expressed. What is necessarily implied is just as much a part of the statute as if it were especially written therein.28
It is only necessary implications which may thus be read into the statute. An implication is necessary in the sense
that it should be read into an express grant of statutory power which may be ascertained by examining the
inconvenience, inconsistencies and absurdities in the contrary consideration. Necessity represents so strong a
probability of an intention that a contrary intention cannot be reasonably supposed. Whether a provision can be
read into an enactment is ultimately a question of the intention of the legislature and hence the usual means of
determining such intention may be employed. A necessary implication does not mean to shut out every other
possible or imaginary conclusion, from which there is no possible escape but one leading to such a conclusion as
under the circumstances, a reasonable view impels to take, the contrary of which would be improbable or absurd.
In his Construction and Interpretation of the Laws,29 Black states the rule in these words:
And as a statute must always be construed with reference to the pre-existing law, it will often happen that many details are
to be inferred from the general language of the Act, which are understood as necessarily involved in it though not
enumerated.
While there are many situations where there is warrant for extending statutes by implication to cases not expressly
included by their language, the evolution or extension of a statute by implication should be limited to its strictly
necessary incidents or logical consequences. An implication will be rejected in the face of persuasive evidence that
it was not intended to be a part of the enactment being considered. Maxwell observed:
But when an Act confers such powers, it also impliedly requires that they shall be exercised only for the purposes for which
they were given and subject to the conditions which it prescribed, and also with due skill and diligence and in a way to
prevent a needless mischief or injury.30
In Wigram v Fryer,31 North J, held that notwithstanding the repeal of a section in a principal Act by an amending
Act, certain powers expressly conferred by the repealed section must be implied from the amending Act because of
the necessity of those powers to the effective performance of the duties cast upon the Metropolitan Board of Works
by the two Acts there in question. The very Act which repealed the section in the principal Act was held,
notwithstanding the repeal, to impliedly embody in itself the powers that had been expressed only in that repealed
section.
The case of MotilalvState of Uttar Pradesh32 elaborately examined the scope and effect of the doctrine of implied
powers. The question before the Court was whether the State of Uttar Pradesh had the power to conduct trade and
business in the plying of buses without legislative sanction.
Malik CJ. and Sapru J. held that such a power was implied in the executive powers of the State. Sapru J. held as
follows:
By holding that the State has a right to utilize its property we are not enlarging the scope of the executive power as
gathered from the written text of the Constitution. We are merely inferring from the existence of the fact that it holds
property a power of utilization, management and administration, and this is inherent in the very ownership of property. That
State trading was within the contemplation of the Constitution would appear from a perusal of Article 289 which does not
exempt a trade or business, not declared by law to be incidental to the ordinary functions of Government, from Union
taxation, unless Parliament otherwise declares. It may be further pointed out that the Motor Vehicles Act also did visualize
the ownership by State of some buses and the possibility of their running on routeson the same principle a corporation in
addition to the powers specifically granted to it, possesses all such powers as are necessarily incidental to those specified
or essential to the purposes and objects of its corporate existence.
Page 3 of 4
Agarwala J. dissented and held that the doctrine of implied powers did not empower the State to carry on the trade
and business of plying buses without legislative sanction, unless such a business was carried on when the nation
was in a state of war. He held as follows:
Implied powers are also of two kinds. (i) Those which vest in the Government by virtue of what is called its primary and
inalienable functions or sovereign power i. e, defending the State against external and internal enemies and maintaining
law and order, and (it) those which are necessary for the exercise or performance of a general power conferred or duty
enjoined by the Constitution or statutory enactments
if trade or business is incidental to the performance of its governmental functions authorised by the legislature, it will have
the power to carry on such trade or business. But the Constitution clearly makes a distinction between trade or business,
which is incidental to the performance of governmental functions and other trade or business activity vide Article 289 I am
afraid the power to carry on a trade or business, not being one which is merely incidental to the ownership of property, or to
the performance of a governmental function, cannot be held to be covered by the doctrine of implied powers except
perhaps in times of war.
In Sakiri Vasu vState of U.P. and others33 the investigation of the alleged murder of Major S Ravishankar was at
issue. The major was found dead on a railway track, and investigations repeatedly concluded that it was suicide,
much to his fathers, the petitioner, chagrin. The Major supposedly revealed certain corrupt activities in the Army to
his father, and reported it to his seniors, and his father asserted that he was murdered on account of these
revelations. The petitioner, approached the High Court seeking that the CBI be asked to investigate his sons death,
and the High Court rejected his petition. He approached the Supreme Court on appeal. Katju J. dismissed the
appeal, yet outlined the option available to those who were dissatisfied with investigation done, in terms of the
powers of the Magistrate under Section 156 (3) of the Crpc.34
It is well-settled that when a power is given to an authority to do something it includes such incidental or implied powers
which would ensure the proper doing of that thing. In other words, when any power is expressly granted by the statute,
there is impliedly included in the grant, even without special mention, every power and every control the denial of which
would render the grant itself ineffective. Thus where an Act confers jurisdiction it impliedly also grants the power of doing all
such acts or employ such means as are essentially necessary to its execution.
In view of the abovementioned legal position, we are of the view that although Section 156 (3) is very briefly worded, there
is an implied power in the Magistrate under Section 156 (3)Cr.P.C. to order registration of a criminal offence and /or to
direct the officer in charge of the concerned police station to hold a proper investigation and take all such necessary steps
that may be necessary for ensuring a proper investigation including monitoring the same. Even though these powers have
not been expressly mentioned in Section 156 (3)Cr.P.C., we are of the opinion that they are implied in the above provision.
23 . (1858) 11 Moo PCC 374M 360; Trolly Draymen & Carters Union of Sydney & Suburbs v Master Carriers Assn of NSW
(1905) 2 CLR 509, p 524.
24 . D Emden v Pedder 1 CLR 91, pp 109-10.
25 . (2003) 5 SCC 669 [LNIND 2003 SC 309].
26 . Enacted by the State Government under the power vested in it by the proviso to Article 309 of the Constitution to fix
the pay and other allowances of its employees.
27 . H Crawford, Statutory Construction, Third edn, p 267.
28 . People v Meakin 133 NY 214.
29 . H C Black, Construction and Interpretation of the Laws, second edn, pp 88-85.
30 . Maxwell, Interpretation of Statutes, Eleventh edn, p 353.
31 . 23 Ch D 87.
Page 4 of 4
32 . AIR 1951 All 257 [LNIND 1950 ALL 154]: the question whether a statutory power has to be exercised purely on the
subjective satisfaction of the authorities on which the power was conferred or has to be exercised subject to some
objective test, depends upon a variety of factors, such as the language of the provisions, the nature of the power, the
manner of its exercise, the things affected by its exercise etc. The intention of the legislature in granting the power has
to be gathered as usual from the language of the employer and where the language is no clear, all the various relevant
factors have to be taken into consideration; Hari Singh (Dr) v EF Deboo AIR 1969 Guj 349 [LNIND 1969 GUJ 68].
33 . (2008) 2 SCC 409 [LNIND 2007 SC 1433].
34 .156. Police officers power to investigate cognizable cases.

(1) Any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a
court having jurisdiction over the local area within the limits of such station would have power to inquire into or try under
the provisions of Chapter XIII.
(2) No proceeding of a police officer in any such case shall at any stage be called in question on the ground that the case
was one, which such officer was not empowered under this section to investigate.
(3) Any Magistrate empowered under section 190 may order such an investigation as above mentioned.
End of Document
Implied Obligations
NS Bindra
Implied Obligations
The grant of powers and privileges often carries with it implied obligations.35 Sometimes the express imposition of
one duty impliedly imposes another. Thus where no licence for the sale by retail of beer, cider or wine, not to be
consumed on the premises, should be refused except on one or more of four specified grounds, the justices were
under an implied obligation to state on which of the specified grounds they based their refusal.36 A duty or right
imposed or given to one may also cast by implication a corresponding burden on another,37 and the grant of a
privilege or of property to one person, may sometimes impliedly give right to another person.38
Implied Obligation Arising out of Judicial Power
In treating of statutory implications as relating to jurisdiction, it is of value to consider the following observation by
Maxwell:
In giving judicial powers to affect prejudicially the rights of person or property, a statute is understood as silently implying,
when it does not expressly provide, the condition or qualification that the power is to be exercised in accordance with the
fundamental rules of judicial procedure, such, for instance, as that which requires that, before its exercise, the person
sought to be prejudicially affected shall have an opportunity of defending himself.39
Hence, where a power is conferred to do some act of a judicial nature, or of public concern and interest, there is an
implied obligation to exercise it when the occasion for it arises. This implied obligation converts a permissive power
into an imperative one.
35 . Gray v Pullen(1864) 34 LJ QB 265; Bawer v Peate(1876) 45 LJ QB 446; Grovers v Wimborne [1898] 2 QB 402: an Act
which gives power to dig up soil on streets for making a drain etc impliedly casts on those thus empowered, the duty of
filling up the ground again and of restoring the street to its original condition; London & SW Rly v Flower (1875) 1 CPD
77: if Act imposed all liability on one person to keep in repair a work in the possession of another, it would be
understood as impliedly imposing on the latter the obligation of giving notice of the needed repair to the party liable;
Forbes v Lee Cons Board (1879) 4 Ex D 116: a public authority authorised to make a bridge and take tolls is impliedly
bound to keep it in proper repair.
36 . Ex p Smith (1878) 3 QBD 374.
37 . R v Chantrell 1875 LR 10 QB 587.
38 . Perring v Trail 1874 LR 18 Eq 88.
39 . Maxwell, Interpretation of Statutes, Eleventh edn, p 358.
End of Document
Conclusion
NS Bindra
Conclusion
It was pointed out in the introductory to the chapter that the inevitability of delegated legislation is accepted without
much demur in judicial decisions. In fact Courts are conscious of not setting such like unreasonable standards that
make the working of legislations difficult. Hence as in the previous years the conferral of delegated legislation
powers or even the absence of adequate guidance does not obtain much purchase from the Courts. Judicial
oversight is primarily concentrated on the details. If the legislation required the executive authority to exercise its
power in a particular way then for the power to have the authority of law it was necessary that it be so exercised.
Rulemaking with the authority of the legislature is accorded to greater legitimacy and validity than rules emerging
from pure executive power. Even so the demands of reasonableness have to be fulfilled by both rules and bye-
laws. In tracking the lawmaking relationship between the legislature and the executive, the courts seem to privilege
the role of the legislature normatively; however this principled preference only rarely results in executive law making
to be held bad. Thus the practical demands of modern day life seem to trump claims of legislative supremacy. It is
these practical requirements which tend to influence judicial evaluation and interpretation of executive lawmaking.
Table 1.2 Judicial Interpretation of Delegation of Legislative Powers
S. No Name and Context Power Delegated Courts Observations of

Citation of case or Restricted Consideration of the Court
the Power
Delegated
1. In Re Newly Indian Bar Advocates The Court held I am of opinion

Enrolled Councils Act, 1926 enrolled under the that the Act did not that where an Act
Advocates, Indian Bar restrict lawyers confers rights to a
AIR1928 Mad Councils Act, 1926 from practising in party in general
1182 were not permitted the Court, and the terms and entitles
to practice before rules framed by him to perform
Insolvency Courts the Court were more than one
under rules framed ultra vires the Act. function, the
by the Madras cutting down of
High Court. those rights by a
rule would make
that rule repugnant
to the provisions of
the Act.
2. Varma v Emperor Calcutta Municipal The Corporation of The license was Municipal powers
AIR 1933 Cal 243 Act - Section 391 Calcutta was refused on of regulation or of
empowered to suspicion of making bye-laws
refuse a license to gambling and for good
keep open a betting in the government
Carnival when it carnival. The Court without express
deemed fit in in held that the words of
public interest. refusal of a license prohibition does
was in the interest not authorise the
Page 2 of 11
Conclusion
of public order and making it unlawful

morality, and the to carry on a lawful
refusal did not trade in a lawful
infringe on the manner.
liberty of the
subject to carry on
lawful trade in a
lawful manner.
3. Barisal Co-op Section 22 of Co- Section 22 The Court held It is a well-

Central Bank v operative Societies provided for that the imposition recognised
Benoy Bhusan AIR Act,1912 transfer of shares of this excess principle of
1934 Cal 537 to the nominee or obligation by the interpretation of
legal bye-law was ultra statutes that if the
representative vires the statute, rule framed under
qualified to as the statute did the statutes or
become a not mandate that bye-laws framed
member. Rule 17 the transferee be under the rule, are
(b) of the Bye-laws elected as a in excess of the
of the bank member. provision of the
imposed a further statute or are in
obligation of being contravention of or
elected as a inconsistent with
member as well. such provisions
then these
provisions must be
regarded as ultra
vires of the statute
and cannot be
given effect to.
4. Rathnammal v Madras Irrigation Revenue Water was taken If the court finds
Secretary of State Cess Act, 1865 authorities were without permission that in the rules
AIR1939 Mad 963 empowered to during the second any particular
impose penalties crop season from construction has
under the Madras a source from been put on the
Irrigation Cess Act, which taking water Act, it is the duty of
1865, for the was authorised for the court to adopt
taking of water the irrigation of and follow that
without one crop. The construction.
authorization. Court held that
since the Act did
not allow
specifically for the
imposition of a
penalty for this
event, the
imposition of a
penalty by the
revenue
authorities was
ultra vires the Act.
5. Narasimha Raju v Government of Under Rule 2 The Court held If reconciliation

Brundavanasaha India (Constitution framed by the that the use of the were found to be
AIR1943 Mad 617 of Orissa) Order, Governor-General word disposal in impossible
1936 in Council, an the legislative between the
application for order had the section and the
revision in respect width to rules made
of any proceeding accommodate thereunder and the
pending on the 1st revision latter is found to
April, 1936 in the proceeedings and be in excess of the
Page 3 of 11
Conclusion
Court in hence, the statutory power

Berhampore would exercise of authorising them,
lie in the Court that discretion by the the subordinate
has revisional Governor-General provision, the rules
jurisdiction over in Council was so made, must
the Court which intra vires the give way and such
would have order. rules shall be held
jurisdiction to try to be ultra vires
revisional the rule-making
proceedings if they authority.
were instituted
after the 1st April,
1936.
6. Khurai Municipality - - - The limits of a

v Kaluram valid bye-law may
Hiralal(1943) ILR be stated in
Nag 73 negative terms as
follows:
(i) a bye-law must

not be in excess of
the statutory
power authorising
it;
(ii) it must not be

repugnant to the
statute or to the
general principle of
law; and
(iii) it should not be

unreasonable.
7. Ram Kishan v Uttar Pradesh Section 1 (4) of the The Court held The duration of a
State, AIR 1951 All Control of Supplies 1947 Act that the delegation statute is a matter
181 [LNIND 1950 (Temporary empowered the of the power to of determination
ALL 158] Powers) Act, 1947, State government extend the by the legislature
Uttar Pradesh to extend the life of application of the itself. It is of the
Control of Supplies the Act through a Act could not be nature of an
(Continuance of gazette delegated, and essential
Powers) notification. such delegation legislative act.
Ordinance, 1948, militated against Delegation of such
and Uttar Pradesh the separation of a power is not
Control of Supplies legislative and permitted by law.
(Continuance of executive
Powers) Act, 1948 functions.
8. Sadaria v Rajasthan Section 1 of the The Court held It may, however,

Rajasthan Board (Protection of Ordinance that Rajpramukh be pointed that if
of Revenue, AIR Tenants) empowered the was a legislative this were a case of
1954 Raj 224 Ordinance, 1949 Rajpramukh of authority in this extension of a law
[LNIND 1954 RAJ Rajasthan to case under the under a delegated
258] extend the provisions of the authority, it would
Ordinance through Ordinance which not be a valid
a gazette was signed under extension for it is
notification. his name, and now settled law
hence he had the that extension of a
power to extend certain law
the life of the Act. amounts to
Page 4 of 11
Conclusion
The Court enacting a law,

observed that the and if such
extension was not extension is done
an exercise of by an authority
delegation, but an who has itself no
exercise of power of
legislative legislation but only
authority. purports to act
under a delegated
authority, such
extension is not
valid.
9. Ram Saroop v Uttar Pradesh Through the rule- The Court held The power cannot
Board of Revenue, Zamindari making power that the Act had be challenged as
Uttar Pradesh AIR Abolition and Land under Section 6, allowed for the being an undue
1954 All 639 Reforms Act, 1950 the Board of enactment of delegation of
[LNIND 1954 ALL - Section 6. Revenue enacted rules, and the authority because
88] Rule 4 of the rules that were the whole of the
Rules the Board of enacted were Act has been
Revenue which within the ambit of declared to be
ordered the the power granted valid by the
hearing of the i.e. power to make Supreme Court of
appeals to be rules for the India. I must
stayed on the disposal of cases therefore take it
merits and fixed a relating to land that the power
date for hearing on reforms. conferred by the
whether the above two
appeal should be provisions on the
abated or not. State Government
to make the rules
is a valid power
and if the power
has been validly
conferred and the
State Government,
in the exercise of
the power so
conferred, has
made rules, it
cannot be said that
the rules are ultra
vires or beyond
the powers of the
State Government.
10. Ramamurthi & Co - - - When a bye-law is

v made under an
Seetharamayya(19 Act, the repeal of
57) 2 Andh WR the Act abrogates
503 the bye-law unless
the bye-law is
preserved by the
repealing Act. The
same principle
should apply to the
case at an order
made under an Act
which has lapsed
by efflux of time.
11. Brojendra Kumar v Central Excise The Excise The Court held In order to justify a
Page 5 of 11
Conclusion
Union of India AIR Rules, 1944 - Authorities were that the under rule, the rule itself
1961 Cal 217 Rules 8 empowered to Section 37 (1) of need not show on
[LNIND 1960 CAL refund duty in the Central Excise its face under what
58] respect of Act, the authorities particular section
exempted goods. were granted rule- of the Act it is
making power, and being made. So
under Section 37 long as the rule
(2) rules could be can be justified
made on the under the rule-
refund of duty. making power, the
Hence, even non-recital of the
though the fact that it has
notification did not been so made will
specify which not make the rule
provision it bad or invalid.
sourced the rule-
making power to,
the rules wereintra
vires the Act.
12. State of Uttar - - - Rules that are

Pradesh v Babu created for all
Ram Upadhyaya purposes of
1961 All LR 757 construction or
obligation are
exactly as if they
were in the Act to
be of the same
effect as if
contained in the
Act, and are to be
judicially noticed
for all construction
and obligation.
13. Battulal Makhanda - - - Rules made by a

Jain v Commr of subordinate
Sales-tax, Madhya authority cannot
Pradesh 1962 Jab control the
LJ 657 construction to be
placed on the
provisions of the
Act.
14. Orient Weaving Central Excise Under Rule 8, the The court held that The principle is
Mills Pvt Ltd v Rules, 1944 - Rule Ministry of Finance since the Central well-settled that
Union of India, AIR 8 was empowered to Excise Act had when two views of
1963 SC 98 exempt goods empowered the a notification are
[LNIND 1962 SC from leviable authorities to make possible, it should
93] excise duty. In this rules under be construed in
case, the Section 37 (1) in favour of the
Government respect of taxable subject, as
exempted cotton goods, the notification is a
fabrics produced impuged rule part of fiscal
by co-operative wasintra vires the enactment.
societies. Act.
15. Kashi Prasad Rule 13 (12) (b) of Rule 13 (12)(b) The Court held A rule cannot
Saksena v State of Rules framed empowered the that the Act had militate against the
Uttar Pradesh AIR under Section 15 State Government only allowed the provisions of an
1967 All 173 of Notaries Act, to cancel the government to Act under which it
[LNIND 1966 ALL 1952. license of a notary make rules to has been framed.
Page 6 of 11
Conclusion
93] on the basis of a remove the name

committee report. of notaries from
the Register of
notaries, and the
rules had provided
for a perpetual ban
on practise as a
notary. Hence, the
rule was ultra vires
the Act.
16. Munnalal v BS - - - The statutory rules

Basawan (1978) must be held to be
MP LJ 152 a part of the parent
Act and can do
anything if within
its scope. If power
is conferred to
make subordinate
legislation in
general terms, the
description of
topics is construed
as merely
illustrative and
does not limit the
scope of the
general power.
17. State of Tamil Tamil Nadu Minor Rule 8C The Court held Though ordinarily
Nadu v Hind Minerals empowered the that the rules framed by
Stone, (1981) 3 Concession Rules, government to government could the government
SCC 205 1959 - Rule 8C grant leases for not, through the will have
quarrying black concerned rule, prospective
granite on land grant licenses for operation, that
belonging to the quarrying on land they will apply to
government. that did not belong pending
to the government. proceedings.
The power granted
by the rules to to
grant licenses did
not mean the
power to grant
licenses for any
quarrying.
18. Synthetics Ltd, Central Excise Rule 9-A The Court held Although the rules
Ujjain v Union of Rules, 1944- Rule empowered the that since Rule 9-A made under the
India, 1982 Jab LJ 9-A levy and collection followed the Act cannot
279 of excise duty at established override the Act,
the time of practice of levying they may be used
removal of goods excise duty at the as contemporanea
from the factory. stage of removal, expositio of an
the rules were ambiguous
intra vires the provision in the Act
Central Excise Act. specially when
Further, the Court they are to have
held that the effect as if enacted
power to levy in the Act.
excise duty under
the Act could be
better interpreted
Page 7 of 11
Conclusion
by resort to rules
enacted by the
Central
Government.
19. Indian Express Customs Act, 1962 Section 25 of the The Court held A piece of
Newspaper - Section 15 and 1962 Act that the notification subordinate
(Bombay) Pvt Ltd the Customs Tariff empowered the was in violation of legislation does
v Union of India Act, 1975 government to Part III, and had not carry the same
AIR 1986 SC 515 impose import duty not taken relevant degree of
[LNIND 1984 SC on the import of considerations had immunity which is
337] newsprint through not been kept in enjoyed by a
a gazette mind during the statute passed by
notification. exercise. The a competent
government legislature.
attempted to argue Subordinate
that the Court legislation may be
could not examine questioned on any
the notification of the grounds on
using which plenary
administrative law legislation is
standards. This questioned. In
contention was addition it may
repelled by the also be questioned
Court, and the on the ground that
Court held that the it does not
notification was conform to the
amenable to statute under
judicial review. which it is made. It
may further be
questioned on the
ground that it is
contrary to some
other statute. That
is because
subordinate
legislation must
yield to plenary
legislation. It may
also be questioned
on the ground that
it is unreasonable,
unreasonable not
in the sense of not
being reasonable,
but in the sense
that it is manifestly
arbitrary.
20. Collector of Central Excises Rule 9 and Rule The Court held The expressions in
Central Excise v and salt Act, 1944 10 empowered the that an average the Schedule and
Parle Exports Pvt - Section 35L; government to Indian would not in the notification
Ltd, (1989) 1 SCC Central Excise exempt food treat non-alcoholic for exemption
345 [LNIND 1988 Rules, 1944 - Rule products and food beverages as food should be
SC 559] 9 and Rule 10 preparations from products or food understood by the
excise duty. In this preparations, and language
case, the Collector they were not employed therein
of Central Excise understood as bearing in mind
had held that this such in the context in
excludes non- commercial which the
alcoholic parlance as well. expressions occur.
beverages. Hence, the Court The words used in
Page 8 of 11
Conclusion
held that they were the provision,

not covered by the imposing taxes or
exemption granting
notification. exemption should
be understood in
the same way in
which these are
understood in
ordinary parlance
in the area in
which the law is in
force or by the
people who
ordinarily deal with
them.
21. Dilip Damodaran v Andhra Pradesh Rule 9 (4) of the The Court held The principle of
Secretary of Govt Professional rules empowered that Rule 9 (4) had special law and
Education Dept, Educational the government to the force of a general law could
Hyderabad Govt of Institutions make provisions statutory rule, and be made
Andhra Pradesh (Regulation of for the admission the rule prescribed applicable to two
AIR 1991 AP 194 Admission into students in in the prospectus different statutes
[LNIND 1990 AP under graduate Medical, of the University as such but if the
272] professional Engineering or ought to be rules are entirely
courses through Agricultural subverted to Rule of two different
Common Entrance Courses, under 9 (4). Hence, the counts one which
Test) Rules, 1989 the category of reservation in the has been issued
and Andhra Children of Ex- University for the as a rule of
Pradesh Service and concerned prospectus and
Educational Defence Pesonnel. category ought to the other rule
Institutions The government be escalated from which is a full
(Regulation of issued a 1% - 4%. pledged statutory
admission) Order, notification that rule, it is obvious
1974 prescribed 4% as that rule having
the quantum of the statutory force
reservation, will prevail over
whereas the the other.
prospectus of the
University
prescribed 1%.
22. National Insurance Motor Vehicles Rule 16 The Court held Rules validly
Co Ltd v Swaran Rules, 1939 - Rule empowered the that the insurer framed become
Singh, (2004) 3 16 government to could not disclaim part of the statute.
SCC 297 [LNIND issue learners liability to the third Such rules are
2004 SC 20] licenses prior to party by pleading therefore, required
the issue of driving that the driver was to be read as a
licenses. not licensed. The part of the main
driver was held to enactment. An
be licensed by attempt must be
virtue having a made to give effect
learners license to all the
issued by virtue of provisions under a
rules framed under rule for the
the Motor Vehicles interpretation of a
Act. statute. No
provision should
be considered as
surplusage.
23. Ramesh Mehta v Rajasthan The Rules The Court held A subordinate or
Sanwal Chand Municipalities empowered the that the rules could delegated
Page 9 of 11
Conclusion
Singhvi, (2004) 5 (Motion of No- Board of the not override the legislation must
SCC 409 [LNIND Confidence Muncipality to scope of the Act, also be read in a
2004 SC 529] against Chairman/ remove the and hence, the meaningful
Vice-Chairman) Chairman and prescription of the manner so as to
Rules, 1974 Vice-Chairman of rules that give effect to the
the board, and laid members may provisions of the
down the remove Board statute. In
procedure to do authorities by a selecting the true
so. vote could not meaning of a word
mean that all regard must be
members of the had to the
Board could vote. consequences
The rules could leading thereto. If
not have the effect two constructions
of conferring are possible to
voting power on adopt, a meaning
nominated which would make
members who the provision
ordinarily did not workable and
vote during Board inconsonance with
proceedings. the statutory
scheme should be
preferred.
24. Vasu Dev Singh v East Punjab Urban Power to exempt The Administrator Delegated
Union of India, Rent Restriction buildings from in exercise of his legislation,
(2006) 12 SCC Act, 1949 - Section payment of taxes power conferred however, involves
753 [LNIND 2006 3 on the basis of upon him under delegation of rule
SC 918] rent paid by them. Section 3 issued a making power of
notification which legislation and
made the authorises an
protective executive authority
provision to bring in force
inapplicable to such an area by
buildings whose reason thereof.
monthly rent The discretion
exceeded Rs. conferred on the
1,500. The executive by way
appellants argued of delegated
that the power legislation is much
under Section 3 wider. Such power
was an essential to make rules or
legislative function regulations,
which could not be however, must be
delegated. The exercised within
respondents the four corners of
argued that the the Act. Delegated
present case was legislation, thus, is
not one of a device which has
delegation but of been fashioned by
conditional the legislature to
legislation. The be exercised in the
court repelled the manner laid down
contention of the in the legislation
respondents and itself. By reason of
held that the Section 3 of the
present case was Act, Administrator,
one of delegation. however, has been
empowered to
issue a notification
whereby and
Page 10 of 11
Conclusion
whereunder, an
exemption is
granted for
application of the
Act itself.
25. Punjab National Punjab National The Regulations The Bank did not A statutory
Bank v Astamija Bank (Officers) empowered the allow a female Regulation, as is
Dash, (2008) 14 Service Bank to include employee to take a well known, is
SCC 370 [LNIND Regulations, 1979 conditions at the confirmation test subject to the
2008 SC 1020] time of after being unable provisions of a
employment in the to clear it the first Parliamentary Act.
letter of time due to Regulations
appointment. miscarriages. The framed by the
employee alleged Board of Directors
that other of the Bank fail to
employees had provide for grant of
been permitted to maternity leave
take this test after and other benefits
not clearing it the to which a woman
first time, and employee would
hence action taken be entitled to in
against her was terms of the
discriminatory. The Maternity Benefit
Court held the Act, 1961. A
order to be ultra subordinate
vires Article 14, legislation as is
and for the well known, must
purposes of be made in
argument, also conformity with the
invoked the Parliamentary Act.
Maternity Benefit
Act, 1961, to
further justify the
invalidity of the
Regulations and
the order.
26. Annamalai University Grants UGC had been The question was When the
University v Commission Act, granted the power whether provisions Regulations are
Secretary, 1956 - Section 26 to make of the IGNOU Act part of the statute,
Government of (1)(f) and The regulations for would be it is difficult to
India, (2009) 4 Indira Gandhi universities in subordinate to the comrehend as to
SCC 590 [LNIND National Open India. UGC Act. The how the same
2009 SC 451] University Act, Court did not which operate in a
1985 - Section 5 answer the different field
(2) question directly, would be ultra
but held that there vires the
was no conflict Parliamentary Act.
between the IGNOU has not
provisions, and made any
IGNOU was bound regulation; it has
by regulations not made any
framed under the ordinance. It is
UGC Act. guided by the
Regulations
framed by the
UGC...it is evident
that the appellant -
University has
violated the
mandatory
Page 11 of 11
Conclusion
provisions of the
Regulations.
27. Pratap Chand Advocates Act, State Bar Councils The question In other words, the
Mehta v State Bar 1961 - Section 15 were empowered before the Court interpretation
Council of Madhya and State Bar to remove their was whether the furthering the
Pradesh, (2011) 9 Council of Madhya office bearers delegation of object and
SCC 573 [LNIND Pradesh Rules, through any legislative power purposes of the
2011 SC 741] 1962 - Rule 122A procedure they under Section 15 Act has to be
chose to adopt. of the Advocates preferred in
The State Bar Act was excessive, comparison to an
Council adopted a inasmuch as it did interpretation
process of passing not provide any which would
a no-confidence guidelines for frustrate the same
motion. removal of office- and endanger the
bearers of the democratic
State Bar principles guiding
Councils. The the governance
Court held that the and conduct of the
impugned rules did State Bar
not suffer from Councils. The
excessive provisions of the
delegation. Advocates Act are
a source of power
for the State Bar
Council to frame
rules and it will not
be in consonance
with the principles
of law to give that
power a strict
interpretation,
unless restricted in
scope by specific
language.
28. Swami National Council Under Regulation It was argued that A delegate of the
Vivekanand for Teacher 8 (4), an institution the requirement legislature is
College of Education was required to be was accreditation conferred with the
Education v Union (Recognition Norm accredited with the was sub- power to make
of India, (2012) 1 and Procedure) NAAC with a delegation of rules and
SCC 642 [LNIND Regulations, 2007- Letter Grade B delegated power Regulations to
2011 SC 1129] Regulation 8 (4) prior to the i.e. the NCTE carry out the
and 8 (5) appointment of could not empower purposes of the
teachers. the NAAC with the legislation and
and National power to accredit such rules and
Council for institutions. The Regulations are
Teacher Education Court held that the called delegated
Act, 1993 - Section the NCTE had the legislation or
32 power to lay down subordinate
conditions for the legislation.
recruitment of
teachers, and the
requirement of
accreditation was
part of that power,
and not a case of
sub-delegation.
End of Document
NS Bindra
Edition > PART I THE INSTITUTIONAL REGIME OF INTERPRETATION > Chapter 3 The
Relationship Between the Judiciary and the Executive
Chapter 3 The Relationship Between the Judiciary and the Executive

Chapter 3 The Relationship Between the Judiciary and the Executive
End of Document
Introduction
NS Bindra
Introduction
Before elaborating on the relationship between the judiciary and the executive it would be useful to draw upon the
distinction that Aharon Barack makes between questions of meaning and questions of validity.1 The Constitution
has set out the parameters within which the legislature and the executive are required to exercise their powers. The
responsibility, of ensuring that such exercise happens in accordance with the selected parameters, resides with the
judiciary. In undertaking its job the judiciary is continually required to take decisions on questions of validity of
legislative and administrative action. In determining whether a particular action of the executive is valid or not the
judiciary is required to evaluate it on a specified set of parameters. Thus, for example if according to Article 124 the
President is required to appoint judges after consultation with the Chief Justice of India, then to determine the status
of an appointment which happens without consultation is a question of validity but what constitutes consultation is a
question of meaning. Similarly the executive undertakes several activities; it is not possible to judicially evaluate all
these activities. It is only when an action is considered justiciable that the judiciary comes in the picture. Once an
action is deemed justiciable then whether it has been undertaken in accordance with the norms derived from the
Constitution is a question of validity but whether the action itself is justiciable is a question of meaning. This chapter
and this book are primarily concerned with looking at how the Indian Courts have addressed the questions of
meaning. Questions of validity would be examined only to the extent that they are imbricated with questions of
meaning.
The aforesaid clarification has been provided in order to distinguish between the space occupied by administrative
law and statutory interpretation. Administrative law in India is primarily judge made law. The primary concern of
administrative law is to determine whether the powers conferred on various authorities have been exercised in
accordance with the standards evolved by the Courts. Once the space within and the norms by which an authority
has to operate has been determined, administrative law is primarily concerned with questions of validity.
Consequently those questions are not the concern of this book. The task of determining what is justiciable and
subject to judicial oversight is a question of meaning which requires interpretation. This chapter is concerned with
the manner in which courts in India have carved out the space for their own operation; which actions of the
executive have been subjected to judicial oversight; and which stand excluded.
1 . Aharon Barack, Purposive Interpretation in Law, Princeton University Press, 2005.
End of Document
Nature of Executive Power
NS Bindra
Nature of Executive Power
In Ram Jawaya KapurvState of Punjab,2 the court was required to pronounce upon the nature of executive power
and whether the executive power was restricted to the implementation of legislation. This question arose before the
court because the State Government had undertaken the publishing, printing and selling of school textbooks
exclusively in its own hands without having any statutory authority to do so. The petitioner was of the view that in
accordance with articles 73 and 162 of the Constitution, the executive can act only through legislation enacted by
the legislature. Thus, the executive government of a State was incompetent to engage in trade or business without
legislative sanction.
Dismissing the contention of the petitioner, the Supreme Court ruled that articles 73 and 162 do not contain any
definition as to what the executive function is and what activities would legitimately come within its scope. They are
concerned primarily with the distribution of the executive power between the Union on the one hand and the States
on the other. They do not meanthat it is only when the Parliament or the State legislature has legislated on certain
items appertaining to their respective lists that the Union or the State executive, as the case may be, can proceed to
function in respect of them. The court proceeded further to state that the executive government can never go
against the provisions of the Constitution or of any law. This is clear from the provisions of article 154 of the
Constitution but, it does not follow from this that in order to enable the executive to function there must be a law
already in existence and that the powers of the executive are limited merely to the carrying out of these laws.
Pronouncing upon the nature of the executive power, the court opined that ordinarily the executive power connotes
the residue of governmental functions that remain after legislative and judicial functions are taken away. The
executive function according to the court comprised of both the determination of policy and carrying it into
execution. The court clarified included the initiation of legislation, the maintenance of order, the promotion of social
and economic welfare, the direction of foreign policy, in fact the carrying on or supervision of the general
administration of the state.
Whilst carving out the space for executive functioning, the court took care to point out that the executive could
undertake its activities only in accordance with the law of this land and the provisions of the Constitution. In a
parliamentary form of government, the acts of the executive are deemed to be sanctioned by the legislature, yet
they can be declared to be void and inoperative if they infringe any of the fundamental rights of the petitioners
guaranteed under part III of the Constitution.
2 . AIR 1955 SC 549 [LNIND 1955 SC 123].
End of Document
Policy Making by the Executive
NS Bindra
In subsequent cases the court continued to uphold the exercise of executive power within its designated space.
Thus in Narindas v State of Madhya Pradesh,3 in a factual situation analogous to Ram Jawaya, the State
Government was held entitled to prescribe school textbooks in the exercise of its executive power. In A. S.
Sangwan vUnion of India,4 the court found the executive power of the Union of India, when it is not trammeled by
any statute or rule is wide The matter of making policy or changing it was perceived by the court as a matter which
resided within the jurisdiction of the executive. The caution of fundamental rights was yet again sounded when the
court stated that an imperative of the Constitution implicit in article 14 is that if (the government) does change its
policy, it must do so fairly and should not give the impression that it is acting by any ulterior criteria or arbitrarily.
Even as the court continually stated that the policy making power of the executive was subject to the equality and
fairness standard of the Constitution, it was generally averse to testing the various policies of the government on
this standard. Thus in Liberty Oil Mills v Union of India5 when fairness questions were raised on the import and
export policy the court opined there must also be a considerable number of other factors which go into the making
of an import policy. Expertise in public and political, national and international economy is necessary before one
may engage in the making or in the criticism of an import policy. Obviously courts do not possess the expertise and
or consequently incompetent to pass judgment on the appropriateness or the adequacy of a particular import
policy.6 In Vicent Parnikaurlangara v Union of India7 when the court was asked to examine the drug policy of the
government due to the harmful effect it was having on the health of the people, the court yet again spoke of the
magnitude, complexity and technical nature of the enquiry... and keeping in view the far reaching implications of the
total ban of certain medicines of which the petitioner has prayed, we must at the onset clearly indicate that a judicial
proceeding (is not (appropriatefor determination of such matter.8 (The technical aspects which arise for
consideration in a matter of this type cannot be effectively handled by a court.9
The aforesaid judicial decisions show that even as the court is requiring government policy to be inconformity with
the constitution, it is wary of testing the policy on the constitutional touchstone as it found such an evaluation to be
judicially unmanageable. In less technical and more familiar terrain the court has insisted upon the observance of
the constitutional standard. Thus, in Suman Gupta v State of J&K,10 the court struck down a policy of nominating
students from one state to the medical college of another state in order to promote national integration. Such
nomination the court held could not be left to the unfettered discretion of the executive authority. If the state
government desires to advance the objective of national integration, it must adopt procedures which are reasonable
and related to the objective.
Even as judicial review of policy has been retained; the Courts have generally deferred to executive supremacy in
the domain. Thus in M K AggarwalvUnion of India11 when it was argued that the executive should be required to
stay with its 1955 policy by which it disallowed the publication of foreign magazine or newspapers which dealt with
news or current affairs, the court rejected the contention and stated that is a policy and policy can change with
change of times. It is a political decision and the Courts have no role to play therein. And yet again (a) policy
decision when taken may be subject matter of judicial review
The assertion that policies could be tested on the constitutional touchstone again came to the fore in Centre for
Public Interest LitigationvUnion of India,12 where the Court was required to examine the allocation of 2G Spectrum
by A. Raja, the telecommunications minister, which allegedly lost the exchequer billions of dollars. The petitioners
Page 2 of 3
contested the manner of allocation of natural resources (on a first come first serve basis) as being arbitrary and
unconstitutional. The court upheld the claim and invalidated all the licenses issued in that manner. It observed:
..There cannot be any quarrel with the proposition that the Court cannot substitute its opinion for the one formed by the
experts in the particular field and due respect should be given to the wisdom of those who are entrusted with the task of
framing the policies. We are also conscious of the fact that the Court should not interfere with the fiscal policies of the State.
However, when it is clearly demonstrated that the policy framed by the State or its agency/instrumentality and/or its
implementation is contrary to public interest or is violative of the Constitutional principles, it is the duty of the Court to
exercise its jurisdiction in larger public interest and reject the stock plea of the State that the scope of judicial review should
not be exceeded beyond the recognised parameters. When matters like these are brought before the judicial constituent of
the State by public spirited citizens, it becomes the duty of the Court to exercise its power in larger public interest and
ensure that the institutional integrity is not compromised by those in whom the people have reposed trust and who have
taken an oath to discharge duties in accordance with the Constitution and the law without fear or favour, affection or ill will
and who, as any other citizen, enjoy fundamental rights and, at the same time, are bound to perform the duties enumerated
in Article 51A.
This case was followed by a Presidential Reference13 under Article 143on the allocation of natural resources,
where the Court was required to advise whether the first come first serve basis of allocation under various statutes
(such as the MMRDA, 1957) was appropriate, or whether the executive ought to strictly follow a system of auction.
In responding to the reference the Court yet again stated its views on primary role of each organ of the State. On
the role of the Court in the realm of policy making it stated that it is not the domain of the court to embark upon
unchartered ocean of public policy in an exercise to consider as to whether a particular public policy is wise or a
better public policy can be evolved. Such exercise must be left to the discretion of the executive and legislative
authorities as the case may be. The court is called upon to consider the validity of a public policy only when a
challenge is made that such policy decision infringes fundamental rights guaranteed by the Constitution of India or
any other statutory right
In responding to the specific query on the various methods by which allocation of natural resources can be
undertaken, the Court clarified:
that this Court cannot conduct a comparative study of the various methods of distribution of natural resources and suggest
the most efficacious mode, if there is one universal efficacious method in the first place. It respects the mandate and
wisdom of the executive for such matters. The methodology pertaining to disposal of natural resources is clearly an
economic policy. It entails intricate economic choices and the Court lacks the necessary expertise to make them. As has
been repeatedly said, it cannot, and shall not, be the endeavor of this Court to evaluate the efficacy of auction vis--vis other
methods of disposal of natural resources. The Court cannot mandate one method to be followed in all facts and
circumstances. Therefore, auction, an economic choice of disposal of natural resources, is not a constitutional mandate.
We may, however, hasten to add that the Court can test the legality and constitutionality of these methods. When
questioned, the Courts are entitled to analyse the legal validity of different means of distribution and give a constitutional
answer as to which methods are ultra vires and intra vires the provisions of the Constitution. Nevertheless, it cannot and will
not compare which policy is fairer than the other, but, if a policy or law is patently unfair to the extent that it falls foul of the
fairness requirement of Art. 14 of the Constitution, the Court would not hesitate in striking it down.
The reference thus yet again concluded with the Court reiterating supremacy of the executive in formulating policy
and its own authority to test that policy on the touchstone of constitutional values.
3 . AIR 1974 SC 1233.
4 . AIR 1981 SC 1545.
5 . AIR 1984 SC 1271 [LNIND 1984 SC 381].
6 . Id at 1278.
7 . AIR 1987 SC 990 [LNIND 1987 SC 898].

Page 3 of 3
8 . Ibid at 994.
9 . Ibid at 995.
10 . AIR 1983 SC 1235 [LNIND 1983 SC 257].
11 . CWP Nos 5770 and 5410 of 1993; 43, 128, and 243 of 1994 as cited in Sangeeta Ahuja People, Law and Justice
Casebook on Public Interest Litigation, Volume II at 639 (1997).
12 . (2012) 3 SCC 1.
13 . (2012) 10 SCC 1 [LNIND 2012 SC 1225].
End of Document
Justiciability of Powers Conferred on the Executive under the Constitution
NS Bindra
Justiciability of Powers Conferred on the Executive under the

Constitution
The last section examined judicial review of policy making by the executive. This section illustratively elaborates on
how the court has pronounced upon the justiciability of powers conferred on the executive by the Constitution which
are to be exercised through the President. The three powers which have been chosen for examination are the
presidents power of pardon under Article 72; to impose presidents rule under Article 356; and to make judicial
appointments under Articles 124 and 217 of the Constitution. The carving out of justiciability standards for the
clemency power is of significance as this has been undertaken in the face of the Government contending that the
power was in the nature of a constitutional prerogative and not subject to judicial review. The power under Article
356 is to be exercised subsequent to the satisfaction of the President. As this satisfaction could arise from a range
of sources and materials, some of which may be political, the courts interpretation of justiciability is of interest
because it could often be surrounded by the political thicket. The issue of judicial appointments is being examined
as it exemplifies a tussle between the text and the values of the Constitution.
Pardoning Powers
Under Article 72 of the Constitution, the President is empowered to grant pardons, reprieves, respites or remissions
of punishment, or to suspend, remit or commute the sentence of any individual who has been convicted of offences
that are covered within the ambit of clauses (a) to (c) of Article 72 (1).
The Court has been required to pronounce upon the relationship of the executives power of pardon with the Courts
power to sentence. The Court has continually asserted that whilst sentencing was a judicial matter the execution of
the pronounced sentence was within the purview of the executive. The powers under sections 432 and 433 of the
CrPC or articles 72 and 161 of the Constitution could be used to terminate the sentence before the stipulated term;
however this termination would not wipe out the sentence from the record. Thus inChandra RabhavKhagendra
Nath14 the petitioner whose sentence of three years was remitted after 16 months was still held to be disqualified
from standing for election under the Representation Of Peoples Act as the remission does not touch the conviction
and the order passed under it.
The need to keep the judicial and executive functions distinct also informed the Supreme Court in NanavativState of
Bombay.15 The petitioner had been found guilty of murder and sentenced to imprisonment for life. The Governor of
Bombay suspended his sentence till the disposal of his appeal by the Supreme Court of India. The Supreme Court
held that if the petitioner wanted the Court to entertain his appeal against his conviction then he needed to either
surrender and seek bail or get a suspension of the sentence from the Supreme Court. The suspension of sentence
by the executive could not be availed of in the pursuit of judicial proceedings.
In Kehar SinghvUnion of India16 it was contended by the Attorney General that the power exercised under Article
72 was not justiciable. Article 72he argued was an enabling provision and no individual had the right to invoke its
protection. Since the power, could be exercised for political considerations, it was not amenable to judicially
manageable standards.
The Court did not accept the contention that the power under Article 72 was beyond its scrutiny. The courts, it
asserted were the constitutional instrumentalities to go into the scope of article 72. Upon such examination it found
that the power under Article 72 is of the widest amplitude, can contemplate a myriad kinds and categories of cases
with facts and situations varying from case to case, in which the merits and reasons of State may be profoundly
Page 2 of 4
assisted by prevailing occasion and passing time. And it is of great significance that the function itself enjoys high
status in the constitutional scheme. The order of the President cannot be subjected to judicial review on its merit.
Despite this ostensible rectitude it approved the proposition in Maru Ram v Union of India17 that considerations for
exercise of power under article 72/161 may be myriad and their occasions protean and are left to the Appropriate
Government but no consideration nor occasion can be wholly irrelevant, irrational, discriminatory or malafide.
However this judicial restraint started to give way, in the the early 2000s, the Court was not just normatively
retaining judicial review but was starting to apply the principles of intervention in concrete cases Thus in Epuru
SudhakarvState of Andhra Pradesh.18 The remission by the Governor of Andhra Pradesh of seven years of
unexpired sentence of a certain Gowru Venkata Reddys was at issue. This remission was challenged by the sons
of those Gowru Venkata Reddy killed. The petitioners argued that the grant of remission was done without
application of mind, relevant materials were not placed before the Governor and that the recommendation for the
grant of remission were based on irrelevant and extraneous reasons (like Mr. Reddy being a good Congress
worker). Pasayat J. relying upon the decisions in Maru Ram, Bommai, Swaran Singh v State of UP, Satpal v State
of Haryana ruled that the act of granting remission/pardon in India was not an act of grace but performance of a
constitutional duty which must be performed for public welfare. The decision by the Governor or the President could
be questioned on the grounds: (a) that the order has been passed without application of mind; (b) that the order is
mala fide; (c) that the order has been passed on extraneous or wholly irrelevant considerations; (d) that relevant
materials have been kept out of consideration; (e) that the order suffers from arbitrariness Kapadia J. required that
the power had to be subject to judicial review because arbitrary and unpredictable exercise of power runs counter to
the tenets of rule of law, hence must be subject to review.
The court also discussed amicus curiae, Mr. Soli Sorabjees concerns about indicating reasons for the Governors or
Presidents decision, as well as the possibility of retraction of pardon in case new facts come to light. The Court
repeated the stance taken in Bommai: that the burden would lie on the government to prove the existence of
relevant material on the basis of which the order was passed, and in case of a refusal to comment, a negative
inference could be drawn. The factual basis for the exercise of the power was further strengthened by the holding
that: if it comes to the knowledge of the Government that the pardon has been obtained on the basis of manifest
mistake or patent misrepresentation or fraud, the same can be rescinded or cancelled. On the basis of the facts in
this case, the court held the grant of remission to be based on wholly extraneous grounds and set it aside.
Imposition of Article 356
An instance of a strict hands-off approach from the judiciary comes in in Re: Sreeramulu19 and Hanumantha Rao
vState of Andhra Pradesh,20 where the Andhra Pradesh High Court held that Courts cannot examine the
appropriateness or adequacy of the grounds for the taking of a decision by the President, nor any bad faith can be
permitted to be attributed to him.
In State of RajasthanvUnion of India,21 the Court introduced scope for judicial review of an order under Article 356,
but to the extent of testing it for mala fides or if the basis is wholly extraneous. Thus Bhagwati and Gupta J. ruled on
the matter of satisfaction as follows:
The satisfaction of the President is a subjective one and cannot be tested by reference to any objective tests. There may be
a wide range of situations which may arise and their political implications and consequences may have to be evaluated in
order to decide whether the situation is such that the government of the State cannot be carried on in accordance with the
provisions of the Constitution. It is not a decision which can be based on what the Supreme Court of the United States has
described as judicially discoverable and manageable standards. It would largely be a political judgment based on
assessment of diverse and varied factorsbut one thing is certain that if the satisfaction is mala fide or is based on wholly
extraneous and irrelevant grounds, the Court would have jurisdiction to examine it This is the narrow minimal area in which
the exercise of power under Article 356, clause (1) is subject to judicial review and apart from it, it cannot rest with the Court
to challenge the satisfaction of the President that the situation contemplated in that clause exists.
S.R. BommaivUnion of India22 represents the high point of judicial participation in the validation or invalidation of
an order passed under Article 356 . The majority judgments, while nebulous on several issues where they precisely
agree, demonstrate agreement when it comes to the scope of judicial review. The judgment of Justice Kuldip Singh
and P B Sawant introduced standards of objectivity with which the Presidential order was required to conform. This
fresh standard seems to be in opposition to the earlier ruling in State of Rajasthan. The judges elaborated on the
standard as follows:
Page 3 of 4
[i] n other words, the Presidents satisfaction has to be based on objective material. That material may be available in the
report sent to him by the Governor or otherwise or both from the report and other sources. Further, the objective material so
available must indicate that the Government of the State cannot be carried on in accordance with the provisions of the
Constitution. Thus the existence of the objective material showing that the Government of the State cannot be carried on in
accordance with the provisions of the Constitution is a condition precedent before the President issued the Proclamation
the exercise of power by the President under Article 356 (1) to issue Proclamation is subject to the judicial review at least to
the extent of examining whether the conditions precedent to the issuance of the Proclamation have been satisfied or not.
This examination will necessarily involve the scrutiny as to whether there existed material for the satisfaction of the
President that a situation had arisen in which the Government of the State could not be carried on in accordance with the
provisions of the Constitution. Needless to emphasise that it is not any material but material which would lead to the
conclusion that the Government of the State cannot be carried on in accordance with the provisions of the Constitution
which is relevant for the purpose. It has further to be remembered that the Article requires that the President “has to be
satisfied” that the situation in question has arisen. Hence the material in question has to be such as would induce a
reasonable man to come to the conclusion in question.
It was contended before the Court that since the satisfaction of the President could emanate from the report of the
Governor or otherwise and these other materials could well be political in nature hence it was appropriate for the
Court to desist. On the question of entering the political thicket Justice Ahmadi was of the view that that the opinion
which the President would be based on political judgement and it is difficult to evolve judicially manageable norms
for scrutinizing such political decisions. Similarly Justice Varma and Yogeshwar Dayal were of the view that the
materials could consist of several imponderables which is not strictly legal evidence, the credibility and authenticity
of which is incapable of being tested in law courts. The fact that the examination of the decisions may require the
Court to engage with political materials is no reason to hold that the power of judicial review does not exist. Instead
the court took the view that the power of judicial review goes to the power of the court though in exercising the
power of judicial review, the court in an appropriate case may decline to exercise the power as being non-
justiciable.
In B P Singhal v Union of India & Anr23 a writ petition was filed against the removal of the Governors of Uttar
Pradesh, Haryana, Gujarat and Goa in 2004, by the President on the advice of the Union Council of Ministers.
While the specific facts at hand were no longer relevant, due to passage of time, the question of general
significance involving the doctrine of pleasure was discussed by a Constitutional Bench of the Supreme Court.
The court detailed the character of the Governors post, and the manner in which the constituent assembly foresaw
his removal. Relying on relevant past judgements like Bommai and State of Rajasthan v Union of India, that the
removal of a Governor is subject to judicial review of a very limited nature. It held:
(i) Under Article 156 (1), the Governor holds office during the pleasure of the President. Therefore, the
President can remove the Governor from office at any time without assigning any reason and without
giving any opportunity to show cause.
(ii) Though no reason need be assigned for discontinuance of the pleasure resulting in removal, the power
under Article 156 (1) cannot be exercised in an arbitrary, capricious or unreasonable manner. The power
will have to be exercised in rare and exceptional circumstances for valid and compelling reasons. The
compelling reasons are not restricted to those enumerated by the petitioner (that is physical/mental
disability, corruption and behaviour unbecoming of a Governor) but are of a wider amplitude. What would
be compelling reasons would depend upon the facts and circumstances of each case.
(iii) A Governor cannot be removed on the ground that he is not in sync with the policies and ideologies of the
Union Government or the party in power at the Centre. Nor can he be removed on the ground that the
Union Government has lost confidence in him. It follows therefore that change in government at Centre is
not a ground for removal of Governors holding office to make way for others favoured by the new
government.
(iv) As there is no need to assign reasons, any removal as a consequence of withdrawal of the pleasure will be
assumed to be valid and will be open to only a limited judicial review. If the aggrieved person is able to
demonstrate prima facie that his removal was either arbitrary, malafide, capricious or whimsical, the court
will call upon the Union Government to disclose to the court, the material upon which the President had
taken the decision to withdraw the pleasure. If the Union Government does not disclose any reason, or if
the reasons disclosed are found to be irrelevant, arbitrary, whimsical, or malafide, the court will interfere.
Page 4 of 4
However, the court will not interfere merely on the ground that a different view is possible or that the
material or reasons are insufficient.
The Court was referred to the recommendations of the Sarkaria Commission in order to to interpret the limits on the
powers of the President. The court declined to interpret the provisions of the Constitution in the light of the
Commissions report as in its view the recommendations howsoever logical, or deserving consideration and
acceptance, remain recommendations. They cannot override the express provisions of the Constitution as they
stand. Nor can they assist in interpreting Article 156 . The very fact that such recommendations are made, shows
that the position under the existing Constitutional provisions is otherwise. They are suggestions to be considered by
those who can amend the Constitution. They do not assist in interpreting the existing provisions of the Constitution.
14 . AIR 1961 SC 334 [LNIND 1960 SC 248].

15 . AIR 1961 SC 112 [LNIND 1960 SC 193].
16 . (1989) 1 SCC 204 [LNIND 1988 SC 586].
17 . 1981 1 SCR 1196 [LNIND 1980 SC 446].
18 . AIR 2006 SC 3385 [LNIND 2006 SC 807].
19 . AIR 1974 AP 106 [LNIND 1973 AP 43].
20 . (1975) 2 AWR 277.
21 . (1977) 3 SCC 592 [LNIND 1977 SC 214].
22 . (1994) 3 SCC 1.
23 . (2010) 6 SCC 331 [LNIND 2010 SC 468].
End of Document
Judicial Appointments
NS Bindra
Under Article 124 of the Constitution of India, every Judge of the Supreme Court will be appointed by the President
in consultation with the Chief Justice of India. InSP Gupta vUnion of India24 the expression consultation was
interpreted in accordance to its plain meaning. Justice Bhagwati quoted with approval the meaning of consult
provided by Justice Subharao in Pushpam v State of Madras25 which had been relied upon by the Supreme Court
whilst interpreting consultation in Sankalchand. According to this interpretation “the word consult implies a
conference of two or; more persons or, an impact, of two or more minds in respect of a topic in order to enable them
to evolve a correct or at-least a satisfactory solution. In order that the two minds may be able to confer and produce
a mutual impact, It is essential that each must have for its consideration full and identical facts which can at once
constitute both the source and foundation of the final decision“. The court thus insisted that each of the
constitutional functionaries that is to be consulted must have full and identical facts which have a bearing upon the
appointment or non-appointment of the person. Even as the court gave the widest import to the meaning of the term
consultation, it simultaneously insisted that it is only consultation which is provided by way of fetter upon the power
of appointment vested in the Central Govt. and consultation cannot be equated with concurrence. Justice Bhagwati
quoted with approval Justice Krishna Iyers interpretation in Sankalchand26 that “consultation is different from
consentaneity. They may discuss but may disagree; they may confer but may not concur.” Consequently whilst the
Court insisted upon the duty of consultation it did accept the contention that primacy should be accorded to the
opinion of the Chief Justice. If primacy were to be given to the opinion of the Chief Justice of India, it would, in effect
and substance amount to concurrence, because giving primacy would mean that his opinion must prevail over that
of the Chief Justice of the High Court and the Governor of the State, which means that the Central Government
must accept his opinion. But it is only consultation and not concurrence of the Chief Justice of India that is provided
in Clause (1) of Article 217.
The primacy which was yielded to the executive in S P Gupta was reconsidered by the court in Subhash
SharmavUnion of India27 a three judge bench was of the view that there was a need to reconsider the position of
the Chief Justice of India in the matter of appointment of judges. The Bench was also of the view that the meaning
of the word consultation needed to be reconsidered in the light of the constitutional philosophy of separation of
powers. The bench suggested that the issue be considered by a larger bench because (a) n independent non-
political judiciary is crucial to the sustenance of our chosen political system.28
Subsequent to Subhash Sharma, in 1993, the question of appointment was considered by the Court in Supreme
Court Advocates on Record Association vUnion of India.29 The petitioners sought a reconsideration of the majority
opinion in S.P. Gupta. They contended that the role of the Chief Justice of India should be accorded primacy in the
matter of appointments to the Supreme Court and the High Courts and transfers of the High Court Judges. The
executive they argued only had the role of making the appointments and transfers in accordance with the opinion of
the Chief Justice of India. Shri Parasaran on the other hand pointed out that the matter of concurrence was
expressly considered and dropped by the Constituent Assembly. He therefore pleaded that the S P Gupta decision
should not be disturbed.
The Supreme Court was thus required to consider whether the opinion it provided in S P Gupta should continue to
occupy the field or should the decision and the accompanying reasoning be altered. The Court in SCORA continued
to emphasize that the judiciary and the executive were required to exercise this power jointly. The cooperative
nature of the power was evident from the fact that an appointment of a judge of the High Court or Supreme Court
which occurs without due observance of the consultative process is invalid and without authority of law. Keeping the
Page 2 of 2
compulsory nature of consultation in view the Court revisited the matter of primacy. It reiterated the necessity of
cooperative functioning but in the event that such joint functioning cannot happen then primacy needs to be
accorded to the opinion of that functionary in the partnership who would have special expertise. The Chief Justice of
India was found by the Court to possess that expertise.
The primacy was also accorded to the Chief Justice on the rationale that whilst the decision of the executive was
opaque, non transparent and non accountable; the Chief Justice was answerable to the bench and the bar on the
kind of person who is appointed as a judge. The use of the word consultation instead of concurrence was made by
the Constitution makers explained the Court in order to emphasize the cooperative nature of the power. The term
consultation was used so that the selection should be made as a result of a participatory consultative process in
which the executive should have power to act as a mere check on the exercise of power by the Chief Justice of
India, to achieve the constitutional purpose. Thus, the executive element in the appointment process is reduced to
the minimum and any political influence is eliminated. It was for this reason that the word consultation instead of
concurrence was used, but that was done merely to indicate that absolute discretion was not given to any one, not
even to the Chief Justice of India as individual, much less to the executive, which earlier had absolute discretion
under the Government of India Acts.
Consequently the Court ruled that the duty of consultation required both the executive and the judiciary to consult
all concerned before forming their opinion. In short in the matter of appointments of Judges of the superior judiciary,
the constitutional requirement is, that the President is to act in accordance with the advice of the Council of
Ministers as provided in Article 74 (1); and the advice of the Council of Ministers is to be given in accordance with
Articles 124 (2) and 217 (1), as construed by this Court. In this sphere, Article 74 (1) is circumscribed by the
requirement of Articles 124 (2) and 217 (1), and all of them have to be read together.
A clarification was sought from the Court with regard to its decision in the aforesaid case and in Re: Special
Reference,30 the Court modified the previous decision to the extent of numbers, and resolving the question of
whether the role of the Chief Justice was primus inter pares or not. The Court opined:
The Chief Justice of India must make a recommendation to appoint a Judge of the Supreme Court and to transfer a Chief
Justice or puisne Judge of a High Court in consultation with the four senior most puisne Judges of the Supreme Court.
Insofar as an appointment to the High Court is concerned, the recommendation must be made in consultation with the two
senior most puisne Judges of the Supreme Courtthe Chief Justice of India is not entitled to act solely in his individual
capacity, without consultation with other Judges of the Supreme Court, in respect of materials and information conveyed by
the Government of India for non-appointment of a Judge recommended for appointment.
The Court has thus through a process of interpretation altered the nature of the constitutional requirement in the
matter of the appointment of judges. There are initiatives afoot to wrest this power of appointment from the judiciary
and vest it in a Judicial Commission, however the result of this legislative effort is still awaited.
24 . AIR 1982 SC 149.
25 . AIR 1953 Mad 392 [LNIND 1952 MAD 243].
26 . Union of India v Sankalchand Himmatlal Sheth AIR 1977 2328.
27 . AIR 1991 SC 631 [LNIND 1990 SC 630].
28 . Ibid at 640.
29 . (1993) 4 SCC 441.
30 . (1998) 7 SCC 739 [LNIND 1998 SC 1278].
End of Document
Supplementing the Executive
NS Bindra
In all the cases discussed above the Courts have pronounced upon the limits of judicial review and justiciability of
executive action. However a more pro-active role was allocated to the judiciary in the case of Vineet NarainvUnion
of India.31 The case was initiated by a petition, which alleged that Government agencies like the CBI and revenue
authorities were not performing their duties qua an investigation that dealt with transfer of money through the
Hawala system. While this system was being used by terrorists to fund activities against India, it was also the
system backing an unholy nexus between politicians and bureaucrats, whose corrupt financial dealings occurred
through the same system. Hence, the petitioner alleged that the CBI and other Government agencies had failed to
investigate the matter due to the association of political forces with it.
The issue before the court was whether it is within the domain of judicial review and it could be an effective
instrument for activating the investigative process which is under the control of executive?
The Court had, through interim orders passed in the course of arguments, empowered itself to monitor investigation
proceedings till the filing of the charge-sheet. The Court directed the CBI not to report the progress of the
investigations to the person occupying the highest office in the political executive. This was, in the opinion of the
Court, done to maintain the credibility of the investigations. This is what the Court characterized as a continuing
mandamus. The rationale used by the Court to justify its incursions into other domains was that while the overall
control of the agencies and responsibility of their functioning has to be in the executive, but then a scheme giving
the needed insulation from extraneous influences even of the controlling executive, is imperative.
The outlook of the court stands captured in the following quotation where the court ruled that It is the duty of the
executive to fill the vacuum by executive orders because its field is coterminous with that of the legislature, and
where there is inaction even by the executive, for whatever reason, the judiciary must step in, in exercise of its
constitutional obligations under the aforesaid provisions to provide a solution till such time as the legislature acts to
perform its role by enacting proper legislation to cover the field.
The judgment in Vineet Narain is lauded and assailed by legal academia as a clear assertion of the judiciarys
relationship with the executive being complementary, with the thin veneer of separation of powers rendered almost
invisible. The following observation problematizes a conventional and strict understanding of judicial and executive
functions:
There are ample powers conferred by Article 32 read with Article 142 to make orders which have the effect of law by virtue
of Article 141 and there is mandate to all authorities to act in aid of the orders of this Court as provided in Article 144 of the
Constitution. In a catena of decisions of this Court, this power has been recognised and exercised, if need be, by issuing
necessary directions to fill the vacuum till such time the legislature steps in to cover the gap or the executive discharges its
role.
The writ of continuing mandamus is an instance of innovation by a judiciary that may not have envisaged its cart
wheeling into other areas of law. It has been liberally invoked when it comes to situations plagued by a biased or
interested executive.32 The Court effectively substitutes the executive with itself in matters ranging from
malnutrition of street children to protection of the environment.33 Some instances of the use of continuing
mandamus in are:
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(The issuing and regulating of cycle rickshaws in Delhi34
(Import of hazardous toxins/wastes35
(Drainage, sewage and waste disposal system in Patna36
The justification for the evolution of such a relief was the inactivity of the executive, and also the need to effectively
adjudicate on matters where the executive was interested. The morphing of a limited remedy into one that may be
exercised as a judicial choice demonstrates a significant change in the judiciary- executive relationship. The
expansion of the continuing mandamus doctrine exhibits that the judiciary does not see itself as a second-guesser
or interpreter or even an enforcer of a system of checks and balances, but as an institution that is at will to direct
and replace the executive wherever it deems fit.
This chapter shows how the judiciary had at first provided a wide area of operation to the executive; however
progressively by increasing the realm of judicial review it has systematically curtailed the field of unchecked
executive operation. Judicial oversight has so grown over time that the courts have interpreted their role not just to
make the executive to do their duty but to perform, if required, that role themselves.
31 . AIR 1998 SC 889 [LNIND 1997 SC 1657], JT 1997 (10) SC 247, 1999 (1) SCALE 442, (1998) 1 SCC 226 [LNIND
1997 SC 1657], [1997] Supp 6 SCR 595.
32 . Prior to Vineet Narain, it has been invoked in environmental matters such as T.N. GodavarmanvState of Tamil Nadu.
33 . D.Y. Chandrachud, Constitutional and Administrative Law in India, 36 Intl J. L. Info 332 (2008).
34 . Municipal Corporation of Delhi v Manushi Sangathan, (2012) 12 SCC 483.
35 . Research Foundation for Science, Technology and Natural Resource Policy v Union of India, AIR 2012 SC 2627
[LNIND 2012 SC 387].
36 . Tirupati Balaji Developers Pvt. Ltd. v State of Bihar, (2004) 5 SCC 1 [LNIND 2004 SC 538].
End of Document
NS Bindra
Edition > PART II TECHNIQUES, TOOLS AND RULES OF INTERPRETATION > CHAPTER 4
Presumptions
Part II Techniques, Tools and Rules of Interpretation
Presumptions Techniques, Tools and Rules of Interpretation

Part II TECHNIQUES Tools and Rules of Interpretation
Introduction
Interpretation is the process of gleaning the meaning of a text. Whilst the previous part narrated how perceptions on institutional
identity contribute to the process of interpretation, in this part the repertoire of techniques that are used to undertake the activity
have been described and the manner in which these techniques have been used by courts examined. It is important to note that
interpretation does not happen or meaning is not gleaned just by the use of these techniques. The person using these
techniques and tools, with what purpose and to what end all contribute to the process of interpretation. Yet since this exercise to
search meaning is mediated through these tools and techniques, they assume critical importance in the interpretation process.
In effect these rules of interpretation structure judicial discretion. Judges are expected to invoke the appropriate rule, technique
or tool of interpretation in undertaking the exercise; and the adeptness with which this task is undertaken significantly contributes
to the sustainability and legitimacy of the interpretation reached.
This Part encompasses nine chapters which include the chapters on: presumptions; rules of interpretation; a statute and its
parts; internal aids; the distinction between mandatory and directory provisions; the retrospective operation of statutes; the
maxims guiding interpretation; the external aids to interpretation and the rules governing the repeal of statutes.
In the first chapter of the part the presumptions which a priori inform the interpretation process are being examined. These
presumptions are the default position from where courts begin the exercise of interpretation. These default positions have been
primarily formulated to assert the supremacy of legislative intention be it in the presumption of validity or the belief that
legislatures do not make mistakes. The presumptions of statutory interpretation like all presumptions are rebuttable however the
burden of rebutting them primarily lies on the person challenging their operation. Since, in the absence of challenge
presumptions rule, they provide a useful guide to the initial direction that the Courts will assume in the process of interpretation.
End of Document
NS Bindra
Presumptions
Part II Techniques, Tools and Rules of Interpretation
Chapter 4 Presumptions
Chapter 4Presumptions
End of Document
Statutes are Presumed to be Valid
NS Bindra
Presumptions
Amongst Alternatives, Constitutional Meaning to be Preferred
There is a presumption in favour of the validity of a statute.1 Courts of law have to presume that the particular law is
intra vires and not ultra vires.2 It is well-settled that if certain provisions of law construed in one way would make
them consistent with the Constitution, and another interpretation would render them unconstitutional, the court
would lean in favour of the former construction.3 The construction which leads to unconstitutionality;4 or a
construction that results in invalidity rather than validity5 must be avoided. Where two reasonable constructions are
possible, one which does not infringe fundamental rights;6 or the one which would make the law intra vires;7 or is
consistent with constitutionality;8 or the one which validates the statute and shortens litigation;9 or which sustains
the validity of the provision of law10 should be preferred. If certain provisions of law construed in one way will be
consistent with the Constitution and if another interpretation would render them unconstitutional, the court would
lean in favour of the former construction,11 and was construing if necessary to keep it within powers of legislature,
in a more limited sense, the generality of the language of the Act, which, if read literally, will apply to matters
beyond relevant legislative powers.12 Tindal CJ. observed:13
When an Act is open to two constructions, you may always, call in the ground and cause of making the statute.
Burden to prove that the presumption is rebutted
The presumption is in favour of the constitutionality of an enactment and the burden is upon him who attacks to
show that there has been a transgression of constitutional principles.14 The courts, it is accepted, must presume
that the legislature understands and correctly appreciates the needs of its own people that its laws are directed to
problems made manifest by experience and that its discriminations are based on adequate grounds.15 That
construction has to be preferred which would make the provisions in an Actintra vires the legislature which passed
it.16 Judicial salvage of a statutory provision by limiting the semantic sweep of the expressions used and tailoring it
to the constitutional requirements, if that is possible without a rewriting of the provisions, is a sound practice
honoured and adopted by eminent judges. It is well-accepted that the mode of construction of an Act, which used
wide words as will bring it within constitutional limits, should be preferred.17 The presumption of constitutionality
recognised by courts arises only when it is otherwise not possible to come to a satisfactory conclusion as to the
constitutionality of a statute. If we consider the presumption as a China Wall, then the sanctity of the constitutional
provisions would vanish. Such a view is bound to incite the center and the states to trespass on each others fields.
Presumption is relevant only when more than one reasonable conclusion is possible.18
In Hanif Qureshi (Mhd) v State of Bihar,19 the Court was dealing with the constitutional validity of several legislative
enactments banning slaughter of certain animals passed by different States. The Court held most of the portions of
the legislations constitutionally valid, except for the portions that prohibited the slaughter of bulls without any
prescription of age or usefulness. In arriving at this decision, the Court gave the following observations as regards
the presumption of constitutionality:
There is always a presumption in favour of the constitutionality of an enactment and that the burden is upon him, who
attacks it, to show that there has been a clear violation of the constitutional principles. The courts, it is accepted, must
presume that the legislature understands and correctly appreciates the needs of its own people, that its laws are directed to
problems made manifest by experience and that its discriminations are based on adequate grounds. It must be borne in
mind that the legislature is free to recognise degrees of harm and may confine its restrictions to those cases where the
need is deemed to be the clearest and finally that in order to sustain the presumption of constitutionality the Court may take
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into consideration matters of common knowledge, matters of common report, the history of the times and may assume
every state of facts which can be conceived existing at the time of legislation. We, therefore, proceed to examine the
impugned Acts in the light of the principles thus enunciated by this Court.
Presumption holds good for all Legislatures
There is always a presumption that a legislature, be it central or provincial, never intended to exceed its legislative
ambit so as to conflict with the jurisdiction of another legislature.20 It is a sound principle of construction that Acts of
a sovereign legislature, and indeed of subordinate legislatures, such as a municipal authority, should, receive such
an interpretation as will make them operative and not inoperative.21 It would be presumed that the legislature did
not intend to enact anything beyond its competent territorial limits,22 and to treat the Act as limited to such subjects
would be within the power of the legislature.23
Presumption for various Laws
In order to decide whether a statute is beyond the competence of the state legislature, the rules framed under the
Act can well be called in aid for the purpose of understanding the scheme and purpose of the legislation.24
All kinds of Legal Documents
A contract has to be construed so as to make it valid, the terms of the lease have to be understood in a reasonable
manner, so as to make the lease arrangement valid.25
Statute in Infringement of Fundamental Rights
In determining the constitutional validity of measure or a provision therein, regard must be had to the real effect and
impact thereof on the fundamental right.26 Where the validity of a statute is impugned on the ground that its
provisions contravene fundamental rights guaranteed by the Constitution and two constructions are possible as to
the meaning and intention of the legislature, the court should adopt that construction which upholds the validity.27
There is always the presumption against the interference by the legislature with the liberty of the subject, and if a
particular statute 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.28 The benefit of doubt must always go to the
person on whose liberty an inroad has been made without trial.29
In State of Bombay vHeman Santlal,30 the Bombay High Court made a distinction between a case where the law
contravenes a fundamental right and the case where simply the letter of law is challenged, when it dealt with the
divesting of property under the Bombay Land Requisition Act, 1948. It was held that the court must always lean in
favour of validity of an Act rather than against it, except where a law is said to contravene a fundamental right, in
which case the court will zealously scrutinise the provisions of the impugned Act and see that no fundamental right
is violated. Where the challenge is directed against the letter of the law merely, the law being substantially in the
interest of a large body of citizens, the court will try to uphold the law and not permit the letter of the law to defeat
the objects of the legislature.
Rules when the Language is ambiguous
Courts must find out the literal meaning of the expression in the task of construction. In doing so, if the expressions
are ambiguous, then the construction that fulfills the object of the legislation must provide the key to the meaning.31
However, there is a presumption that the legislature does not leave any lacuna. When it is equally possible to take
the view which would be conducive to the conclusion that there is no lacuna in the legislation, it would be
unreasonable to take the view that the legislature has left a lacuna, either by negligence or by lack of foresight, or
because it did not know its job.32 If the language of an enactment is ambiguous, and on one construction, it would
be within the powers of the legislature, the courts will construe ambiguous expression in such a manner as to
maintain the validity of the statute if the language will reasonably bear such interpretation.33 The Act should be so
read as to prevent it from being exposed to the vice of unconstitutionality.34 A statutory rule may be read down in
order to uphold its constitutionality.35 It may also be read down to make it equitable. Any power granted by the
Constitution for a specific purpose should be construed liberally so that the object for which the power is granted is
effectively achieved.36
In Firm Soma Rajaibv Sales-tax Officer,37 the Court held that a reasonable doubt as to the validity of an Act must
be solved in favour of the legislative action and the Act sustained. Using this presumption, the Court held the third
Page 3 of 10
amendment to the Hyderabad General Sales Tax Act, 1952 to be an act of a competent legislature as it was
covered by Item 54 of List II, and was passed earlier than the Essential Goods (Declaration and Regulation of Tax
on Sale and Purchase) Act, 1952.
In Calcutta Gujarati Education Society v Calcutta Municipal Corporation,38 the question under consideration was
whether a tenant had a right of appeal under the Calcutta Municipal Corporation Act, 1980.39 An appeal could only
be filed under the Act after the consolidated rate demanded for the property had been deposited in the Corporations
office. The provision of the Act made the tenant liable to pay only a portion of tax leviable on him by the owner. After
examining the provisions the Court held that the tenants, sub-tenants, or occupiers had to share the burden of tax
to an appreciable extent and if the right of appeal was held to be available to them on payment of the entire tax
levied on the whole building even though they occupy only a portion of it, the remedy of appeal would be highly
onerous and virtually denied. The right of appeal as an effective remedy would be available only on payment of the
consolidated rate as apportioned as his liability and held payable by him. Hence, the Court held that any other
interpretation would frustrate the very object of providing right of appeal to person liable.
Limits on the applicability of the Principle
However, it is not for the court to put an unnatural and forced meaning on the words that have been used by the
legislature in the search for interpretation to save the statutory provisions, or to read a policy, which is not there
merely because a policy could have been given.40 A court usually starts with the presumption in favour of the
constitutionality of a statute, and it is its duty to uphold it, if it be possible, without doing violence to the meaning of
the words used in it, to bring it into harmony with any of the provisions of the Constitution.41 It is true that the
presumption is in favour of the constitutionality of a legislative enactment and it has to be presumed that a
legislature understands and correctly appreciates the needs of its own people. But when on the face of a statute
there is no classification at all, and no attempt has been made to select any individual or group with reference to
any differentiating attribute peculiar to that individual or group and not possessed by others, this presumption is of
little or no assistance to that state.42
Brewer J. observed in Gulf Colourado Co. v Ellis:43
To carry the presumption to the extent of holding that there must be some undisclosed and unknown reason for subjecting
certain individuals or corporations to hostile and discriminatory legislation is to make the protection clauses of the
Fourteenth Amendment a mere rope of sand.
Intention of Legislature does not confer Validity
The validity of an Act depends on the legislative competency irrespective of the intention which leads to its
enactment.44 In A Cracknell v State of Uttar Pradesh,45 the State argued that the Uttar Pradesh Court of Wards
Act, 1912, had been enacted for the benefit of proprietors and it was intended to prevent the dissipation of estates.
The Court did not find favour with this argument, and held as follows:
This Act may have been framed in the interests of the proprietors of the Zamindari but in its actual working it is liable to
cause hardship to individual proprietors whose estate is taken over by the Court of Wards. The intention with which a law is
made is hardly relevant for the consideration of the contentions raised by the petitioner. We have to see whether any
particular provision of the Act infringes any provision of the Constitution. If it does, then whatever may be the intention of
the legislature it must be held to be void.
Spirit of the Constitution is not an adequate basis for challenge
If any statutory provision or executive actions does not contravene any specific article of the Constitution, the court
should be reluctant to hold any such thing as unconstitutional merely on the ground that it is violative of something
so undefinable as the spirit, especially in the light of the well-recognised principle that the person who assails the
constitutionality of any particular Act or order, must carry the burden of showing how it is vulnerable to attack, there
being a presumption in favour of its constitutionality.46
Severability of provisions
A statute may be found invalid in some of its parts but valid in others; it may be valid at one time and not another; it
may be valid under one state of facts but not another; it may be valid as to one class of persons and invalid as to
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others.47 Sutherlands commentary on Statutory Construction furnishes the following opinion in the presumption as
to severability or non-severability of parts of a statute:48
In commenting upon the independence of the parts of a statute, or upon the inducement for the passage of an Act, it may
be said that a presumption in favour of severability or non-severability is justified. The most usable rule of presumption is
that adopted by the United States Supreme Court and followed in many states...the effect of separability clause in an
enactment is to replace a presumption that the statute was meant to be indivisible by a presumption in favour of
separability. This latter presumption must be overcome by proof of considerations making evident the inseparability of the
statute.
Crawford has summed up the law in the following words:49
In determining separability the test is whether the legislature had manifested an intention to deal with a part of the subject-
matter covered, irrespective of the rest of the subject-matter; if such an intention is manifest, the subject-matter is
separable. If the valid parts are complete in themselves and independent of the invalid parts and capable of being executed
according to the intention of the legislature, they must be sustained by the court, notwithstanding partial invalidity. The
invalid parts, however, may be dropped only where the part which is retained is fully operative as a law. And where the
invalid and valid parts are inter-independent and essentially and inseparably connected in substance, there is a strong
presumption that the legislature would not have enacted one part without the other, and the entire statute will fall. A similar
result would occur where all the provisions of the Act are connected as parts of single scheme. In such a case if the main
object and purpose is invalid, those provisions which are incidental will also fall. But in any instance, there is a presumption
that the legislature intended for the statute or Act to be effective in its entirety, unless something in the Act indicates to the
contrary. In order to ascertain the intention of the legislature the court may examine the entire statute, including the invalid
as well as the valid portions and resort to the usual principles of statutory construction. But where it is impossible to
determine what part of a statute was intended by the legislature to be operative when certain of its provisions have been
held invalid, the whole statute will fall.
Robert L Stern has also contributed a very instructive article.50 Some extracts therefrom may be found useful in
this behalf:
The problem of determining which portions of a partly invalid law may stand alone is one of more than usual significance at
the present time, when many laws are being challenged on constitutional grounds. Only if legislators are able to guess how
the courts will act in exercising invalid parts of a statute can they proceed intelligently to enact laws with any assurance that
their work will not be completely nullified because of judicial disapproval of any part of the statutory scheme. The attitude of
the Supreme Court, the final arbiter of the constitutionality of state and federal legislation, is, of course, of prime
importance. The inquisitive legislator seeking light on this problem will find that the Supreme Court, the state courts, and
secondary authorities will appear to agree that invalidity of part of a law or of some of its applications will not affect the
remainder: (1) if the valid portions or applications are capable of being given legal effect standing alone; and (2) if the
legislature would have intended them to stand with the invalid provisions stricken out. This rule seems fair enough, but ill-
will fare the legislator who relies on its exclusive simplicity. For it has been embroidered by the Supreme Court with
negative and positive presumptions, and with conflicting rules, some of which are applied in some cases and some in
othersusually without any explicit recognition that they conflict. Even when the intention of the legislative body is set forth in
a separability clause, there is no assurance that the express will of the legislature will be respected...
Problem of Separable Application
The problem of separable applications may be treated either as a problem of separability or as one of statutory
construction. When a court is confronted with statutory language applying to situations both within and without
legislative power, the question of whether to sustain the valid applications of the law is very similar to that of
whether to sustain the constitutional provisions of a statute containing invalid language. But the judicial technique to
be applied is somewhat different. When particular words of a section of a statute are unconstitutional, a court may
exorcise them from the law in order to save the remainder. When statutory language is too broad, however, there is
nothing to be severed. The question before the court in such a case is whether it should construe the language
employed as limited to its constitutional applications, in accordance with the maxim that a statute should not be
given an unconstitutional construction. But in dealing with both situations, the only standard for a court to follow in
its judgment as to whether the legislative body would intend the law to be given effect to whatever extent was
constitutionally possible. The elementary rule of construction is that where two interpretations of a statute are in
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reason admissible; one of which creates a repugnancy to the Constitution; and the other avoids such repugnancy;
the one which makes the statute harmonise with the Constitution must be adopted.51
Difference between Civil and Criminal Statutes
In several cases, the court had intimated that the true distinctions may be between those statutes having penal
consequences and those having purely civil effectsthat words of limitation cannot be read into the former, since
such statutes must be strictly construed. But the decisions do not square with the suggested distinction. Both state
and federal criminal laws have had exceptions read into them in order to save them and to allow or them to be
constitutionally applied. And the converse rule that limiting words may not be read into a law so as to save its
constitutionality has been given effect in dealing with civil as well as with criminal statutes. The criminal nature of
the statute, however, may not be dismissed without significance. The penal nature of the law accordingly cannot
explain all the decisions but it does help to explain the courts attitude in many of them. Examination of the opinions
indicates that the court may not have been as much concerned with the problem of separability as with the inability
of citizens to tell which acts were prohibited, if the law were interpreted to have any other meaning than that of the
words used. The courts aversion to indefinite penal statutes affords a more satisfactory basis for these decisions
than its invocation of peculiar principles of statutory construction or separability not otherwise applied.
Rules of construction laid down by American courts were summarized by Venkatarama Aiyar J, in RMD,
Chamarbaugwala v Union of India as under:52
(i) in determining whether the valid parts of a statute are separable from the invalid parts thereof, it is the
intention of the legislature that is the determining factor. The test to be applied is whether the legislature
would have enacted the valid part if it had known that the rest of the statute was invalid;
(ii) if the valid and invalid provisions are so inextricably mixed up that they cannot be separated from one
another, then the invalidity of a portion must result in the invalidity of the Act in its entirety. On the other
hand, if they are so distinct and separate that after striking out what is invalid, what remains is in itself a
complete code independent of the rest, then it will be upheld notwithstanding that the rest has become
unenforceable;
(iii) even when the provisions which are valid are distinct and separate from those which are invalid, if they all
form part of a single scheme which is intended to be operative as a whole, then also the invalidity of a part
will result in the failure of the whole;
(iv) likewise, when the valid and invalid parts of a statute are independent and do not form part of a scheme
but what is left after omitting the invalid portion is so thin and truncated as to be in substance different from
what it was when it emerged out of the legislature, then also it will be rejected in its entirety;
(v) the separability of the valid and invalid provisions of a statute does not depend on whether the law is
enacted in the same section or different sections; it is not the form, but the substance of the matter that is
material, and that has to be ascertained on an examination of the Act as a whole and of the setting of the
relevant provisions therein;
(vi) if after the invalid portion is expunged from the statute what remains cannot be enforced without making
alterations and modifications therein, then the whole of it must be struck down as void, as otherwise it will
amount to judicial legislation;
(vii) in determining the legislative intent on the question of separability, it will be legitimate to take into account
the history of the legislation, its object, title and the preamble to it.
An Act made by the legislature represents the will of the people and that cannot be lightly interfered with. In India
the approach of the courts while examining an enactment is to start with the presumption of constitutionality. The
courts try to sustain the validity of a statute to the extent possible and they strike that down only when it is not
possible to sustain the same. The court should not approach the enactment with a view to pick holes or to search
for defects of drafting, much less inexactitude of the language employed. Indeed any such defects of drafting should
be ironed out as part of the attempt to sustain the constitutional validity of the enactment. The unconstitutionality
must be plainly and clearly established before an enactment is declared as void. The same approach holds good
while ascertaining the intent and purpose of an enactment or its scope and application. The court must recognise
the fundamental nature and importance of legislative process and accord due regard and deference to it, just as the
legislature and executive are expected to show due regard and defence to judiciary. It cannot also be forgotten that
or constitution recognizes and gives effect to the concept of equality between the three wings of the state and the
concept of checks and balances inherent in such scheme.53 The real question is whether what remains is so
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inextricably bound up with the part declared invalid that what remains cannot independently survive or, as it has
sometimes been put, whether on a fair review of the whole matter it can be assumed that the legislature would have
enacted what survives without enacting that that is ultra vires at all.54 The correct test of severability is to ascertain
whether after the invalid portions of the statute in question are deleted, a different law is created.55 However, where
the question is one of severability which depends upon the intention of the legislature, the history of the legislation
is admissible to ascertain that intention. The statement of the objects and reasons being no part of the legislation is
inadmissible for this purpose.56 Where an enactment is unconstitutional in part, but valid as to the rest, assuming of
course that the two portions are severable, it cannot be held to have been wiped out of the statute book as it
admittedly must remain there for the purpose of enforcement of the valid portion thereof, and being on the statute
book, even that portion which is unenforceable on the ground of its being unconstitutional will operate propriovigore,
when the constitutional bar is removed; there is no need for a fresh legislation to give effect thereto.57
In Bank of Commerce Ltd v Amulya Krishna Basu,58 the Court had to consider whether the Bengal Money Lenders
Act, 1910, was ultra vires the competence of the Provincial Legislature, as it sought to legislate on promissory
notes, which was a subject under the Federal list. It was contended that as the provision was not an independent
and severable provision, but part and parcel of the scheme of the Act worked out on the basis of the general
definition of the term loan, the doctrine of severability of the valid from the invalid provisions could not be pressed
and that the whole enactment must therefore be held to be void. The Court repelled the contention, and held as
follows:
The question (of severability) will be material only if the Act is in some measure held to be ultra vires the Provincial
Legislature. Where the problem can only be one of conflict between the provisions of the local law and the provisions of a
central enactment, each being intra vires the particular Legislature, it is unnecessary to invoke the rule of severability to
uphold the validity of the impugned Act...
In Danial Latifi& Another v Union of India,59 the court held the Muslim Women (Protection of Rights on Divorce)
Act, 1986, constitutionally valid, while holding that the maintenance payable to a divorced wife under the Act was
not limited for the iddat period, but it extended for the entire life of divorced wife unless she remarries. Any other
interpretation of the Act would become less beneficial than the provisions under Section 125 of the Code of Criminal
Procedure, 1973, resulting in unreasonable discrimination, making the Act unconstitutional. The Court observed
that if on a rule of construction, a given statute would becomeultra vires or unconstitutional and therefore void,
whereas on another construction which is permissible, the statute remains effective and operative, the court would
prefer the latter on the ground that the legislature does not intend to enact unconstitutional laws. It is well-settled
that when by appropriate reading of an enactment the validity of an Act can be upheld, such interpretation is
accepted by the courts and not the other way round.
In Gopalan v State of Madras,60 it was observed that in case of repugnancy to the Constitution, only the repugnant
provision of the impugned Act will be void and not the whole of it, and every attempt should be made to save as
much as possible of the Act, if the omission of the repugnant provision will not change the nature of the structure or
the object of the legislation. It was held that all the provisions of the Preventive Detention Act, 1950, save Section
14, were valid, and since Section 14 was severable from the rest of the Act, the detention of the applicant under the
Act was not illegal.
The same principles were upheld in the case of State of Bombay v FN Balsara,61 where it was held that the
provisions of the Bombay Prohibition Act, 1950, that were declared invalid were not inextricably bound up with the
remaining provisions of the Act, and it was difficult to hold that the legislature would not have enacted the Act at all
without including that part which was found to be ultra vires. The Court observed that the legislature may exercise
its powers within its competence to the extent of a part of the legislation, and if those parts are severable, then the
court would only hold that a part of the legislation is ultra vires.62 But where the different parts of a statute are so
mutually connected with and dependent upon each other as to warrant a belief that the legislature intended them as
a whole, then if some parts are unconstitutional and void, all the provisions must fall with them.63 This test of
severability, would however, not be adequate in all cases. A safe test would be whether the statute, with the invalid
portion omitted, would be substantially a different law as to the subject-matter dealt with.64
In Punjab Province v Daulat Singh,65 the Privy Council found that the retrospective element in Section 13A of the
Alienation of Land Act and Section 5 of the Punjab Alienation of Land (Second Amendment) Act, 1938, were easily
severable, and by the deletion of the words either before or from the early part of Section 13A (1), enacted by
Section 5 of the impugned Act, the rest of the provisions of the impugned Act may be left to operate validly.
Presumption of constitutionality is applied even for the validating statutes. Thus in State of Bihar v Bihar Distillery,66
Page 7 of 10
certain deductions were to be made by the state government with respect to country liquor in Bihar and Orissa
Excise Act, 1915. The High Court has quashed the orders of the state government and the said judgment had
become final. Subsequently, a Validating Act of 1995 was enacted for fixation of cost price and order of any court.
The constitutionality of Validating Act was challenged on the ground of arbitrariness, vagueness and also on the
ground that the charge fixed therein does not appear to be justified. The court held that the validity of the validating
Act cannot be impeached on any ground. All that the Act does is to provide statutory basis and legislative
imprimatur to the price fixation done by the commissioner and its break-up. It also provides for recovery and
deduction of the 0.70 paisa component on account of maintenance charges of warehouses. It can neither be
suggested that the Bihar legislature did not have the legislative competence to enact the said amending Act nor can
it be suggested that the Act violates any of the fundamental rights enshrined in Part III of the Constitution.
1
. Narsing Das v Chogemull AIR 1939 Cal 435, p 444, (1939) ILR Cal 93, per Nasim Ali J; Atiqa Begum v Abdul Maghni
(1940) ILR All 456, AIR 1940 All 272, p 275; reversed in
United Provinces v Atiqa Begum 1940 FCR 110 on other points; Sutherland, Statutory Construction, vol 2, art 2409,
note 2; Butterfield v Stranaham 192 US 70; Gopala Krishnayya v State of Andhra Pradesh AIR 1959 AP 292 [LNIND
1958 AP 39], p 299; Express Newspapers Ltd v Union of India [1959] SCR 12 [LNIND 1958 SC 25], AIR 1958 SC 578
[LNIND 1958 SC 25], p 623; Jalan Trading Co Pvt Ltd v Mill Mazdoor Sabha AIR 1967 SC 691 [LNIND 1966 SC 146],
(1967) 1 SCJ 189; Lucknow Officials Co-op Hsg Societies v Registrar of Co-op Societies AIR 1967 All 305 [LNIND
1965 ALL 176]; Behampur Tapti Mills Ltd v State of Madhya Pradesh AIR 1962 MP 255, 1961 LLJ 1011; Waverly Jute
Mills Co Ltd v Raymond & Co (I) Pvt Ltd AIR 1963 SC 90 [LNIND 1962 SC 587]; where it was held that the
observations of the Supreme Court in Saghir Ahmed v State of Uttar Pradesh AIR 1954 SC 728 [LNIND 1954 SC
128]could not be read as negativing the presumption as to the constitutionality of a statute; Haji Islam Qureshi v
Director of Education, Uttar Pradesh 1978 ALR 70; Habibullah v Ghulam Ahmad 1979 Ker LJ 310; Ram Krishna Dalmia
v SR Tendolkar AIR 1958 SC 538 [LNIND 1958 SC 31].
2 . Gopal Narain v State of Madhya Pradesh 1979 Jab LJ 682.
3 . KedarNath v State of Bihar AIR 1962 SC 955 [LNIND 1962 SC 519], p 969; Ram Krit Singh v State of Bihar (1979) 27
BLJR 384; Rayala Corpn Pvt Ltd v Director of Enforcement AIR 1970 SC 494 [LNIND 1969 SC 219]; State of
Rajasthan v Mewar Sugar Mills Ltd AIR 1969 SC 880; Management of Advance Insurance Co Ltd v Gurudasmal AIR
1970 SC 1126 [LNIND 1970 SC 526]; Takhtray Shivadatrai v State of Gujarat AIR 1970 SC 143 [LNIND 1969 SC
158]; Krishna Coconut Co v East Godavari Coconut AIR 1967 SC 973 [LNIND 1966 SC 273]; Ashok Kumar Ghosh v
Union of India 1989 BLJR 300; All Saints High School v Govt of Andhra Pradesh AIR 1980 SC 1042 [LNIND 1980 SC
49]; Union of India v Tulsiram Patel AIR 1985 SC 1416 [LNIND 1985 SC 219].
4 . State of Kerala v MK Krishnan Nair (1987) 1 SCC 552, p 571.
5 . Krishna Coconut Co v East Godavari Coconut AIR 1967 SC 973 [LNIND 1966 SC 273].
6 . Tilkayat Sri Govindlalji v State of Rajasthan AIR 1963 SC 1638 [LNIND 1963 SC 8].
7 . Johri Mall v Director of Consolidation AIR 1967 SC 1568 [LNIND 1967 SC 95].
8 . State of Madhya Pradesh v Chotabhai Jethabhai (1972) 1 SCWR 109.
9 . B Banerjee v Anita Pan (1975) 1 SCC 166 [LNIND 1974 SC 376].
10 . State of Madhya Pradesh v Dadabhoys New Chirimiri Ponri Hill Colliery Co Pvt Ltd (1972) 1 SCC 298 [LNIND 1971
SC 606].
11 . RL Arora v State of Uttar Pradesh [1964] 6 SCR 784 [LNIND 1964 SC 31], p 797, per Wanchoo J; Kedar Nath Singh v
State of Bihar1962 (2) Supp SCR 769;Atmaram Budhia v State of Bihar AIR 1952 Pat 55, (1952) ILR 31 Pat 439;
Hardware v Glidden & Co 284 US 151, p 158, 76 L Ed 214, p 219.
12 . All Saints High School v Govt of Andhra Pradesh AIR 1980 SC 1042 [LNIND 1980 SC 49], (1980) 2 SCC 478 [LNIND
1980 SC 49], (1980) 2 SCJ 273, (1980) 1 Serv LR 716; RC Pandey v State of Madhya Pradesh AIR 1988 MP 60, 1987
Jab LJ 442, (1987) 13 Reports 448, 1987 MPLJ 486.
Page 8 of 10
13 . Miller v Commonwealth 1 CLR 1668, p 1674, per Griffith CJ.

14 . Charanjit Lal v Union of India AIR 1951 SC 41 [LNIND 1950 SC 55]; Mohd Hanif Qureshi v State of Bihar AIR 1958
SC 731 [LNIND 1958 SC 58], [1959] SCR 629 [LNIND 1958 SC 58]; Abdul Karim Thakur v State 1983 Kash LJ 296;
Udayan Narayanan Namboodri v State of Kerala (1988) 2 Ker LT 928.
15 . This was clearly enunciated in Middleton v Texas Power and Lights Co, 246 US 152, p 157; Pellock v Farmers Loan &
Trust Co158 US 609, p 621; CST, Madhya Pradesh v Radhakrishnan, (1979) 2 SCC 249 [LNIND 1978 SC 288]; Joshi v
Ajit Mills AIR 1977 SC 2279 [LNIND 1977 SC 260]; Isherdas v State AIR 1975 Punj 29; S Avtar Singh v State AIR
1977 J&K 4.
16 . Madan Gopal v Lachmidas AIR 1948 Cal 322, p 324; Golam Bari v State of West Bengal AIR 1954 Cal 248 [LNIND
1953 CAL 134]; State v Ratanlal AIR 1956 Ajm 52; Nusserwanji v State of Bombay AIR 1951 Bom 210 [LNIND 1950
BOM 61], p 317, per Chagla CJ:
However repugnant and legislation may be to the conception which the court has, of what is right or wrong and however
drastic provisions of such legislation may be, if it does not, in fact, contravene any of the articles of the Constitution
which lay down fundamental rights, then it would be the duty of the court to uphold such legislation.
Tata Engg& Locomotive Co Ltd v State of Bihar (1979) 27 BLJR 502, 1979 Pat LJR 398; Navinchandra A Shah v Modasa
Nagar Panchayat(1977) 18 Guj LR 762.
17 . Makku Rowthers Children v Manahapara AIR 1972 Ker 27, p 33, per VK Krishna Iyer J; New York v O Neill 3 L Ed 2d
585, p 589, per Frankfurter J; Navinchandra A Shah v Modasa Nagar Panchayat(1977) 18 Guj LR 762.
18 . Nazareth v Gift-tax Officer AIR 1962 Mys 269, p 274, per Hedge J.
19 . AIR 1958 SC 731 [LNIND 1958 SC 58], [1959] SCR 629 [LNIND 1958 SC 58]; Re Kerala Education Bill AIR 1958 SC
956, p 972; Express Newspapers Ltd v Union of India [1959] SCR 12 [LNIND 1958 SC 25], AIR 1958 SC 578 [LNIND
1958 SC 25], p 623; Gopala Krishnaya v State of Andhra Pradesh AIR 1959 AP 292 [LNIND 1958 AP 39], p 299; Moti
Das v Sahi AIR 1959 SC 942 [LNIND 1959 SC 51], p 947; Ramkrishna Dalmia v Tendolkar [1959] SCR 274, p 297;
Sukhdev Singh v Union Territory of Chandigarh AIR 1987 P&H 5; (1986) 90 Bom LR 109, (1986) ILR 2 P&H 231,
(1986) 2 Chand LR 348 (Cr), (1986) 2 Rec Cr R 261, (1986) 13 Cr LT 43, (1986) 2 Cur LJ 497 (Civ& Cr).
20 . Thangia v Hanuman Bank Ltd AIR 1958 Mad 403, p 408, per Ramaswami J; Gopala Krishnayya v State of Andhra
Pradesh AIR 1959 AP 292 [LNIND 1958 AP 39], p 299, per Chandra Reddy, officiating CJ; State of Madhya Pradesh v
Dadabhoy Colliery Co Ltd (1971) 1 SCC 298, p 307, per Shelat J; literal meaning would invalidate the notification; Tata
Engg& Locomotive Co Ltd v State of Bihar (1979) 27 BLJR 502, 1979 Pat LJR 398; Macleod scase [1891] AC 455;
Hewson v Ontario Power Co of Niagara Falls [1905] 36 SCR 596; Re Hindu Womens Rights to Property Act (Opinion)
1941 FCR 12, p 27; Deodat Rai v State AIR 1951 All 718 [LNIND 1951 ALL 51]; Sher Singh v State of Rajasthan AIR
1954 Raj 65 [LNIND 1953 RAJ 142].
21 . D Emden v Pedder 1 CLR 91, p 119; Federated Engine Drivers and Firemens Assn of Australia v Adelaide Chemical
and Fertiliser Co Ltd 28 CLR 1, p 14; Navinchandra A Shah v Modasa Nagar Panchayat(1977) 18 Guj LR 762.
22 . Macleod s case [1891] AC 455; Hewson v Ontario Power Co of Niagara Falls [1905] 36 SCR 596; Re Hindu Womens
Rights to Property Act (Opinion) 1941 FCR 12, p 27; Deodat Rai v State AIR 1951 All 718 [LNIND 1951 ALL 51].
23 . Macleod s case [1891] AC 455; Juswantsingh v Members of the Tribunals AIR 1957 Bom 182 [LNIND 1957 BOM 22],
p 185.
24 . Atma Ram Budhia v State of Bihar AIR 1952 Pat 359, (1952) ILR 31 Pat 493.
25 . AK Thangadurai v DFO, Madurai AIR 1985 Mad 104 [LNIND 1984 MAD 220].
26 . Re Kerala Education Bill AIR 1958 SC 956, p 981; Rashid Ahmad v Municipal Board Kairana [1950] SCR 566 [LNIND
1950 SC 24], p 571; Mohd Yasin v Town Area Committee, Jalalabad [1952] SCR 572 [LNIND 1952 SC 11], p 577;
State of Bombay v Bombay Education Society [1955] 1 SCR 568 [LNIND 1954 SC 108].
27 .Govindalalji Maharaj v State of Rajasthan AIR 1963 SC 1638 [LNIND 1963 SC 8].
28 .Karavir v State (1953) ILR 32 Pat 55.
29 .Gulam Nabijan v State AIR 1954 J&K 7.
30 . AIR 1952 Bom 16 [LNIND 1951 BOM 115], 52 Bom LR 837.
31 .H Shiva Rao v Cecilia Pereira AIR 1987 SC 248, (1987) 1 SCC 258.
32 .MG Wagh v Jay Engg Works Ltd (1987) 1 SCC 542 [LNIND 1987 SC 44].
Page 9 of 10
33 .DurgaParshad v Custodian, Evacuee Property AIR 1960 Punj 341, p 344: there is a rule of presumption against
absurdity which must be applied in the construction of statutes; Brahmananda Reddy v Members, Election Tribunal,
Hyderabad (1963) 2 Andh LT 138, (1963) 2 Andh WR 257.
34 .Yudhistir v Ashok Kumar (1987) 1 SCC 204 [LNIND 1986 SC 512]: since a liberal interpretation is likely to expose it to
successful challenge on the basis of art 14, not adopted; Winifred Ross v Ivy Foneseca AIR 1984 SC 458 [LNIND 1983
SC 367], (1984) 1 SCC 288 [LNIND 1983 SC 367], (1984) 1 Rent CR 117, (1984) 1 ARC 259, (1984) 86 Bomlr 178,
1984 Har Rent R 206, (1984) 1 Rent LR 418, (1984) 1 Bom LR 385, 1984 Mah LJ 411, 1984 Mah LR 383, (1984) 2
Rent LR 23, 1984 MPRCJ 107, 1984 UJ 860 (SC).
35 .AK Patel v Anand Municipality(1984) 1Guj LR 645 (Guj); Sukhdeo Singh v Union Territory AIR 1987 PH 5, 1986 Cr LJ
1957, (1986) 90 Punj LR 109, (1986) ILR 2 P&H 231, (1986) 2 Chand LR 348 (Cr), (1986) 2 Rec Cr R 261, (1986) 13
Cr LT 43 (FB).
36 .KanhayaLal Omar v RK Trivedi AIR 1986 SC 111 [LNIND 1985 SC 294].
37 . AIR 1954 Hyd 50, p 52; JankiNath Roy v State of Bihar AIR 1953 Pat 105.
38 . (2003) 10 SCC 533 [LNIND 2003 SC 703].
39 . The pertinent section reads as follows: No appeal under this section shall be entertained unless the consolidated rate
in respect of any land or building for the period ending on the date of presentation of the appeal on the valuation
determined under Section 188 has been deposited [In the office of the Corporation] and the appeal shall abate unless
such consolidated rate is continued to be deposited till the appeal is finally disposed of.
40 .NawabAriff v Corpn of Calcutta AIR 1960 Cal 159 [LNIND 1959 CAL 160], 162.
41 .Bankey v Jhingan AIR 1952 Pat 166.
42 .Ram Prasad Narayan Sahai v State of Bihar AIR 1953 SC 215 [LNIND 1953 SC 18], p 220.
43 . 165 U.S. 150.
44 .Gourishankar v Sales-tax Officer, Secunderabed AIR 1959 SC 883, p 885.
45 . AIR 1952 All 746 [LNIND 1952 ALL 100], 1952 ALJ 293, 1952 AWR 284 (HC).
46 .Surya Rao v Govt of Andhra Pradesh(1956) ILR AP 448.
47 . 2 L Ed 2d 302, p 316.
48 .Statutory Construction, third edn, art c 409.
49 .Construction of Statutes, 1946, p 216; quoted with approval in State v Philipose Philip AIR 1954 Tr&Coch 257: s 3,
Public Safety Measures Act 1950, declared void as a whole; See also SivaramaChoudhuri v Guntur DV Co-op Central
Bank (1966) 2 Andh LT 65, (1966) 2 Andh WR 382: a case under Co-operative Societies Act, where the invalid portion
alone was struck down.
50 . Severability and Separability Clauses in the Supreme Court (USA), vol 51, Harvard Law Review, pp 76, 128.
51 .Brahmananda Reddy v Member, Election Tribunal (1962) 2 Andh LT 138.
52 . [1957] SCR 930-32; KS Iyer v Bar Council AIR 1964 Mad 390 [LNIND 1963 MAD 95], p 394, per Ramchandraiyer CJ:
first two principles applied; Harakchand R Banthia v Union of India [1970] 1 SCR 479 [LNIND 1969 SC 199], p 505, per
Ramaswami J; Vacuum Oil Co Pvt Ltd v Queensland 51 CLR 677, p 691 and 92, per Dixon J.
53 .State of Bihar &Ors v Bihar Distillery Ltd &Ors (1997) 2 SCC 453 [LNIND 1996 SC 2869].
54 .Attorney-General for Alberta v Attorney-General for Canada [1947] AC 505 , p 518; followed in State of Bombay v
Balsara [1951] SCR 682 [LNIND 1951 SC 42], p 727; Gopalan v State [1950] SCR 88 [LNIND 1950 SC 22], p 131: if
the omission of the invalid part will not change the nature or the structure of the object of the legislature it is serverable.
55 .Abdul Rahim v Joseph A Pinto AIR 1951 Hyd 11.
56 .Jia Lal v Delhi Admn AIR 1962 SC 1781 [LNIND 1962 SC 213], 1962 All WR 765 (HC), 64 Punj LR 1051.
57 .MPV Sundaramier& Co v State of Andhra Pradesh AIR 1958 SC 468 [LNIND 1958 SC 20], 1958 SCJ 459 [LNIND
1958 SC 20], 1958 SCA 482, (1958) 1 Andh WR 179 (SC).
58 . AIR 1944 FC 18.
59 . (2001) 7 SCC 740 [LNIND 2001 SC 2181].
60 . AIR 1950 SC 27 [LNIND 1950 SC 22], [1950] SCR 88 [LNIND 1950 SC 22], p 131; KshitindraNarain Roy v Chief
Secretary, Govt of West Bengal Misc Case No 166 of 1950.
Page 10 of 10
61 . AIR 1951 SC 318 [LNIND 1951 SC 42], p 331, [1951] SCR 682 [LNIND 1951 SC 42], p 727.
62 .Emperor v Kishori Shetty AIR 1950 Bom 221 [LNIND 1949 BOM 121], 52 Bom LR 29; Kishori Lal Potdar v Devi
Prasad AIR 1950 Pat 50.
63 .Prahalad Gena v State AIR 1950 Ori 157 [LNIND 1950 ORI 56], (1950) ILR Cut 222; Kameshwar Singh v Province of
Bihar AIR 1950 Pat 392; Bhutnath v Province of Bihar AIR 1950 Pat 35, (1949) ILR 28 Pat 782; State v Philipose Philip
AIR 1954 Tr&Coch 257.
64 .New Motor Tpt Co v Regional Tpt Authority, Raipur AIR 1952 Nag 111, (1952) ILR Nag 69.
65 . AIR 1946 PC 66, 1946 FCR 1.
66 . (1997) 2 SCC 453 [LNIND 1996 SC 2869].
End of Document
Statutes are Territorial in Operation
NS Bindra
Presumptions
The ordinary principle of construction is that is legislature is dealing with the subject-matter situated within its own
territorial jurisdiction.67 They apply also to all foreigners within its territories (not privileged like sovereigns and
ambassadors) as regards criminal, police and, indeed, all others matters except some questions of personal
statutes or capacity, in which, by the comity of nations, the law of their own country or the lex loci actus or
contractus, applies. This does not, indeed, comprise the whole of the legitimate jurisdiction of a state; for it has the
right to impose its legislation on its subjects, natural or naturalized, in every part of the world. This also includes
matters as personal status or capacity, it is understood always to do so; but, with that exception, in the absence of
an intention clearly expressed or to be inferred, either from this language, or from the object or subject-matter or
history of the enactment, the presumption is, that the legislature does not design its statutes to operate on them
beyond the territorial limits of the state.68 The presumption is that, if the statute is silent on the point, the intention
of the legislature is to confine the operation of statute to the territorial limits of the state and also that it does not
include foreigners.69
Indian Legislatures
In India, prior to the coming into force of the Constitution, the position was that Section 99 (2) of the Government of
India Act, 1935, empowered the Federal Legislature to make laws for the whole or any part of British India and the
topics on which it could legislate were specified in Lists I and III of Schedule VII. Sub-section (2) of the section laid
down that without prejudice to the generality of the powers conferred by the preceding sub-section, no federal law
shall, on the ground that it would have extra-territorial operation, be deemed to be invalid, insofar as it applied to the
cases enumerated in Clauses (a)-(e). However, in Governor-General-in-Council v Raleigh investment Co Ltd70 it
was held that the Federal Legislatures power of extra-territorial legislation was not limited to the cases specified in
clauses (a)-(e) of sub-section (2), and this was apparent from Entry 23 of List I of Schedule VII relating to fishing
and fisheries beyond territorial waters.
The fetters were subsequently removed by Section 6 (1) of the India Independence Act, 1947, which was followed
by the Provisional Constitution Order, 1947, by virtue of which the words, including laws having extra-territorial
operation were inserted after the word law in Section 99 (1).
Parliament
The Indian parliament being a sovereign legislature, Article 245 (2) of the present Constitution lays down that no
law made by Parliament shall be deemed to be invalid on the ground that it would have extra-territorial operation.
State Legislatures in India
While the Union Parliament has power to make laws for the whole or any part of the territory of India, the state
legislature can make laws only for the state or any part thereof. The legislative power of the state is confined under
art. 245 (1) to the territory of the state. The state legislatures have no extra-territorial legislative powers.
In Abdul Khader v Union of India,71 it was held that a law passed by the legislature having plenary powers is not
ultra vires on the ground that it has extra-territorial operation. In that case, warrants for detention were issued under
Page 2 of 3
the COFEPOSA Act, 1974, after the alleged smugglers had fled the country. When a proclamation under Section 7
(1) (a) of the Act read with Section 82 (1) of the Code of Criminal Procedure, 1973, was issued, the same were
challenged as illegal andultra vires. The Court repelled this contention, and observed as follows:
The words extra-territorial are normally used in two different senses, as connoting firstly, laws in respect of acts and events
which take place inside the state but have operation outside; and secondly, laws with reference to nationals of a state in
respect of their acts outside. In its former sense, the laws are strictly speaking intra-territorial, though loosely termed as
extra-territorial under art. 245 (1). Therefore, merely because the law passed by the Parliament has extra-territorial
consequences, it cannot be invalidated as set out in art 245 (2) of the Constitution.
In the case of Mobarak Ali Ahmad v State of Bombay,72 a Pakistani national at Karachi made certain false and
dishonest representations by means of letters, telegrams and trunk telephone calls from Karachi to the complainant
at Bombay, who on the faith of such false representations, paid money to the Pakistani nationals agent at Bombay.
It was held that the accused residing outside India, can be prosecuted in India, because all the essentials of the
offence of cheating have occurred within this country, and that it was not necessary in every case that the accused
foreigner should be corporeally present within India at the time the offence was committed.
In Radhabai v State of Bombay,73 the question arose whether the Bombay Prevention of Bigamous Marriages Act,
1946, was ultra vires the state legislature because of its being made applicable to marriages contracted outside the
State of Bombay, either or both the contracting parties to which are domiciled in the state. It was held that there was
sufficient territorial connection between such marriages and the Bombay state which was provided by a party to the
marriage possessing the domicile of the Bombay state, and in enacting Section 4 (b), the legislature could not be
said to have exceeded the territorial limits of its powers. On a general question of law, a court could have a
precedent applicable to one portion of its territorial jurisdiction and a different precedent on the identical question
applicable to the remaining portion of its territorial jurisdiction.74
Whatever may be the weight of extra-territorial legislation in international law, municipal courts of the state enacting
the law are bound to follow it. The validity of such laws would have to be judged and determined, so far as
municipal courts are concerned, by the same principles and standards which govern other statutes regardless of
any law of the nations. The recognition is not dependent upon the question of such law being capable of execution.
The enforcement of a law is altogether different from its operation. Thus, for instance, an offender may be tried in
the state where the offence is committed only when he is found there.75 The prima facie presumption may be
displaced by clear intention to extend the legislation to extra-territorial limits and in that case, if the legislature is
sovereign, then the courts within the jurisdiction are bound by such law.76
67 .Chhanubhai v Sardul AIR 1957 Bom 99 [LNIND 1956 BOM 34], p 100, per Chagla CJ; Janardhana Shetty v Union of
India AIR 1970 Mys 171, p 176, per Chandrashekahar J; Treacy v Director of Public Prosecutions [1971] 1 All ER 110,
p 113, per Lord Morris applies only to UK.
68 .Bannerjees Tagore Law Lectures, 1901, 1909 edn, pp 184 and 85, quoting from Maxwell, Interpretation of Statutes,
eleventh edn, pp 138 and 42.
69 . Odgers, Construction of Deeds and Statutes, 1946, p 274.
70 . AIR 1944 FC 51.
71 . [1977] 90 LW 501.
72 . AIR 1957 SC 857 [LNIND 1957 SC 81].
73 . AIR 1955 Bom 439 [LNIND 1955 BOM 45].
74 .Padmanabha v Velayudhan AIR 1957 Tr&Coch 32, p 38.
75 . Subject, however, to extradition agreements,

Page 3 of 3
76 .R v Earl Russel [1901] AC 446; Merchant Service Guild of Australia v Commonwealth Steamship Owners Assn (1913)
16 CLR 664, p 689; Delaney v Great Western Milling Co 22 CLR 173.
End of Document
Statutes are Presumed to be in Conformity with International Law
NS Bindra
Presumptions
Under the same general presumption that the legislature does not intend to exceed its jurisdiction, every statute is
to be so interpreted and applied, as far as its language admits, as not to be inconsistent with the comity of nations
or with the established rules of international law. If, therefore, it designs to effectuate any such object, it must
express its intention with irresistible clearness to 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. All general terms
must be narrowed in construction to avoid it.77
Legislature Presumed not to Enact Contrary to International Law
According to recognised rules of construction of statutes, the legislature is presumed not to enact anything contrary
to international law or the common law of the realm. Unless, therefore, the intention to do so is clearly expressed in
the enactment, the courts would be inclined to favour an interpretation which would bring the enactment into
consonance with those principles rather than accept a grammatical interpretation, the result of which would be
startling or unusual.78 The judges may not pronounce an Act ultra vires as contravening international law, but may
recoil, in case of ambiguity, from a construction which would involve a breach of the ascertained and accepted rules
of international law.79
In Lee v Lee,80 in construing provisions of the Indian Divorce Act, 1869, the Court held:
A statute must be construed with due regard to its subjects-matter and object, and the object of this Act is to provide for the
Government of India by laws binding upon persons and things in India. As between two possible constructions, that which
is conformable to international low as declared in our own tribunals is to he preferred to that which would involve
infringement of the rights of other communities.
In PUCL v Union of India,81 the Supreme Court was required to interpret Section 3 (2) (d) of the Protection of
Human Rights Act, 1993, which stipulated that the Human Rights Commission ought to consist of two members to
be appointed from amongst persons havingknowledge of, or practical experience in, matters relating to human
rights. The question before the court was whether a police officer would fall in the category stipulated under this
provision and was the appointment of such a person consistent with the language of the section and the true
intendment of the Act. To this end, reference was made to the Paris Principles on the establishment of human rights
institutions adopted by THE UNITED NATIONS in 1991.These principles encouraged human rights institutions to
have as little governmental interference as possible. In the wake of this reliance, the judges made the following
different observations on the applicability of international norms, as given below.
Sabharwal J. was of the opinion that the Paris Principles must not be derogated from and consequently the
appointment should not be allowed. He observed that international treaties have influenced interpretation of Indian
law in several ways. The Supreme Court has relied upon them for statutory interpretation. Where the terms of any
legislation are not clear or are reasonably capable of more than one meaning, in such cases, the courts have relied
upon the meaning which is in consonance with the treaties, for there is a prima facie presumption that Parliament
did not intend to act in breach of international law, including treaty obligations. In this view, Section 3 (2)(d) of the
Act has to be read keeping in view Paris Principles.
Page 2 of 5
Dharmadhikari J. on the other hand observed that the court needed to take aid of international law and guidelines in
interpreting the domestic law only if it found some gap to be filled in such law or if the provisions of domestic law
were not clear and did not wholly carry the meaning and effect of the international law which it intends to implement.
The Paris Principles he opined were at best guidelines to be followed by countries who were parties to the
resolutions taken at the international conferences on human rights. Such acceptance did not create an obligation to
incorporate the Principles word by word in statutory law. In his opinion, the impugned provision of the Human Rights
Act was clear and unambiguous and therefore there was no need to place reliance on principles of international
law.
Since the two judges were not in agreement the matter was referred to a bench of three judges82 who ruled that
neither the Paris Principles nor the subsequent U.N. General Assembly Resolution can be exalted to the status of a
covenant in international law. Therefore merely because India is a party to these documents does not cast any
binding legal obligation on it. They further pointed out that the cases on which Justice Sabharwal had relied upon
addressed the obligations of the State after it became party to a covenant or treaty. A Declaration in an international
forum or a UN General Assembly Resolution did not enjoy such a status.
The Supreme Court in Umesh Chandra v State of Rajasthan,83 held that the relevant date for determining the age
of the accused who claims to be a child is the date of occurrence and not the date of trial. However, in Arnit Das v
State of Bihar,84 it laid down that the relevant date for the said purpose would not be the date of occurrence but the
date of production of accused before the court. Since there was a conflict of opinion the matter was referred to the
Constitution bench.85 The Constitutional bench ruled that the relevant date was the date of occurrence of the
offence and not the date of production before the court. In arriving at this conclusion the court took note of the fact
that the Juvenile Justice Act, 2000, specially referred to international law. The relevant provisions of THE UNITED
NATIONS Standard Minimum Rules for Administration of Juvenile Justice, 1985, were incorporated therein.
Although international treaties, covenants and conventions may not be a part of our municipal law, insofar as India
was a party to the said treaties the same could be referred to and followed by the courts. The Constitution of India
and other ongoing statutes have been read consistently with the rules of international law. In fact courts could also
draw on provisions of international law to develop new rights in the context of the Constitution. Constitution is a
source of, and not an exercise of legislative power. Ordinarily the principles of international law are implied into
every statutory effort. The instant case made for a stronger obligation as the legislature explicitly bound itself to the
principles of international law. In rejecting the argument of the state that the relevant date for the determination of
age would be the date of production, the court observed that Act was not just a beneficial legislation, but a remedial
one. The Act aims to grant of care, protection and rehabilitation of juvenile vis-a-vis the adult criminals in
accordance with THE UNITED NATIONS Standard Minimum Rules for the Administration of Juvenile Justice. Even
as these recent decisions86 of the Supreme Court do demonstrate the significance accorded to principles of
international law, Dharmadhikari J.s opinion in the PUCL decision shows how even at the level of the apex court
there is a difference of opinion on the weight to be accorded to this presumption. Also the force of the presumption
is influenced by the competing presumption which states that municipal courts are bound by enacted law. It could
well be that the expanding reach of international law and the lessening assertions on state sovereignty may expand
the reach of this presumption over the binding nature of municipal law. The cases in the next section illustrate the
force of the presumption that courts are bound by municipal law in its traditional vigour.
Municipal Courts Bound by Enacted Law
Legislation of a state, even in contravention of generally acknowledged principles of international law, is binding
upon and must be enforced by the courts of the state.87 Lindley LJ. observed in Re Queensland Mercantile and
Agency Ltd:88
It is all very well to say that international law is one and indivisible, but it is notorious that different views are entertained in
different civilized countries on many questions of international law, and when international law is administered by a
municipal court, it is administered as part of the law of the country.
In Indrajit Singhji v Rajendra Singhji,89 the Bombay High Court was called upon to interpret Section 86 of the Code
of Civil Procedure, 1908. Section 86 gave certain to rulers of a foreign State from being sued in any Court otherwise
competent to try the suit except with the consent of the Central Government. It was argued that the provision ought
Page 3 of 5
to be interpreted in accordance with international law, under which the ruler of a foreign State was granted full
immunity from legal proceedings. Chagla, CJ repelled this contention by opining as follows:
These observations seem to imply that the legal proceeding must be such as to involve a process against the person of the
Foreign Sovereign or it must seek to recover from him specific property or damages. But whatever the principles of
international law may be, we are concerned with the statutory form that it has taken in our country. In the very forefront we
notice that there is an important departure from the rule of international law because in India a ruler of a foreign state can
be sued with the consent of the Central Government. Further, in England, a foreign ruler can waive the privilege of being
sued. The Privy Council has held that the consent required under Section 86 of CPC cannot be waived and, therefore, it
would not be treading on safe ground to inquire what is the principle of international law and to construe Section 86 in the
light of that principle. If the language of Section 86 permitted such a construction, perhaps it would not be objectionable to
consider rules of international law because our country is also in the comity of nations, and there is no reason why we
should not, as much as other countries, give effect to well-settled principles of international law. But if the language of the
section is clear and is capable of any one construction in the context in which that language is used, then, in our opinion, it
would be an unjustifiable attempt on the part of the court to engraft upon the statutory provision a principle of international
law which the legislature itself did not think it proper to do.
In Krishna Sharma v State of West Bengal,90 the Court was considering the Anglo-Tibet Trade Regulations, 1914,
and the apparent repugnance between the implied provisions of the Regulation permitting free trade between two
countries and subsequent Indian statutes such as the Essential Supplies Act, 1946, and the Imports and Exports
(Control) Acts of 1945 and 1947 that put restrictions on such free trade. To resolve the conflict, the Court relied on
the relationship between municipal and international law to hold that the Indian statutes would prevail over the
Regulations of 1914. In this regard, the Court observed:
The general principle is that though municipal courts are competent to inquire into matters involving the construction of
treaties and other Acts of state, treaty obligations cannot be enforced in courts. Assuming that according to the Anglo-Tibet
Trade Regulations 1914, articles for free trade not specially referred to in clause 8 was permitted, it does not appear that so
far as Indian citizens are concerned, it received statutory recognition and became a part of the municipal law of India...In
the national interest, they seek to put restrictions in the way of trade between India and other countries. If that language be
in conflict with any principle of international law as is said to be deducible from the implied provisions of the Anglo-Tibet
Trade Regulations of 1914, municipal courts of India have to obey the law passed by the legislature of the country to which
they owe their allegiance. In interpreting and applying municipal law, these courts will try to adopt such a construction as
will not bring it into conflict with rights and obligations deducible from rules of international law. If such rules, or rights, and
obligation are inconsistent with the positive regulation of municipal law, municipal courts cannot override the latter...The
primary rule is that a treaty has to be liberally construed so as to carry on the intention of the contracting parties thereto. In
the interpretation of international agreements, it is often necessary to adopt a more liberal method of construction than that
which might be fairly applied in the case of private instruments.
The general principle of international law is that every person who is found within a foreign state is subject to, and is
punishable, by its law.91 Territorial jurisdiction attaches (with special exceptions) upon all persons either
permanently or temporarily resident within the territory, while they are within it; but it does not follow them after they
have withdrawn from it, and when they are living in another independent country. It exists always as to land within
the territory, and it may be exercised over movables within the territory, and in questions of statutes or succession
governed by domicile, it may exist as to persons domiciled, or who when living were domiciled, within the territory.
As between different provinces under one sovereignty, the legislation of the sovereign may distribute and regulate
jurisdiction; but 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.92
In Jolly George Verghese v Bank of Cochin,93 Order XXI, Rule 37 and Section 51 were to be considered. It was
contended by the appellant that a court warrant for arrest and detention in the civil prison under the aforementioned
provisions was an illegal deprivation of liberty that violated the mandate of international law. The Court invoked
Article 11 of the International Covenant on Civil and Political Rights that banned imprisonment
merely for not discharging a decree debt. The Court eventually remitted the matter to the court for de novo
consideration, but delivered the following observations:
Page 4 of 5
From the national point of view the national rules alone count (. With regard to interpretation, however, it is a principle
generally recognised in national legal system that, in the event of doubt, the national rule is to be interpreted in accordance
with the States international obligations (The positive commitment of the States Parties ignites legislative action at home
but does not automatically make the Covenant an enforceable part of the corpus juris of India...It follows that quondom
affluence and current indigence without intervening dishonesty or bad faith in liquidating his liability can be consistent with
Article 11 of the Covenant, because then no detention is permissible under Section 51, CPC.
In KubicDarusz v Union of India,1 the Court was considering the detention of a Polish national under the Customs
Act and the COFEPOSA Act, 1974. The appellant argued that the representation submitted by him was not
considered, acted upon or replied to at all by the detaining authority, due to which the detention order was liable to
be quashed as violative of Article 22 (5) of the Constitution of India. The Court agreed with this submission of the
appellant, and set the appellant free. In this regard, the Court observed:
Preventive detention of a foreign national who is not resident of the country involves an element of international law and
human rights and the appropriate authorities ought not to be seen to have been oblivious of its international obligations in
this regard. The universal declaration of human rights include the right to life, liberty and security of person, freedom from
arbitrary arrest and detention; the right to fair trial by an independent and impartial tribunal; and the right to presume to be
an innocent man until proved guilty. When an act of preventive detention involves a foreign national, though from the
national point of view the municipal law alone counts in its application and interpretation, it is generally a recognised
principle in national legal system that in the event of doubt the national rule is to be interpreted in accordance with the
States international obligations...There may, therefore, be cases where while a citizen and resident of the country deserves
preventive detention apart from criminal prosecution, in case of a foreign national not resident of the country he may not be
justifiably subjected to preventive detention in the event of which no international legal assistance is possible unlike is case
of criminal prosecution and punishment. Considering the facts and circumstances of the instant case, however, we find
sufficient evidence of the detenu having visited this country though on earlier occasions he was not found to have been
carrying on such smuggling activities.
As regards other countries, FA Mann summarises the attitude of the courts in his article, thus:2
In the first place almost everywhere the municipal rules of statutory interpretation are so much more liberal and flexible than
in England that at the outset they permit methods of construction which really conform to the particular requirements of
uniform legislation; this is notoriously so on the continent where precedents have persuasive as opposed to binding
authority, where the historical methods of interpretation is freely resorted to and where the intention and object of legislation
is of far greater weight than its language and even in the United States the rigidity of the common law has of late been
greatly alleviated. Secondly, the constitutional methods of transforming treaties into municipal law are in most countries
such that the character of treaties is preserved. They are not usually given the form of statutes in the ordinary sense of the
words. Thirdly, many countries have developed specific theories relating to the interpretation of uniform legislation, and
these have undoubtedly contributed to an understanding.
77 . Maxwell, Interpretation of Statutes, twelfth edn, p 183; quoted by Bannerjee, Interpretation of Deeds, Wills and
Statutes, 1909, p 187; MohdMohyuddin v Emperor 1946 FCR 94, p 105, per Davis CJ; called it in aid in Allen v Allen
AIR 1945 Sind 171-72 (SB), (1946) ILR Kant 1: there is indeed a presumption against any intention to frame a statute
so as to contravene a rule of international law; Craies, Statute Law, fourth edn, p 393.
78 .Hatimbhai v Framroz AIR 1927 Bom 278, p 337, (1927) ILR 51 Bom 516, per Mirza J.
79 . Craies, Statute Law, fifth edn, p 67; Rochefoucauld v Boustead [1896] 66 LJ Ch 75; Odgers, Construction of Deeds
and Statutes, second edn, 1946, p 277; Venkataluchmi Ammal v Srirangapatnam Srinivasamurthy 11 MLJ 91; St
Gobain Chauny Cerey Co v Hoyermanns Agency [1893] 2 QB 96.
80 . (1924) ILR 5 Lah 147, 166, per Shadi Lal CJ:

Every statute is to be interpreted and applied, as far as its language admits as not to be inconsistent with the comity of
nations or with the establish principles or international law.
Page 5 of 5
Bloxam v Favre [1883] 8 PD 101, 104; [1884] 9 PD 130.
81 . (2005) 2 SCC 436 [LNIND 2005 SC 53].
82 . PUCL v Union of India, AIR 2005 SC 2419 [LNIND 2005 SC 53], 119 (2005) DLT 401 (SC), JT 2005 (5) SC 28,
(2005) 5 SCC 363, 2005 (2) UJ 993, (2005) 2 UPLBEC 1987.
83 . (1982) 2 SCC 202 [LNIND 1982 SC 80].
84 . (2000) 5 SCC 488 [LNIND 2000 SC 859].
85 .Pratap Singh v State of Jharkhand (2005) 3 SCC 551 [LNIND 2005 SC 100].
86 .PUCL v Union of India (2005) 2 SCC 436 [LNIND 2005 SC 53]; Pratap Singh v State of Jharkhand, (2005) 3 SCC 551
[LNIND 2005 SC 100].
87 .Croft v Dunphy AIR 1933 PC 16, p 18.
88 . [1892] 1 Ch 219, 226.
89 . AIR 1956 Bom 45 [LNIND 1955 BOM 32].
90 . AIR 1954 Cal 591, p 593.
91 .Adams v Emperor (1903) ILR 26 Mad 607, pp 617 and 621; De Jager v AG for Trial [1907] AC 326.
92 .Narain Singh v Raja of Faridkote (1895) ILR 22 Cal 222, p 238 (PC), per Lord Selborne.
93 . (1980) 2 SCC 360 [LNIND 1980 SC 48].
1 . AIR 1990 SC 605 [LNIND 1990 SC 25]: (1990) 1 SCC 568 [LNIND 1990 SC 25].
2 . The Interpretation of Uniform Statutes, Quarterly Law Review, vol 62, pp 278 and 291.
End of Document
Legislature does not commit a Mistake
NS Bindra
Presumptions
The legislature is a proverbial good writer in its own field, no matter that august body is subject to periodic criticism.
It is not competent for the court to proceed on the assumption that the legislature knows not what it says, or that it
has made a mistake.3 We cannot assume a mistake in an Act of parliament. If we think so, we should render many
Acts uncertain by putting different constructions on them according to our individual conjectures. The draftsman of
the Act may have made a mistake. If so, the remedy is for the legislature to amend it. The legislature is presumed
not to have made a mistake even if there is some defect in the language used by the legislature, it is not for the
court to add to or amend the language, or by construction make up deficiencies which are left in the Act. Even
where there is a casus omissus, the remedy lies not with the court, but with the legislature.4 There is a sort of
assumption that the legislature is an ideal person which does not make mistakes, but assumption sometimes has its
own limitations. It is too much to expect that legislation drawn up in haste to bring about changes in law in a large
part of the territory of India in a short time, the legislative authorities had devoted the same care and attention in
drafting such enactments as would have been necessary and desirable. It would not be proper to construe such
emergency legislation with the same amount of strictness that is accorded in construing statutes which have come
out after considerable thought and attention on the part of the legislature.5 Mistakes may creep into legislation due
to various circumstances and causes. They may be caused by the printer making an incorrect reproduction of the
draftsmans manuscript, or they may be due to the draftsmans unskilfullness. They may also creep into a Bill during
its passage through the legislature. Lord Halsbury opined in Commissioner for Special Purposes of Income-Tax v
Pemsel:6
I do not think it is competent to any court to proceed upon the assumption that the legislature has made a mistake.
Whatever the real fact may be, I think a court of law is bound to proceed upon the assumption that the legislature is an ideal
person that does not make mistakes. It must be assumed that it had intended what it has said, and I think any other view of
the mode in which one must approach the interpretation of a statute, would give authority for an interpretation of the
language of an Act of Parliament which would be attended with the most serious consequence.
In Madho Singh v James Skinner,7 the Court was considering the Punjab Alienation Land Act, 1900. The Act stated
that permanent alienations of agricultural land by members of certain notified agricultural tribes to persons not
belonging to the same tribe or of a tribe in the same group was prohibited except in certain cases.
Section 298, Government of India Act 1935, provided:
No subject of His Majesty domiciled in India shall on grounds only of religion, place of birth, descent, colour or any of
them...be prohibited on any such ground from acquiring, holding or disposing of property.
Nothing in this section shall affect the operation of any law which prohibits...the sale or mortgage of agricultural land
situated in any particular area, and owned by a person belonging to some class recognised by the law as being a class of
persons engaged in or connected with agriculture in that area, to any person not belonging to any such class. The Court
had to consider the effect of the exception.
The Court observed that the exception clearly referred to the 1900 Act, which was the principal Act introducing such
a prohibition in the concerned Province. This exception exempted from the operation of the prohibition only so much
of the existing law as prohibited sale or mortgage of agricultural land; the exemption did not extend to exchanges,
gifts, wills or grants of occupancy rights which were included in the enlarged definition of permanent alienation as
Page 2 of 3
given in the 1990 Act. Hence, in the opinion of the Court, the effect of the provision in the Government of India Act
1935 was that on and a person belonging to a notified agricultural tribe, was free to exchange, gift of bequeath
agricultural land or grand occupancy rights in it to a person who did not belong to any of the agricultural tribes in the
same group.
The counsel for the appellant urged that it could not have been the intention of Parliament to keep laws such as the
1900 Act intact with regard to form of alienations only and to repeal them as regards others. He maintained that no
reason existed for this distinction and suggested that the omission of exchange, gift, will, or lease in Section 298 of
the 1935 Act was probably a mistake. However, the Court did not agree with him and rejected the contention.
In Abdulla v Mohangir,8 the Court was considering Section 22 of the Indian Councils Act, 1861. The relevant
portion of the provision read as follows: The Governor-General-in-Council shall have...to make laws (operative) in
the Indian territories now under the dominion of Her Majesty.... There were subsequent Acts of the Imperial
Parliament which did not interfere with any of the numerous legislative enactments of the Governor-General-in-
Council which were passed between 1867 and 1886, inclusive in relation to Indian territories which were not on 1
August, 1861, the dominion of Her Majesty and which since 1 August, 1861, has been acquired by conquest or
cession. A question arose in as to whether Act 17 of 1886 passed by the Governor-General-in-Council was intra
vires as relating to territory acquired after 1 August, 1861. The judges of the Allahabad High Court unanimously
observed in the Full Bench:
Even if the interpretation which has been put by the Imperial Parliament on section 22 of the Indian Councils Act 1861, was
erroneous, we are of opinion that that interpretation has been so declared by the Imperial Parliament as to make it
obligatory upon us to adopt it in this case...Whether the word now was intentionally or by inadvertence introduced into
Section 22 of the Indian Councils Act 1861, it is difficult to say. To hold that the Governor-General-in-Council has no power
to legislate except in respect of Indian territories which were on 1 August 1861, under the dominion of Her Majesty,
would...lead to anomalous results which the imperial legislature must have foreseen and could not have intended.
Correction of Mistakes when Permissible
A court of law is no doubt not authorised to supply a casus omissus; or to alter the language of a statute for the
purpose of supplying a meaning, even though they may be of opinion that a mistake has occurred in drawing up the
Act. But it is an equally recognised principle of interpretation that where the main object and intention of a statute
are clear, it must not be reduced to a nullity by the draftsmens unskillfulness or ignorance of the law except in case
of necessary or the absolute intractability of the language used.9 On this principle, words in a statute may be
added, altered or even rejected according to the requirements of the case.10
Misstatement of Law
When the existing law is shown to be different from that which the legislature supposed it to be, the implication
arising from the statute cannot operate as a negation of its existence. Similarly, the recital in an Act that an earlier
Act was a temporary Act can only be held to be inaccurate.11
Burden of Proving Mistake of Legislature
A rule of law enunciated in an Act is very strong evidence of what the law on the subject actually is, but though the
court is not absolutely bound by its recital, the burden of proving that the legislature has fallen into a mistake is cast
upon those who say so.12
3 .Harendra Nath v Sailendra Krishan Saha AIR 1967 Cal 185 [LNIND 1966 CAL 168], p 188, per Bijayesh Mukherji J;
quotes Commr for Special Purposes v Pemsel [1891] AC 531, p 549, per Lord Halsbury; Sawan Ram v Guman Singh
AIR 1959 HP 25 [LNIND 1959 HP 1]-26, per Ramabhardan J; Ramananta v Judge, Commerce Court AIR 1966 Goa 1,
p 9, per Jetley JC; President promulgating regulation: State of Rajasthan v Rao Takhat Singh 1973 Raj LW 23, per Beri
J.
Page 3 of 3
4 .Nalinakha Bysak v Shyam Sunder Haldar AIR 1953 SC 148 [LNIND 1953 SC 11]; Nehru Motor Tpt Corpn Society Ltd
v Dy Registrar, Co-op Societies 1977 RLW 136.
5 .Govt of Rajasthan v Sangram Singh AIR 1962 Raj 43 [LNIND 1961 RAJ 58], p 51, per Bhandari J.
6 . [1891] AC 531, p 548; it is our duty neither to add nor to take from a statute unless we seed good grounds for thinking
that the legislature intended something which it has failed precisely to express: Tindal CJ in Everett v Wells[1841] 10 LJ
CP 81, p 84.
7 . AIR 1942 Lah 243, p 251.
8 . (1889) ILR 11 All 491, pp 502-04.
9 .Salmon v Duncombe [1886] 11 AC 627; R v Vasey [1905] 2 KB 748; R v Ettridge [1909] 2 KB 24.
10 .Laird v Briggs [1881] 19 Ch D 22, 33: word convenient in s 8, Prescription Act 1832, ignored as being absurd in the
context; Lyde v Barnard[1836] 1 M&W 101, pp 115 and 143: in s 6, Lord Tenterdens Act, the word credit or the words
such representations after the word upon was held to be necessary to make sense; Green v Wood [1845] 7 QB 178
: the words or execution issued in s 2, Warrants of Attorney Act 1822, were substituted by the words and execution
levied.
11 .Houghton v Fear Bros Ltd [1913] 1 KB 343 , p 352, per Pickford J as pointed out:
The draftsman was under an erroneous impression that the whole Act would expire at the end of seven years and acting
upon that view he drafted the section so as to continue all the provisions of the earlier Act for a further period of seven
years.
12 .R v Treasury [1851] 20 LJQB 305, p 311, per Lord Campbell.
End of Document
Legislature does not Waste its Words
NS Bindra
Presumptions
The Legislature is deemed not to waste its words or to say anything in vain.13 The presumption is always against
superfluity in a statute.14 An Act should be construed as to avoid redundancy or surplusage.15 It is no doubt true
that as a general rule legislatures may be presumed not to make a superfluous provision. But this presumption is
not a strong presumption and it is not uncommon to find the legislature inserting superfluous provision under the
influence of what may be abundant caution.16 In short, a court should not be prompt to ascribe, and should not
without necessity or sound reason, impute to the language of a statute tautology or superfluity.17 Where the law
provides a remedy to a person, the provision has to be so construed in case of ambiguity as to make the availing of
the remedy practical and the exercise of the power conferred on the authority as meaningful and effective. A
construction which would render the provision nugatory ought to be avoided. No word should be regarded as
superfluous unless it is not possible to give a proper interpretation to the enactment, or the meaning given is absurd
or inequitable. A court should not be prompt to ascribe and indeed should not, without necessity or some sound
reason, impute to the language of a statute, tautology or superfluity. In other words, although surplusage of even
tautology is not an uncommon feature in legislature enactments, the ordinary rule is that a statute is never
supposed to use words without a meaning.18 It is a well-settled principle of construction that words in a statute are
designedly used, and an interpretation must be avoided, which would render the provision either nugatory or part
thereof otiose.19 In King v Berchet,20 a case decided in 1688, it was said that it is a well-known rule in the
interpretation of statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall
prove superfluous, void or insignificant, if by any other construction, they may all be made useful and pertinent. No
part of a provision of a statute can be just ignored by saying that the legislature enacted the same not knowing what
it was saying. We must assume that the legislature deliberately used that expression and it intended to convey
some meaning thereby.21 Law should be interpreted so as not to make any word redundant, if it is possible to
interpret it so as to utilise the meanings of all words used in the legislation.22
In D Saibabav Bar Council of India,23 the Court had to consider the commencement of the limitation period for filing
a review petition under the Advocates Act, 1961. The Court held that the date of that order occurring in s 48-AA of
the Act could not be considered as surplusage, and it had to be construed as meaning the date of communication
or knowledge of the order to the review petitioner.
In re Mall Ramaiah,24 the Court had to consider the ambit of Section 27 of the Indian Evidence Act, 1872. Section
27 read as follows: Provided that, when any fact is deposed to as discovered in consequence of information
received from a person accused of any offence, in the custody of a police officer, so much of such information,
whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. The
question before the Court was whether evidence provided by a person who was not an accused could be used
under this provision, and whether the expression accused of any offence could be disregarded. The Court held that
effect ought to be given to every part of the section in an enactment. It should not be assumed that the legislature
used language without any purpose. Hence, deferring to the complete language of Section 27, the Court held that
when the person giving the information leading to the discovery of certain facts relating to a crime under
investigation was not an accused at the time he offered the information, his statement could not be used as
evidence as it did not come within the meaning of Section 27.
In M Ahmedkutty Haji v Tahsildar, Kozhikode,25 the Kerala Building Tax Act, 1975, empowered the local authority
to fix the capital value of buildings in its jurisdiction. It also provided for circumstances in which the assessing
Page 2 of 3
authority could either alter or fix afresh the capital value of buildings. The appellant paid the capital value on a
shopping complex on the basis of assumed rental value. Later the local authority fixed the capital value of the
complex which was appreciably higher than the assumed rental value. It was contended before the court that the
power of the assessing authority to fix capital value was not limited to the circumstances specified in the statutory
provision. Rejecting this contention, the apex court held that a Court of law cannot rewrite a statutory provision. The
interpretation sought to be suggested by the appellant virtually deprives the local authority of the statutory power to
determine capital value of a building situate within the jurisdiction of such local authority. A statute has to be read as
a whole and its provision must be interpreted without making the other provisions redundant. An interpretation that
results in the redundancy should be avoided.
In Sankar Ram and Co v Kasinaicker,26 the proviso to Section 55 of the Provincial Insolvency Act, 1920,
savedbona fide transactions made after the presentation of the insolvency petition but before the adjudication order.
Section 28 (7) of the Act provided that an order of adjudication would relate back and take effect from the date of
the presentation of the petition on which it is made. Due to the requirement of relating back, both the district court
and the High Court ruled that after the filing of an insolvency petition, even a bona fide purchaser would not
possess the protection of Section 55 of the Act. The Supreme Court disagreed with the High Court in as much as it
held that the protection of Section 55 was not available to the appellant even on satisfying the requirements of
Section 55, as that would render Section 55 redundant or superfluous.
The Court held:
If the intention of the proviso to Section 55 of the Insolvency Act was not to protect even a bona fide transferee for valuable
consideration without notice of presentation of insolvency petition, before an order of adjudication was made, the legislature
could have simply said that any transaction taking place after the date of presentation of any insolvency petition by or
against the debtor instead of qualifying the transaction that takes place before the date of the order of adjudication. In this
situation, the said proviso which is intended to serve a definite purpose should be given full meaning and effect. It is not
possible to ignore a part of the provision, namely, any such transaction takes place before the date of the order of
adjudication. It stands to reason as well that a bona fide transferee for valuable consideration without the knowledge of the
presentation of insolvency petition on the date of transfer of property is to be protected.
Construction Consistent with Smooth Working of System
Lord Hewart CJ. observed in Spillers Ltd. v Cardiff Borough Assessment Committee:27
It ought to be the rule and we are glad to think that it is the rule that words are used in an Act of Parliament correctly and
exactly and not loosely and inexactly. Upon those who assert that that rule has been broken, the burden of establishing
their proposition lies heavily. And they can discharge it only by pointing to something in the context which goes to show that
the loose and inexact meaning must be preferred.
In Naresh Chandra Bose v Sachindra Nath Deb,28 the Court was called upon to interpret Article 373 of the
Constitution. The opening phrase of Article 373 of the Constitution of India read as follows:Notwithstanding any
repeal by this Constitution of the enactments referred to in Article 395, but subject to the other provisions of this
Constitution... The question before the Court was whether Article 373 saved the Indian Independence Act, 1947, or
not. The Court held that the first statement was incorporated to ensure that Article 395s repeal of certain provisions
of the 1947 Act ought not to impact the continuity of other provisions. Hence, to give full effect to the
aforementioned phrase, those portions not included in Article 395 ought to be considered to be in force.
When there is a new enactment establishing a new body of law, it is desirable to give effect, if possible, to every
provision and every word, so that no word shall be wasted, but it very often happens that in passing fresh
legislation, the legislature makes a statement declaratory of the law. When it does so, it does not add to the law, nor
does it alter the duty of the court. When there is fresh legislation dealing with matters which have already been the
subject of legislation, then ex necessitaterei, all the Acts must be construed together for the purpose of answering
any question arising under them.29 The need to give meaning to every word of a statute also extends to rules
made under the statute.
Page 3 of 3
13 .Govindrama v Jhimibai 1988 JLJ 235; Kashi Singh v State of Bihar (1995) 2 BLJ 362 (Pat); Quebec Rly, Light, Heat
and Power Co Ltd v Vandry AIR 1920 PC 181, p 186, per Lord Sumner: it will also be presumed that words in statute
are used precisely and exactly, not loosely or inexactly; Odgers, Construction of Deeds and Statutes, second edn,
1946, p 174; Law Society v Us Bureau [1934] KB 343 ; Kamleshwar Singh v Dharamdeo Singh AIR 1957 Pat 375;
Uma Shankar Prasad Singh v Lakshmi Narayanjee AIR 1958 Pat 609, p 611, per CP Sinha J; Agaiah v Mohd Abdul
Kareem AIR 1961 AP 201 [LNIND 1960 AP 176], p 207, per Chandra Reddy CJ.
14 .Awadh Kishore Singh v Brij Bihari Singh AIR 1993 Pat 122; Andhra Pradesh Wakf Board v Bowlal Bibi AIR 1983 AP 57
[LNIND 1982 AP 147]; M/s Powar&Powar v CBCI Society AIR 1983 Kant 77 [LNIND 1982 KANT 113]; Municipal Corpn
for Greater Bombay v Monopol Chemicals Pvt Ltd AIR 1988 Bom 217 [LNIND 1988 BOM 130], 1988 Mah LJ 353
[LNIND 1988 BOM 130], (1988) 25 Reports 294, 1988 Mah LR 884, (1988) 2 Land LR 384, (1988) 3 Bom CR 197
[LNIND 1988 BOM 130]; overruling Municipal Corpn of Greater Bombay v Forage & Co AIR 1987 Bom 321 [LNIND
1987 BOM 199]; Ganeshlal v Dhandiba 17 IC 721; BaradaKanta Roy v Shaikh Maijuddi (1930) ILR 52 Cal 275, AIR
1925 Cal 1, p 3; Moher Sheikh v Queen-Empress (1915) ILR 21 Cal 392, p 399; Queen v Bishop of Oxford [1979] 4
QBD 245, p 261, per Cockburn CJ; Hough v Windus [1884] 12 QBD 224, p 229; Saleh Mohd v Khanmull AIR 1959 Mys
102, p 105; Uma Shankar v Lakshmi Narayanjee AIR 1958 Pat 609; Dharam Deo v State AIR 1958 All 865 [LNIND
1958 ALL 58]; Ambalal Chotalal v Babaladasdurgabai(1962) 3 Guj LR 425, AIR 1962 Guj 9 [LNIND 1960 GUJ 59];
Chhotey Lal v ITO ILR 1968 All 273-74, per Dwivedi J.
15 .Aidal Singh v Karain Singh AIR 1957 All 414 [LNIND 1957 ALL 20], p 424; Sabbir Fatima v Chancellor, University of
Allahabad AIR 1966 All 45 [LNIND 1965 ALL 25]; Laxmandas v Barfibai (1972) MPLJ 15, p 22, per Rama J; Dinsshaw
Manekji v Badkas AIR 1969 Bom 151 [LNIND 1968 BOM 7], p 156, per Nathwani J; State of West Bengal v S
Narayanarao AIR 1968 Cal 512 [LNIND 1968 CAL 41]; Hill v William Hill (Park Lane) Ltd [1969] 2 All ER 452:
legislature cannot be presumed to be guilty of tautology; Dattatray Eknath Lanke v Returning Officer, Amaravathi AIR
1986 Bom 354 [LNIND 1985 BOM 48], (1985) 2 Bom CR 185 [LNIND 1985 BOM 48], (1985) 87 Bom LR 405 [LNIND
1985 BOM 48], 1985 Mah LJ 875 [LNIND 1985 BOM 48], 1985 Mah LR 241.
16 . GP Singh, Principles of Statutory Interpretation, fourth edn, p 51; Hakim Ali v Board of Revenue, Uttar Pradesh AIR
1991 SC 972 [LNIND 1990 SC 925], 1990 All LJ 966, 1991 (1) JT 22 (SC), AIR 1991 SCW 252, 1991 Supp (1) SCC
565, (1986) All LJ 1110 overruled.
17 .Manicka Gounder v Arunachala Gounder AIR 1965 Mad 1 [LNIND 1964 MAD 19], (1964) ILR 2 Mad 598, 77 MLW
404.
18 .State of Rajasthan v Rajasthan Civil Services Appellate Tribunal (1993) 2 WLC 140 (Raj); Ali v Sufaira (1988) 2 Ker LT
94; Manicka v Arunachala AIR 1965 Mad 1 [LNIND 1964 MAD 19], p 4, per Ramchandraiyer CJ; Sundararamareddi v
State of Andhra Pradesh AIR 1959 AP 215 [LNIND 1958 AP 135], p 218, per Chandra Reddy CJ; Ganga Mfg Co Ltd v
State of West Bengal 76 CWN 389, p 392, per Alakchandra Gupta J.
19 .Chanan v Majo AIR 1976 P&H 310: (1976) 78 Punj LR 726; Laxminarain Mittal v Municipality, Neemuch 1983 Jab LJ
479.
20 . 1 Show 106.
21 .Commr of Income-tax, Gujarat v Distributors Ltd [1972] 83 ITR 377: 1972 SCJ 445, p 450, per Hedge J.
22 .Durga Prasad v State AIR 1953 All 774: 1953 AWR 334 (HC), 1953 ALJ 425; Aswini Kumar v Arabinda Bose AIR 1952
SC 369 [LNIND 1952 SC 94], p 377; Triveni Engg Works Ltd v Govt of Uttar Pradesh1978 All LJ 744.
23 . (2003) 6 SCC 186 [LNIND 2003 SC 510], para 9.
24 . AIR 1956 AP 56.
25 . (2005) 3 SCC 351 [LNIND 2005 SC 157].
26 . (2003) 11 SCC 699 [LNIND 2003 SC 599], para7.
27 . [1931] 2 KB 21.
28 . AIR 1956 Cal 222 [LNIND 1955 CAL 158].
29 .Sweeney v Fitz Hardinge 4 CLR 716, p. 726.
End of Document
Words Interpreted in Ordinary Sense Unless Technical (cross - reference to
common parlance rule in construction of taxation statutes)
NS Bindra
Presumptions
Words Interpreted in Ordinary Sense Unless Technical (cross -

reference to common parlance rule in construction of taxation statutes)
The first and most elementary rule of construction is that is to be assumed that the words and phrases of technical
legislation are used in their technical meaning if they have acquired one, and, otherwise in their ordinary
meaning.30 It is a familiar rule in the construction of legal instruments, alike dictated by authority and
commonsense, that common words in a statute are to be extended to all the objects which, in their usual
acceptation, they describe or denote, unless the context indicates that such a construction would frustrate the real
intention of the draftsman. Words of common use are generally to be construed according to their natural, plain and
ordinary significance, particularly when they are themselves precise and unambiguous.31
Plain and Natural Meaning not Interchangeable with Popular Meaning
The rule is that words used by the legislature should be given their plain and natural meaning. By plain and natural
meaning is meant the literal and popular as opposed to a figurative or technical meaning.32
In Deputy Commr. Agricultural Income-tax and Sales-tax v Chandra Corpn.33 the Court was considering the
definition of the expressions refrigerator in Kerala General Sales Tax Act, 1963. The State argued that this definition
included water coolers, if the expression refrigerator were to be construed in its general sense. The Court disagreed
with this interpretation, and held that the concerned expression were popular words well understood as meaning
different things. The Court observed:
One has to ascertain whether water-coolers and refrigerators are expressions which are ordinarily used in common
parlance or they are expressions of a technical or scientific character so as to attribute to them only the technical or
scientific meaning. In our opinion, both water-coolers and refrigerators are commonly understood in the commercial world
as goods serving different purposes...These popular words are well-understood as meaning different things and the
legislature could not have intended to give them any meaning other than that which is prevalent in the commercial world.
Ordinary Meaning Subject to Context and Other Factors
The general terms and expressions in a statute are to receive a general construction, that is, they are to be
accorded their full and natural meaning, unless the context, or some other admissible consideration indicates that
the legislature intended them to be taken in a more limited sense. General terms in a statute may be restrained and
limited by specific words with which they are associated. They may be taken in a limited and restricted sense when
the construction of them according to their widest meaning would lead to unjust, oppressive or absurd
consequences. They must be read structurally and in their context, for their significance may vary with their
contextual setting.34
The Supreme Court in Municipal Corporation of Delhi v Mohd. Yasin35 speaking of different meanings to be
adopted for words used in different contexts, held:
Page 2 of 4
Words Interpreted in Ordinary Sense Unless Technical (cross - reference to common parlance rule in
Vicissitudes of time and necessitudes of history contribute to changes of philosophical attitudes, concepts, ideas and ideals
with them, the meanings of the words and phrases and the language itself. The philosophy and the language of law are no
exceptions, words and phrases take colour and character from the contexts and the times and speak differently in different
contexts and times. And it is worthwhile remembering that words and phrases have not only a meaning but also content, a
living content. This is particularly so where the words and phrases, properly belong to other disciplines. Tax and Fee are
such words. They properly belong to the world of Public Finance, but since the Constitution and the Laws are also
concerned with Public Finance, these words have often been adjudicated upon in an effort to discover their context.
In Puma Ayurvedic Herbal (P) Ltd v CCE Nagpur,36 the point of dispute was whether the products made by the
appellant, a manufacturer of ayurvedic products, should be categorised as medicament or cosmetics. The court
again accorded approval to the twin test of common parlance and mention of the ingredients of the product in the
authoritative textbooks of Ayurveda. Differentiating between a cosmetic and a medicament, the Court ruled that
cosmetic products are meant to enhance beauty whereas a medicinal product or medicament is meant to treat
some medical condition. It may happen that while treating a particular medical problem, after the problem is cured
the appearance of the person concerned may improve. However, what is to be seen is the primary use of the
product. The extent or quantity of medicament used in a particular product was not a relevant factor. The fact that
use of medicinal element in a product was minimal does not detract from it being classified as a medicament.
On the same principle, special words in a statute may sometimes be expanded in their meaning by the fact that the
purpose of the law is general. The rule, it may be noted, is not a rule of law but a subsidiary rule of construction
which may often by usefully applied in considering the intention of the legislature. However, it is the duty of the court
not to confine itself to the mere verbal or literary effect of the provisions, as if applied to an abstract subject. It must,
in the first place, have regard to the paramount rule laid down in Heydon s case,37 that the court must consider the
occasion of passing the statute, the matter which was regarded as requiring an alteration of the law, and the nature
of the remedy provided for the evil which required alteration.38
Technical words retain their technical meaning
In ascertaining the meaning of an expression used in a statute, certain norms are adopted. If the legislature has
used an expression which has acquired a technical meaning and such expression is used ordinarily in the context
of a particular branch of law, it must be assumed that because of its constant use the legislature must be deemed to
have used such expression in a particular sense as is understood when used in a similar context. If an expression
has acquired a special connotation in law, dictionary or general meaning ceases to be helpful in interpreting such a
word. Such an expression must be given its legal sense and no other.
Where a word used by the legislature has a fixed technical meaning, it is to be taken in that sense, unless the
context or other evidence of meaning indicates a contrary legislative intent. The technical words and phrases of the
law are presumed to have been used in their proper technical significance when used in statutes, unless it plainly
appears that a different meaning was intended by the legislature.39 The first and most elementary principle is that it
is to be assumed that the words and phrases of technical legislation are used in their technical meaning, if they
have acquired one, and otherwise in their ordinary meaning.40
Similarly, terms of art should be understood according to their usage in the art to which they belong.
Where words have been used which have acquired a legal meaning, it will be taken, prima facie, that the legislature
has intended to use them with that meaning,41 unless a contrary intention clearly appears from the context.42
Where a word or phrase has an established meaning at common law, it is to be given the same meaning in the
interpretation of a statute in which it is used, unless it is evident that such was not the intention of the legislature.
Similarly, the legislature is presumed to know the meaning attributed to a word by previous legislation.43 The
general rule with respect to terms used in trade or commerce, is that in the absence of evidence of a contrary
legislative intent, words of commerce or trade, when used in a statute relating to those subjects, are presumed to
have been used by the legislature in their trade or commercial meaning.44 Word and expressions in a sales tax law
should be construed as understood in the trade by the dealer and the consumer. The sense in which they
understand them is the definitive index of legislative intention.45
Page 3 of 4
In Thampanoor Ravi v Charipara Ravi,46 the Court had to consider the ambit of the expression undischarged
insolvency occurring in Article 191 (1)(c) of the Constitution. The Court chose to rely on the definition of the
expression occurring in the Indian Contract Act, 1872, and the Companies Act, 1956, holding that since the
expression undischarged insolvent had acquired special meaning under the law of insolvency, courts must extend
the special meaning while interpreting the expression used in the aforementioned Article.
In Annapoorna Biscuit Mfg. Co. vCIT,47 the Court was called upon to decide whether the expression Cooked food,
occurring in the Schedules appended to the Uttar Pradesh Sales Tax Act, 1948, would include biscuits. The
appellant argued that cooked food ought to be interpreted in its ordinary sense i.e. food prepared by a process of
cooking which are generally served as meals. The Court agreed with this contention, and held that the expression
cooked food could not include biscuits, as biscuits were not considered to be cooked food for commercial and
general purposes. Based on this reasoning, the Court held that the appellant would not be liable to pay service tax
under the entry of cooked food.
In Unwin v Hansom,48 the question before the Court was the meaning to be attributed to the expression pruned or
loped in connection with the cutting off the tops of trees. The Court of Appeal held that the expression lop was used
in its popular sense, that is to say, of cutting off branches laterally. Lord Esher observed therein:
If the Act is directed to dealing with matters affecting everybody generally, the words used have the meaning attached to
them in the common and ordinary use of language. If the Act is one passed with reference to a particular trade, business or
transaction and words are used which everybody conversant with this trade, business or transaction knows or understands
to have a particular meaning in it, then the words are to be construed as having that particular meaning though it may differ
from the common or ordinary meaning of the words.
30 . Maxwell, Interpretation of Statutes, Twelfth edn, p 28; quoting R v Commrs of Income-tax [1888] 22 QBD 296, p 309;
Victoria City v Bishop of Vancouver Island [1921] 2 AC 384, p 387; Achhru Mal v Balwan Singh (1937) ILR 18 Lah 415,
AIR 1937 Lah 178.
31 .Dilip Damodaran v Govt of Andhra Pradesh AIR 1991 AP 194 [LNIND 1990 AP 272], (1991) 1 APLJ 221; Parvati K
Moojani v Fonseca, Director, DL & C Ministry of Defence, Pune AIR 1988 Bom 366 [LNIND 1988 BOM 216], (1988) 22
Reports 305, (1988) 2 Bom CR 464 [LNIND 1988 BOM 216], 1988 Mah LJ 786 [LNIND 1988 BOM 216], 1988 Mah LR
1331; Tata Engg and Locomotive Co Ltd, Jamshedpur v State of Bihar AIR 1989 Pat 23, (1988) BLJR 707, (1988) Pat
LJR 1024 (HC), 1989 BLJ 767.
32 .Martison v Hart [1854] 14 CB 357.
33 . 1976 Ker LT 22; KS Gangadhar Panicker v Vasuderan 1975 Ker LT 469, the word cashewnut includes cashewnut
kernel; Sonia Bhatia v State of Uttar Pradesh1981 All LJ 467 (SC).
34 .Nadiad Borough Municipality v Nadiad Electric Co Ltd AIR 1970 Guj 194, p 36, per PN Bhagwati J; Bijay Cotton Mills
Ltd v Rashtriya Mill Mazdoor Sangh AIR 1965 Raj 213 [LNIND 1965 RAJ 105], p 216, per Dave CJ.
35 . (1983) 23 DLT 493 [LNIND 1983 SC 132].
36 . (2006) 3 SCC 266 [LNIND 2006 SC 169].
37 . 1 Rep 7.
38 .Luckey v Edmund 21 CLR 336; Ramaswamy Nadar v State of Madras AIR 1958 SC 56 [LNIND 1957 SC 102]; AK
Moorthy v D Ramachandran (1992) 2 Ker LJ 215; Birendra Kumar Rai v Union of Indian 1992 Cr LJ 3866 (All).
39 . Crawford, Statutory Construction, art 187, pp 319-20; Burton v Reevell (1847) 16 LJ Ex 85-86, per Parke B; R v
Commr of Income-tax [1888] 22 QBD 296, p 309; Laird v Briggs (1881) 19 Ch D 22, p 34, per Jessel MR; Lord
Advocate v Stewart [1902] AC 344, p 351, per Lord Macnaghten.
Page 4 of 4
40 . Maxwell, Interpretation of Statutes, 12th edn, p 28; quoting R v Commrs of Income-tax [1888] 22 QBD 296, p 309;
Victoria City v Bishop of Vancowuver Island [1921] 2 AC 384, p 387; Achru Mal v Balwant Singh (1937) ILR 18 Lah
415, AIR 1937 Lah 178.
41 .Workmen of National and Grindlays Bank Ltd v National and Grindlays Bank Ltd AIR 1976 SC 611 [LNIND 1976 SC
12].
42 .Attorney-General for NSW v Brewery Employees Union of NSW 6 CLR 469, p 531, per OCONNOR J.
43 .KusumLata v Kampta Prasad AIR 1965 All 280.
44 .United Offset Process Pvt Ltd v Asst Collector of Customs, Bombay AIR 1989 SC 622 [LNIND 1988 SC 516], 1988 (4)
JT 198 [LNIND 1988 SC 516], (1988) 19 ECR 571 [LNIND 1988 SC 516], (1988) 38 ELT 568 [LNIND 1988 SC 516],
(1988) 18 ECC 473, (1989) 1 Com LJ 53, (1989) Cr LR 109 (SC), (1989) 73 STC 81 [LNIND 1988 SC 516]; Tata
Engg& Locomotive Co Ltd, Jamshedpur v State of Bihar AIR 1989 Pat 23, (1988) BLJR 707, (1988) Pat LJR 1024
(HC), 1989 BLJ 767; Sirsilk Ltd v Textiles Committee AIR 1989 SC 317 [LNIND 1988 SC 631], (1988) 27 STL 53,
(1988) 4 JT 592; Re 200 Chests of Tea(1824) 9 Wheaton 435; Codwaladar v Zeb 38 L Ed 115, p 117, per Gray J;
Union of India v Minimum Wages Act Authority AIR 1969 Bom 310 [LNIND 1968 BOM 40], per Nain J; Vimla Cold
Storage v State of Kerala 1976 Ker LT 624; Baroda Municipal Corpn v Hindustan Conductors Pvt Ltd(1979) 220 Guj LR
502.
45 .Delhi Cloth Mills v State of Rajasthan AIR 1980 SC 1553.
46 . (1999) 8 SCC 74 [LNIND 1999 SC 813].
47 . (1981) 3 SCC 442, 1981 All LJ 906 (SC), 1981 Tax LR 3055 [LNIND 1981 SC 312], (1981) 48 STC 254 [LNIND 1981
SC 312], 1981 STI 366 (SC), (1981) 1 STL 161 (SC).
48 . [1891] 2 QB 115.
End of Document
Legislature Presumed to Know the Law, Judicial Decisions and General
Principles of Law
NS Bindra
Presumptions
Legislature Presumed to Know the Law, Judicial Decisions and

General Principles of Law
The legislature must be presumed to know the course of the legislation,49 as well as the course of judicial
decisions in the country,50a fortiori of the superior courts of the country.51 It is a well-settled rule of construction
that when 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 them in 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 repeat the same words, they must be taken to have accepted the interpretation put on them by the court
as correctly reflecting the legislative mind.52 It is equally presumed that the legislature is aware of the general
principles of law and did not intent to overthrow a fundamental legal principle, in the absence of a contrary intention
expressed in unmistakable terms.53 It is a sound inference to be drawn as a matter of construction that the
legislature is aware of the practice of inquiries (and investigations) and its incidents and about treating the reports
therein as confidential.54 Sutherland opined:
The legislative language will be interpreted on the assumption that the legislature was aware of existing statutes, the rules
of statutory construction, and the judicial decisions and that if a change occurs in legislative language a change was
intended in legislative result.55
Lord Atkin in Evans v Bartlam,56 however, did not make a similar presumption qua the judges. He said:
I am not prepared to accept the view that there is in law any presumption that anyone, even a judge, knows all the rules
and orders of the Supreme Court. The fact is that there is not and never has been a presumption that everyone knows the
law. There is the rule that ignorance of the law does not excuse, a maxim of very different scope and application.
In Ahmedabad Private Primary Teachers Association vAdministrative Officer,57 the question before the Court was
whether teachers would fall within the category of employees as defined in the Payment of Gratuity Act, 1972. The
court observed that by virtue of the doctrine ofparimateria, reference to other statutes dealing with the same subject
or forming part of the same system was a permissible aid to the construction of provisions in a statute. The court
referred to the definition of employee in a number of labour legislations, in order to determine whether teachers
came within the meaning of employee as defined under the Payment of Gratuity Act, 1972, and decided in the
negative. The court observed that the legislature was aware of the various definitions of employee under other
labour legislations, and in particular, as enumerated in the Employees Provident Fund Act, 1952. Being so aware,
the legislature would have defined employee in a wider sense, as done in the EPF Act, if it intended to include
teachers within the definition.
Misapprehensions as to State of Law
If it appears from the wording of an enactment that the legislature was under some misapprehension as to the state
of law on a particular subject, such a misapprehension would not have the effect of making the law which the
Page 2 of 3
Legislature Presumed to Know the Law, Judicial Decisions and General Principles of Law
legislature had erroneously assumed it to be.58 One of the most important consequences of the presumption, that
the legislature is presumed to know the law, is that an erroneous declaration of existing law is wholly inoperative.59
In Mollwo, March & Co v Court of Wards,60 some reliance was placed on Section 1, the Statutes 28 and 29 Vict C
86, which enacted that the advance of money to a firm upon a contract that the lender would receive a rate of
interest varying with the profits, or a share of the profits, would not, of itself, constitute the lender a partner, or
render him responsible as such. It was argued, that this raised an implication that the lender was so responsible by
the law existing before the passing of the Act. The Privy Council observed:
The enactment is no doubt entitled to great weight as evidence of the law, but it is by no means conclusive; and when the
existing law is shown to be different from that which the legislature supposed it to be, the implication arising from the statute
cannot operate as a negation of its existence.
Wrong Recital
There is a general presumption against an intention to disturb the established state of the law, or to interfere with
the vested rights of the subject, and that a strong bearing now exists against construing a statute so as to oust or
restrict the jurisdiction of a superior court, although this feeling may be due to its origin to the pecuniary interests of
the judges in former times, when their emoluments depended mainly on fees. But at the same time, the supposition
is that the legislature would not make any important innovation without a very explicit expression of its intention. If
the intention is explicit and clear, then no question of applying this presumption will arise.61 The Court observed in
Earl of Leicester v Heydon:62
This recital cannot be taken to proceed but upon information, and the court of Parliament may be misinformed as well as
other courts; none can imagine they would purposely recite a false thing to be true...From hence it follows that they do not
intend anyone to be concluded by such recital grounded upon falsehood, for he who says to the contrary affirms that their
intention is to oppress men wrongfully.
According to Wilberforce:63
The presumption that the legislature knows what is the existing law at the time when it passes any statute, is a most
important element in the consideration of the changes which such statute may effect. It would be impossible to form a
consistent or harmonious view of our law if each statute were to be regarded as an independent act of legislation, and not
as a part of a general system. We are, therefore, bound to assume that in passing a statute, the legislature has before its
minds eye an exact outline of the law affecting the particular subject with which it is dealing. The new statute is intended, as
far as possible, to fix into the existing framework.
49 .Abdullah v Mohan Gir (1889) ILR 11 All 490, p 530; quoting Exmpress v Burah 5 IA, 187, p 196.
50 .Shanta Nand v Basudeva Nand AIR 1930 All 225 [LNIND 1930 ALL 3], 240, ILR 52 All 619; PitamLal v Kallu Ram ILR
53 All 687, AIR 1931 All 489, p 490; Kayastha Co Ltd v Sita Ram Dubey AIR 1929 All 625.
51 .BabadurMolla v Ismail AIR 1925 Cal 329, p 331, (1925) ILR 52 Cal 463.
52 .Bengal Immunity Co v State of Bihar AIR 1955 SC 661 [LNIND 1955 SC 122], p 749: legislature must be presumed to
know the facts and conditions rendering a statute expedient and beneficial; Raval& Co v Ramachandran AIR 1967 Mad
57 [LNIND 1966 MAD 15], p 69.
53 .Graham v Van Wyck 14 Barb 53.
54 .Local Govt Board v Arlidge [1914] 1 KB 160, p 197, per Hamilton J: minority; case reversed in [1915] AC 120, p 150.
55 . Sutherland, Statutory Construction, vol 2, art 4510; Wilberforce, Statute Law, p 16; BipulBehari v Nikhilchandra AIR
1929 Cal 566-67; Jogendra Roy v Shyam Das (1909) ILR 36 Cal 543, p 555; Kamini Debi v Pramatha Nath Mookerjee
Page 3 of 3
Legislature Presumed to Know the Law, Judicial Decisions and General Principles of Law
(1912) ILR 39 Cal 33, pp 39 and 40; Mohammad Mazaharal Ahad v Mohammad Azimuddin Bhuinya AIR 1923 Cal 507,
p 511.
56 . [1937] AC 473, p 479.
57 . (2004) 1 SCC 755.
58 .Earl of Shrewsbury v Scott[1859] LJCP 34, p 53, per Cockburn LJ.
59 . Wilberforce, Statute Law, p 13.
60 . LR IA Supplement 86, pp 104 and 05.
61 .Meena Ram v Dwarki AIR 1958 Punj 417-18.
62 .[1572] Plowd 398; cited in Stead v Carey(1845) 14 LJCP 182; Cokes observations: Co Litt 1 196 do not appear to be
strictly true at the present day, he had said:
By the authority of our author the rehearsal or preamble of a statute is to be taken for truth, for it cannot be thought that a
statute that is made by authority of the whole realm, as well as of the King and of The Lords and Temporal, and of all
the Commons, will recite a thing against the truth.
63 . Ibid, p 19.
End of Document
No Alternation in Law is Presumed
NS Bindra
Presumptions
A statute is prima facie to be construed as changing the law to no greater extent than its words or necessary
intendment require.64 It is a general principle of law when an act is done by one person at the request of another,
which act is not in itself manifestly tortuous to the knowledge of the person doing it, and such act turns out to be
injurious to the rights of a third party, the person doing it is entitled to an indemnity from him who requested that it
should be done. This principle is of the widest general application. It is often said to be based on a contract implied
by law, the request importing a promise to indemnify the other party against the consequences to him of acting
upon the request. Amendments are often made to clear up ambiguities, and such amendments which are intended
to prevent misinterpretation, do not in themselves alter the law in any way.65
Trevor J. observed in Arthur v Bokenham:66
Statutes are not presumed to make any alteration in the common law, further or otherwise than the Act does expressly
declare.
In Ananti (Mst) v Chhanu,67 Sulaiman, Mukerji and Kendall JJ, observed:
We do not think that the legislature could have intended to alter the law in both respects by the use of language which is
capable of two interpretations; and even if we were to allow that both interpretations are possible, we should have to hold
that the one which leaves the law unchanged is to be preferred to the one which drastically alters it.
Now, there is a well-recognised presumption against altering the law by implication, except where without such
implication the object of the enactment would be defeated.68 In Dalsingar Singh v Jainathkuer,69 Hamilton J.
reiterated:
There is a presumption that the legislature does not intend to make any substantial alteration in the law beyond what it
explicitly declares either in express terms or by clear implication, or, in other words, beyond the immediate scope and
object of the statute. It is in the last degree improbable that the legislature would overthrow fundamental principles, infringe
rights, or depart from the general system of law, without expressing its intention with irresistible clearness.
Sir John Wallis CJ., expressing the unanimous opinion of the Full Bench in GovindaIyer v Emperor,70 concluded:
I may add that, where sections are repealed and re-enacted in slightly different form, there is a presumption against implied
as contrasted with express alterations in the scope of the section.
In Secretary of State v Bank of India,71 the bank had obtained a government promissory note under a forged
endorsement. It applied to the public debt office under the Indian Security Act, 1920, for the renewal of the note. In
the meanwhile, the original owner of the government promissory note came to know of the fraud and sued the
secretary of state for conversion of the note, whereupon the secretary of state sued the Bank of India, at whose
instance the note was renewed, for indemnity under the aforementioned rule of law. The bank argued that under
Section 21 of the Act, the rule of indemnity was impliedly abrogated. Lord Wright repelled this contention. He
observed:
Page 2 of 3
If it had been intended by the insertion of that section in the Act of 1920 to abrogate the common law indemnity existing
under the repealed Act, the legislature would, it seems, have used words clearly expressing that intention, so as to secure
that, save as provided by section 21, there should be no right of indemnity.
In Nilmani Kar v Sati Prasad Garga,72 the Court had to consider Section 52 (6) of the Bengal Tenancy Act to
decide whether the defendants were supposed to pay a consolidated rent for the tenancy, or whether they were
liable to pay additional rent for the increment of area as disclosed by recent surveys over the area shown in the
rent-roll of the landlords. The appellant suggested that to determine the meaning of the expression at the time the
measurement on which the claim is based was made” occurring in Section 52, the Court ought to first ascertain
what difficulties had been created by the law as it stood before Section 52 was amended by the insertion of Sub-
section (6), and then interpret the phrase on the assumption that the Legislature intended to remedy what might
have been considered as the undesirable result of the Section in its original form. The respondents argued that this
was not the correct method of interpretation of a statutory provision framed in unambiguous language. The Court
agreed with the respondents on this point of interpretation, and observed:
In the case of a codifying Statute, there may sometimes be a presumption that a particular provision was intended to be a
statement of the existing law rather than a substituted enactment, and from this point of view an enquiry into the pre-
existing law may conceivably be useful where the language of the codifying Statute is open to doubt. In the case of an
amending Statute, on the other hand, the manifest intention is to alter the preexisting law, and speculation that the law was
intended to be altered only in a certain repack or to a particular extent, must usually rest on a slender basis.
64 .Secretary of State v Bank of India Ltd AIR 1938 PC 191, p 194, per Lord Wright.
65 .Secretary of State for India v Purnendu Narayan Roy (1940) ILR Cal 123, p 135:
It is a recognised rule that where there have been decided cases before an Act is amended, if the amendment does not
expressly show that the law as interpreted by the decisions is altered, the rule lad down by the decisions is to be
adhered to; Harnandan Rai v Baliram AIR 1931 Pat 1, p 3.
66 .(1708) 11 MOD RAP 148, p 150; Rolfe v Flower (1866) LR 1 PC 27, 35 LJ PC 13: it was urged that it was intended to
alter the well-known principle of the law of insolvency that a joint creditor having a security upon the separate estate is
entitled to prove against the joint estate without giving up his security; their Lordships of the Privy Council repelled this
contention saying:
If this the establishment of a new Code of Insolvency Law, and it was the object of the colonial legislature to prevent the
operation of a rule which they considered unjust, it is hardly to be imagined that they would have committed their
intention to the equivocal meaning of a few words in a single section of Act.
67 . AIR 1930 All 193, p 197, (1930) ILR 52 All 501.
68 .Ahmad Hossein v Chembelli AIR 1951 Cal 262 [LNIND 1949 CAL 41], p 264; quoting Maxwell, Interpretation of
Statutes, ninth edn, pp 85-86:
One of these presumptions is that the legislature does not intend to make any substantial alteration in the law beyond what
is expressly declares, either in express terms or by clear implication, or, in other words, beyond the immediate scope
and object of the statute.
69 . AIR 1940 Oudh 138, p 142; SobhrajDwarkadas v Emperor 45 IC 399, p 440 (Sind); Hayat Uddin v Rahiman AIR 1935
Sind 73, p 76; Craies, Statute Law, fourth edn, p 114; Khudabux v Panjo AIR 1930 Sind 265, p 279, per Rupchand
AJC; Mhd Ali Essaji v Karachi Municipality 20 IC 572 (Sind); Harnam Singh v Man Sing AIR 1961 Punj 133, p 136;
Thakurji v Parmeshwar Dayal AIR 1960 All 339.
70 . AIR 1919 Mad 7, p 8, (1919) ILR 42 Mad 530, p 546.
71 .Ibid.
72 . AIR 1921 Cal 397: (1921) ILR 48 Cal 556, pp 564 and 65.
Page 3 of 3
End of Document
Presumption in Case of Re-Enactment
NS Bindra
Presumptions
Prior Judicial Interpretation
There is a presumption that the legislature, when it repeats in substance an earlier enactment in a later Act, that
has obtained a settled meaning by judicial construction, intends the words to mean what they meant before.73
Reproduction of Language of Old Act in New Act
When the language of a particular section of a statute has been interpreted in particular way by the courts and that
language has been reproduced by the legislature in the new Act, we are entitled to assume that the judicial
interpretation has been accepted.74 The principle underlying this rule of construction has only to be restated in
different words when the interpretation of the previous statute was not by judicial decisions but by the houses of the
legislature themselves and is implied in the rules of procedure or course of conduct of business set up or followed
by them.75
Statutes in pari materia
As pointed out by Blackburn J, in Mersey Docks v Cameron:76
Where an Act of Parliament has received a judicial construction putting a certain meaning on its words and the legislature in
a subsequent Act in pari materia, uses the same words, there is a presumption that the legislature used those words
intending to express the meaning which it knew had been put upon the same words before, and unless there is something
to relent that presumption, the Act should be so construed even if they were such that they might originally have been
construed otherwise.
While interpreting an expression which is found in one Act, in pari materia with the other; it is permissible, nay
necessary, to bear in mind the decision given by the courts in relation to the same expression under the other
law.77 This principle of construction is based on the ground that, as the legislature knows what the law is and has
the power to alter it, any mistake on the part of the judges may at once be corrected, and the absence of any such
correction, specially during a long period of time, indicates that the courts have rightly ascertained the intention of
the legislature.78
73 .Vasudeva Mudaliar v Srinivasa Pillai (1907) ILR 30 Mad 426, p 433 (PC), per Sir Arthur Wilson; Sabha Chand v
Piarelal AIR 1930 Lah 764, p 767, (1930) ILR 11 Lah 481:
when the legislature has copied out part of the language of the old section, it may be presumed that it accepted the
interpretation put upon those expressions by the courts under the old law;
Manohar Singh v Sheo Saran AIR 1927 All 369, p 371; Applanarasimha Raju v Seethayamma Garu(1959) 1 Andh WR 319;
Manek Chand Choudhary v State 62 CWN 94: repeats words on which practice was founded; Zimmerman v Grossman
[1971] 1 All ER 363, p 369, Widgery LJ.
Page 2 of 2
74 .Kayastha Co Ltd v Sita Ram Dubey AIR 1929 All 625, p 630; PitamLal v Kalla Ram AIR 1931 All 487, (1931) ILR 53 All
687; Mohd Mazaharul Ahad v Mohd Azimuddin Bhuinya AIR 1923 Cal 507, p 511; Bihari v Nikhil Chandra AIR 1929 Cal
566; Cursetji Kinshaw Bolton v Gangaram Limbaji Gaikwad 30 IC 545 (Bom); Pannalal v State of Delhi AIR 1954 Punj
251, p 253; Madras Corpn v K Natidu AIR 1955 Mad 82 [LNIND 1954 MAD 202], p 87; State v Editor, Matribhumi AIR
1955 Ori 36 [LNIND 1954 ORI 44]: the principle applies to well-known cases of decisions by superior courts, because
the legislature cannot be expected to be aware of a decision arrived at by every district court; Ghayar Ali Khan v
Keshav AIR 1959 All 264 [LNIND 1958 ALL 115], p 275; Talib Hussain v Addl District Judge AIR 1986 All 196 [LNIND
1985 ALL 296], 1986 All LJ 845.
75 .Faridi v Uttar Pradesh Legislature AIR 1963 All 75 [LNIND 1962 ALL 100].
76 .[1864-65] 11 HLC 433, p 480; Isan Gangaram v Saptulla Sikdar AIR 1922 Cal 331, p 333; Nagendra Mohan Roy v
Pyari Mohan Saha (1926) ILR 43 Cal 103, p 112.
77 .Madanlal Sharma v Santosh Sharma 1980 Mah LJ 391; held Parliament intended to bring the provision relating to
cruelty in Hindu Marriage Act on par with the concept of cruelty as it is found under the Special Marriage Act.
78 .Jogendra Chandra Roy v Shyam Das (1909) ILR 36 Cal 543, p 556; National Lend Co v United States 64 L Ed 496, p
499, per Clarke J.
End of Document
Presumption in case of changes in phraseology
NS Bindra
Presumptions
When words and phrases previously interpreted by the courts are used by the legislature in a later enactment
replacing the previous statute, there is a presumption that the legislature intended to convey by their use, the same
meaning which the courts had already given to them. This presumption will naturally be much weaker when the
interpretation was given in one solitary case and was not tested in appeal.79 It is an ordinary rule of construction
that a change of language in the same Code or Act may be presumed to indicate a change of intention on the part
of the legislature.80 However, it is also well-known that occasionally draftsmen use different words to indicate the
same idea for the purpose of elegance or what is called the grace of style or their wish to avoid the same word, or
sometimes by the circumstances, that the Act has been compiled from different sources and sometimes by
alteration and addition from various hands which the Acts undergo in their progress in Parliament.81
In NatesaMudaliar v Dhanpal Bus Service,82 the Court had to consider the difference in the language of the Motor
Vehicles Act, 1939, Motor Vehicles (Amendment) Act, 1956 and the Madras Motor Vehicles (Amendment) Act,
1954. The Court extensively dealt with the scope of modifying the language of the Act, and observed:
A legislative amendment of an enactment using a different phraseology from what is contained in the old Act naturally gives
room to the inference that the law was intended to be changed...Whether a change of language in an amended Act
departing from the previous unlamented Act is intended to effect an alteration of the law does not, in our opinion, depend
upon any presumption one way or the other, though it would be a sound rule of construction to hold that the change cannot
be disregarded as a mere freak of the legislature...A comparison of the material provision in the old Act with that in the
present Act, that is Section 48, discloses a striking dissimilarity in the two provisions. The structure of the old provision has
been departed from in a manner which is so unmistakable that it cannot remain unnoticed. In our opinion the alteration is
not merely verbal and has not been indulged in by Parliament to improve the diction. Indeed, the change is profound and it
would be to miss the obvious if we were to hold that despite all the changes the Parliament still intended that there should
be no alteration in the substance of the legislation. We are inclined to take the view that the Parliament deliberately, without
using the expression in any sinister sense, intended to bring about an alteration of the law and wanted to lay down that so
far as the stage carriage permits are concerned routes would not be a mere condition or a string attached to the permit.
In Gauranga Charan Bhuyan v Fakir Charan Nayak,83 the Court was considering the use of the expression
discharge in the Code of Criminal Procedure of 1908, and the subsequent code of 1973. It held that the legislature
was well aware of the judicial interpretation put on the word discharge occurring in the old Act and had used the
expression in the new Act as well. Hence, the expression should be interpreted in the sense which has been
judicially put under the old repealed code.
79 .Diamond Sugar Mills Ltd v State of Uttar Pradesh [1961] SCR 242, p 255; Federal Commr v Columbia B System 311
US 151; Melborne Corpn v Barry 31 CLR 174, p 181, per Knox CJ.
80 .Farid v Peru 28 IC 105 (Sind); quoting Maxwell on Interpretation of Statutes, ninth edn, p 324, (now see eleventh edn.,
pp 36, 315-16); however the order of reference to Full Bench in Nanarao v Arunachalam AIR 1940 Mad 385 [LNIND
1939 MAD 334], p 392; Manick Lall v Dabiruddin Ahmad AIR 1951 Cal 236-38; Maxwell, Interpretation of Statutes,
eleventh edn, pp 36, 315-16.
Page 2 of 2
81 .Kesvananda Bharti v State of Kerala WP 135 of 1970, 24 April 1973, AIR 1993 SC 1461, per Mathew J; quoting
Maxwell on Interpretation of Statues, twelfth edn, p 286: referred to by Chandrachud J, also in the above case.
82 . AIR 1964 Mad 136 [LNIND 1963 MAD 196].
83 .(1977) 44 Cut LT 311.
End of Document
Vested Rights are Preserved
NS Bindra
Presumptions
Vested Rights
Every statute which prima facie takes away or impairs vested rights acquired under existing laws or creates new
obligations, or imposes a new duty, or attaches a new disability in respect of transactions or considerations already
past, must be presumed to be intended not to have a retrospective operation.84 Where an equivocal word or
ambiguous sentence leaves a reasonable doubt as regards its meaning, the benefit of doubt must be given to the
subject and against the legislature which failed to explain itself. In order to take away a right, it must be shown that
the legislature has authorised in express terms the taking away of such right irrespective of the possible
interference with the existing right.85 If the application of the provision of an amending Act makes it impossible to
exercise a vested right of suit, the Act should be construed as not being applicable to such cases.86 When the
legislature alters the rights of parties by taking away or conferring any right of action, its enactments, unless in
express terms made applicable to pending actions do not affect them.87 In particular, there is no difference
between abolishing an appeal altogether and transferring an appeal to a new tribunal. On the same principle, where
the repealed Act excluded an appeal, the repealing Act cannot give an appeal.88 The finality of a decision cannot
be taken away by a statute passed after the decision unless a right of appeal against that order is expressly or by
necessary implication conferred by the statute.89 So also, there is no vested right in a litigant to institute his action
in a particular forum. A forum belongs to the realm of procedure and does not constitute the substantive right of a
party or a litigant.90
In State of Bombay v Supreme General Films Exchange Ltd,91 the question before the Court was whether in the
absence of provisions giving retrospective effect to amendments made in the Court Fees Act, 1870, as applied to
Bombay by the Court Fees (Bombay Amendment) Act, 1954, the court fees payable was payable according to the
law in force at the date of filing of the suits, or according to the law in force at the date of the filing of the
memoranda of appeal, which was after the amendment came into force. The Court held that the right to appeal was
a substantive right and impairing this right by putting new restrictions could not be allowed. Hence, enhancing of
court fees to be paid for an appeal arising out of suit decided long before the amendment was a substantive
restriction on right to appeal. The Court observed:
A right of appeal is a substantive right which vests in a litigant at the date of the filing of the suit, and cannot be taken away
unless the legislature expressly or by necessary intendment says so; furthermore, an appeal is a continuation of the suit,
and it is not merely that a right of appeal cannot be taken away by a procedural enactment which is not made retrospective,
but the right cannot be impaired or imperiled nor can new conditions be attached to the filing of the appeal; nor can a
condition already existing be made more onerous or more stringent so as to affect the right of appeal arising out of a suit
instituted prior to the enactment...it has been held that an impairment of the right of appeal by putting a new restriction
thereon or imposing a more onerous condition is not a matter of procedure only; it impairs or imperils a substantive right
and an enactment which does so is not retrospective unless it says so expressly or by necessary intendment.
The presumption
It has been consistently held that repeal of an Act followed by re-enactment does not automatically wash away the
Page 2 of 4
right accrued and the liabilities incurred under the repealed law; such a consequence ensues only if an explicit
intention appears in the repealing law.92
In P Tulsi Das v Government of AP,93 the state government framed the Andhra Pradesh Educational Rules, 1966,
in exercise of the executive powers. After the revision of scales of pay in 1970, some of the untrained graduate
appointed as school assistants to teach humanities claimed entitlement to the same scale of pay as untrained
graduates appointed to teach science and mathematics. The tribunal directed that even the untrained graduates in
humanities should be allowed the minimum of Rs 130. per month. Later, due to heavy financial commitments and
serious implications flowing from the various judgments considered to be detrimental to the public interest, the
Andhra Pradesh Educational Service Untrained Teachers (Regulation of Services and Fixation of Pay) Act, 1991,
was enacted. The provisions of the Act purported to deprive the benefits already accrued and acquired by the class
of petitioners by giving retrospective effect to the Act, and further by providing for the recovery of the amount
already paid. It was contended that the Act took away the vested rights of the appellants and consequently was
arbitrary and liable to be struck down as violative of Articles 14 and 16 of the Constitution. Pronouncing upon the
constitutional validity of the impugned statute, the Supreme Court pointed out that the orders of the High Court as
well as the tribunal recognised and upheld rights and benefits acquired by the teachers. These orders attained
finality without
being further challenged by the Government. Such rights, benefits, and perquisites acquired by the teachers
concerned could not be said to be rights acquired otherwise than in accordance with law or brushed aside and
trampled at the sweet will and pleasure of the government, with impunity. Consequently, it was held that the
legislature could not validly deny rights acquired by the appellants retrospectively, which was done when it enacted
a provision whereby it enacted a provision to repay and restore the amounts paid to them by the state. The
provisions of the Act, could be valid in operation in futuro but could not be held valid in so far as it purports to
restore status quo ante for the past period taking away the benefits already available, accrued and acquired by the
teachers.
No retrospective operation to disturb vested rights
The rule of presumption against retrospective operation does not require addition of words to any section which is
otherwise plain. The rule applies only where the words are not plain or are capable of two meanings.1 However, if
the intention of the legislature is apparent, the Act, though prospective in form, may be given retrospective
operation, if the object of the Act is to protect the public against some evil or abuse.2 A law is said to be not
retrospective when right or liability arising out of rural relation constituted before the new law come into force or
created by a rural fact or even taking place before the new law, or any relief or remedy in respect of that right or
liability remains unaffected by the new law.3
Wright J. observed in Re Athlumney, Ex p Wilson:4
Perhaps no rule of construction is more firmly established than thisthat a retrospective operation is not to be given to a
statute so as to impair an existing right or obligation, otherwise than as regards matter of procedure, unless that effect
cannot be avoided without doing violence to the language of the enactment. If the enactment is expressed in language
which is fairly capable of either interpretation, it ought to be construed as prospective only.
Substantive Rights Distinguished from Matters of Procedure
In Colonial Sugar Refining Co v Irving,5 it was laid down that while provisions of a statute dealing merely with
matters of procedure may properly, unless that construction be textually inadmissible, have retrospective effect
attributed to them, provisions which touch a right in existence at the passing of the statute are not to be applied
retrospectively in the absence of express enactment or necessary intendment. Lord Blackburn observed in Gardner
v Lucas:6
...it is quite clear that the subject-matter of an Act might be such that, though there were not any express words to show it, it
might be retrospective. For instance, I think it is perfectly settled that if the legislature intended to frame a new procedure,
that instead of proceedings in this form or that, you should proceed in another and a different way; clearly these bygone
transactions are to be sued for and enforced according to the new form of procedure. Alterations in the form of procedure
Page 3 of 4
are always retrospective, unless there is some good reason or other why they should not be...where the effect would be to
alter a transaction already entered into, where it would be to make that valid which was previously invalidto make an
instrument which had no effect at all, and from which the party was at liberty to depart as long as he pleased, bindingi think
the prima facie construction of the Act is that it is not to be retrospective, and that it would require strong reasons to show
that is not the case.
84 . Maxwell, Interpretation of Statutes, twelfth edn, p 216; Bourke v Mutt School Board Elections [1894] 1 QB 925 ;
Haider Husain v Puran Mal AIR 1935 All 706, p 710; Gurmukhdas v Hossomal AIR 1932 Sind 71; Banwari Gope v
Emperor (1943) ILR 22 Pat 175, AIR 1943 Pat 18, p 20; Sripatichandra v Kailash Chandra AIR 1936 Cal 386;
Subramania Aiyar v Namaswaya AIR 1918 Mad 162 [LNIND 1917 MAD 317]; Promotha Nath Pal v Mohini Mohan Pal
(1920) ILR 47 Cal 1108, p 1113:
The rule that enactments in a statute are generally to be construed to be prospective and intended to regulate the future
conduct of persons, is deeply founded in good sense and strict justice and it has been repeatedly laid down that in the
absence of clear words to that effect, a statute will not be construed so as to take away a vested right of action acquired
before it was passed.
Lachmi Chand v Bijirao AIR 1921 Nag 170.
85 .Sreeram Durgaprasad v Dy Collector of Customs AIR 1965 AP 294 [LNIND 1964 AP 221].
86 .Ajit Singh v Bhagbati Charan AIR 1922 Cal 491.
87 .Shibnath v Porter AIR 1943 Cal 377.
88 .Nana v Sheku (1908) ILR 32 Bom 337; Hurro Sundari v Bhojohari Das (1889) ILR 13 Cal 86; People s Bank v Wahid
Bux AIR 1943 Lah 170; Doraiswamy v Vaithilinga AIR 1918 Mad 548 [LNIND 1917 MAD 68].
89 .Delhi Cloth Mills v Income-tax Commr AIR 1927 PC 242 [LNIND 1927 BOM 129]; Dilaram v Atmaram AIR 1949 All
225; Het Ram v Collector of Aligarh AIR 1941 All 355; Bimala Prasad v State of West Bengal AIR 1951 Cal 258;
Subramania Aiyar v Namasivayya AIR 1918 Mad 162 [LNIND 1917 MAD 317]; Shridhar v Collector of Nagpur AIR
1950 Nag 90.
90 .VCK Bus Service Pvt Ltd v Sethna AIR 1965 Mad 149 [LNIND 1964 MAD 271], (1965) ILR 1 Mad 136, (1965) 1 Ker
LJ 203; Kandaswamy Mudaliar v Sheik Ahmad Peer Mahommad Mustafa 90 LW 123, (1977) 1 Mad LJ 244.
91 . AIR 1960 SC 980 [LNIND 1960 SC 136].
92 .Bansidhar v State 1976 RLW 570 (The appeal in the Supreme Court is available at AIR 1989 SC 1614 [LNIND 1989
SC 186]); Controller of Estate Duty, Gujarat-1, Ahmedabad v MA Merchant AIR 1989 SC 1710 [LNIND 1989 SC 287],
(1989) 77 CTR 177, [1989] 177 ITR 490 [LNIND 1989 SC 287], (1989 44 Taxman 342;
93 . (2003) 1 SCC 64, para 14.
1 .Gulabchand v Kudilal AIR 1958 SC 554 [LNIND 1958 SC 33].
2 .Shah Bhojrajkuverji Oil Mills v Subhas Chandra Yograj AIR 1961 SC 1596 [LNIND 1961 SC 194].
3 .Rajeshwar Singh v State of Bihar AIR 1983 Pat 194.
4 . [1898] QBD 547, 551-52; Maxwell, Interpretation of Statutes, twelfth edn, p 216; Haider Husain v Puranmal AIR 1935
All 706, 710; Pannirselvam v Veeriahvandayar AIR 1931 Mad 83 [LNIND 1930 MAD 252], p 91; Sham Singh v Virbhan
(1942) ILR Lah 349, AIR 1942 Lah 102, p 104; AA Calton v Director of Education AIR 1983 SC 1143 [LNIND 1983 SC
91].
5 . [1905] AC 369; followed in Delhi Cloth and General Mills Co Ltd v Income-tax Commr, Delhi (1928) ILR 9 Lah 284, p
290 (PC): their lordships had no doubt that provisions which, if applied retrospectively, would deprive of their existing
finality orders which, when the statute came into force, were final, were provisions which touched existing rights.
6 . [1873] 3 AC 582 , p 603; Reg v Inswich Union [1877] 2 QBD 269; Paras Ram v Emperor AIR 1931 Lah 145, pp 151
and 52; DebendraNarain Roy v Jogendra Narain Deb AIR 1936 Cal 593-617; Vedavalli Narasiah v Mangamma (1904)
ILR 27 Mad 538:
Page 4 of 4
A statute which may affect vested rights will not be read or understood as having retrospective effect unless there are clear
words in it or is capable of necessary intendment that retrospective effect is meant.
VCK Bus Service Pvt Ltd v Sethna AIR 1965 Mad 149 [LNIND 1964 MAD 271], (1965) ILR 1 Mad 136; Eapen Chacko v
Provident Fund Investment Co 1977 Ker LT 1 [LNIND 1976 SC 411] (SC).
End of Document
Jurisdiction of Court presumed to not be excluded
NS Bindra
Presumptions
Meaning of jurisdiction
The word jurisdiction does not connote form or manner in which the act is to be done but relates to the power, the
scope and the ambit of authority.7 It is well-known that whenever the legislature wants to confer upon any specified
authority the powers of a civil court in the matter of holding inquiries, specific provision is made in that behalf.8 In
Coljax Laboratories (I) Ltd v State of Goa,9 it was held that the court will not favour an interpretation which has the
effect of taking away the jurisdiction of the competent authority, unless the same is expressly provided for in law.
In the order of reference to a Full Bench in the case of Sukhlal v Tara Chand,10 it was stated that jurisdiction may
be defined to be the power of a court to hear and determine a cause, to adjudicate and exercise any judicial power
in relation to it; in other words, by jurisdiction is meant the authority by which a court has to decide matters that are
litigated before it or to take cognisance of matters prescribed in a formal way for its decision. An examination of the
cases in the books discloses numerous attempts to define the term jurisdiction, which has been stated to be the
power to hear and determine issues of law and fact; that authority by which the judicial officers take cognisance of
and decide causes; the authority to hear and decide a legal controversy; the power to hear and determine the
subject-matter in controversy between parties to a suit and to adjudicate or exercise any judicial power over them;
the power to hear, determine and pronounce judgment on the issues before the court; the power or authority which
is conferred upon a court by the legislature to hear and determine causes between parties and to carry the
judgments into effects; the power to inquire into the facts, to apply the law, to pronounce the judgment and to carry
it into execution.11
This jurisdiction of the court may be qualified or restricted by a variety of circumstances. Thus, the jurisdiction may
have to be considered with reference to place, value and nature of the subject matter. The power of a tribunal may
be exercised within defined territorial limits. Its cognisance may be restricted to subject matter of prescribed value. It
may be competent to deal with controversies of a specified character, for instance, testamentary or matrimonial
causes, acquisition of land for public purposes, record of rights as between landlords and tenants. This
classification into territorial jurisdiction, pecuniary jurisdiction and jurisdiction of the subject matter, is obviously of a
fundamental character. Given such jurisdiction, we must be careful to distinguish exercise of jurisdiction from
existence of jurisdiction; for fundamentally different are the consequences of failure to comply with statutory
requirements in the assumption and in the exercise of jurisdiction. The authority to decide a cause and not the
decision rendered therein is what makes up jurisdiction; and when there is jurisdiction of the person and subject
matter, the decision of all other questions arising in the case is but an exercise of that jurisdiction. The extent to
which the conditions essential for creating and reassign the jurisdiction of a court or the restraints attaching to the
mode of exercise of that jurisdiction, should be included in the conception of jurisdiction itself, is sometimes a
question of great nicety, as is illustrated by the decisions reviewed in the order of reference in Sukhlal v Tara
Chand,12Khosh Mahommad v Nazir Mohommad;13Raghunath v Sunder Das.14
In HridayNath Roy v Ram Chandra Barnasarma,15 it was held that the court trying the subsequent suit was not
competent to enter into the question whether the court which granted the plaintiff permission to withdraw the first
suit with liberty to bring a fresh suit had properly made such order. Where an order for withdrawal of a suit with
leave to institute a fresh suit, when circumstances do not fall within the scope of Order XXIII, Rule 1 of the Code of
Civil Procedure, 1908, is made, the order was not void. The court trying the latter suit could be treated as an order
Page 2 of 7
made without jurisdiction. Such an order was consequently not null and void. A fresh suit instituted upon leave so
granted is not incompetent. We must not thus overlook the cardinal position that in order that jurisdiction may be
exercised, there must be a case legally before the court and a hearing as well as a determination. A judgment
pronounced by a court without jurisdiction is void, subject to the well-known reservation that when the jurisdiction of
a court is challenged, the court is competent to determine the question of jurisdiction, though the result of the
enquiry may be that it has no jurisdiction to deal with the matter brought before it.16 Since jurisdiction is the power
to hear and determine, it does not depend either upon the regularity of the exercise of that power or upon the
correctness of the decision pronounced, for the power to decide necessarily carries with it the power to decide
wrongly as well as rightly. As an authority for the proposition, reference may be made to the celebrated dictum of
Lord Hobhouse in Malkarjun v Narhari:17
A court has jurisdiction to decide wrong as well as right. If it decides wrong, the wronged party can only take the course
prescribed by law for setting matters right; and if that course is not taken, the decision, however wrong, cannot be
disturbed.
Lord Hobhouse then added that though it was true that the court made a sad mistake in following the procedure
adopted, still in so doing the court was exercising its jurisdiction; and to treat such an error as destroying the
jurisdiction of the court was calculated to introduce great confusion into the administration of the law. There is a
clear distinction between the jurisdiction of the court to try and determine a matter, and the erroneous action of such
court in the exercise of that jurisdiction. The former involves the power to act at all, while the latter involves the
authority to act in the particular way in which the court does act. The boundary between an error of judgment, and
the usurpation of power is this: the former is reversible by an appellate court within a certain fixed time and is
therefore only voidable, the latter is an absolute nullity. When parties are before the court and present to it a
controversy which the court has authority to decide, a decision not necessarily correct but appropriate to that
question is an exercise of judicial power or jurisdiction. So far as the jurisdiction itself is concerned, it is wholly
immaterial whether the decision upon the particular question be correct or incorrect. Were it held that a court has
jurisdiction to render only correct decisions, then each time it made an erroneous ruling or decision, the court would
be without jurisdiction and the ruling itself void. Such is not the law, and it matters not what may be the particular
question presented for adjudication, whether it relates to the jurisdiction of the court itself or affects substantive
rights of the parties litigating, it cannot be held that the ruling or decision itself is without jurisdiction or is beyond the
jurisdiction of the court. The decision may be erroneous, but it cannot be held to be void for want to jurisdiction. A
court may have the right and power to determine the status of a thing and yet may exercise its authority
erroneously; after jurisdiction attaches in any case, all that follows is exercise of jurisdiction, and continuance of
jurisdiction is not dependent upon the correctness of the determination.
Consent cannot give Jurisdiction
But when in a cause, which the judge is competent to try, the parties without objective join issue and go to trial upon
the merits, the defendant cannot subsequently dispute his jurisdiction upon the ground that there were irregularities
in the initial proceedings, which, if objected to at the time, would have led to the dismissal of the suit.18
Statutory jurisdiction to be exercised subject to specified limitations
Where the jurisdiction of a court in certain matters is statutory, the court, however, admirable its intentions, is not
entitled to go outside those provisions, and in effect to legislate for itself.19 But where an Act confers jurisdiction on
a tribunal, it must be taken to have impliedly granted the power of doing all such acts or employing such means as
are essentially necessary to its exercise or execution.20
Consensual Jurisdiction
Where a consensual jurisdiction requires for its constitution the consent of all parties, the absence of consent,
whether due to unwillingness to consent or inability to consent, is fatal.21
Jurisdiction of Superior Courts
The old rule for jurisdiction is that nothing shall be intended to be out of the jurisdiction of the superior court but that
Page 3 of 7
which specifically appears to be so; nothing is intended to be within the jurisdiction of an inferior court but that which
is expressly alleged.22 The exercise of jurisdiction by the Supreme Court in India, it may, however, be noted, is
dependent upon and governed by the specific provisions of the Constitution. It cannot claim to exercise a
jurisdiction not vested in it under the provisions of the Constitution.
No Implied Authority to Deprive Superior Courts of their Jurisdiction
It is a well known rule of interpretation of provisions barring the jurisdiction of civil courts that they must be strictly
construed for the exclusion of the jurisdiction of a civil court and least of all the Supreme Court, is not to be lightly
inferred.23 There is not to be presumed without express words an authority to deprive the Supreme Court of a
jurisdiction which it had previously exercised or to extend the privative jurisdiction of the Supreme Court to the
inferior courts.24 The general presumption is against construing a statute as ousting or restricting the jurisdiction of
the superior courts.
Jurisdiction of Civil Courts
In Ramayya v Lakshmi Narayana,25 the Court was considering the ambit of Section 9 of the Civil Procedure Code,
1908. The Court held that the import of Section 9 was that civil courts would have jurisdiction to try all suits of a civil
nature excepting suits of which their cognisance is either expressly or impliedly barred. One general rule of law is
that when a legal right and an infringement thereof are alleged, a cause of action is disclosed and unless there is a
bar to the entertainment of a suit, the ordinary civil courts are bound to entertain the claim. Hence, according to the
Court, Section 9 laid down a general rule in favour of the jurisdiction of the civil court, and the burden of proof would
be on the party who pleads an exception to the general rule.
Presumption against the ouster of jurisdiction
If a statute purports to exclude the ordinary jurisdiction of civil courts, it must do so either by express terms or by the
use of such terms as would necessarily lead to the inference of such exclusion.26 When the language is doubtful,
the courts will lean against an ouster of the jurisdiction of the ordinary courts, except in cases which are clearly and
specifically indicated by the legislature.27 Any statute which encroaches on the jurisdiction of courts is subject to a
strict interpretation, and it is, therefore, expected that if such was the intention of the legislature, care should be
taken to manifest it, if not in express words, at least by clear indication and beyond reasonable doubt.28 Statutes
affecting the jurisdiction of civil courts are to be construed, as far as possible, in such a way as to avoid the effect of
transferring the determination of rights and liabilities from the ordinary civil courts to executive officers.29 It is an
accepted principle of statutory interpretation that when a right of suit is taken away and the remedy by way of
application is substituted, the prohibition in regard to the filing of the suit should be read as co-extensive with the
remedy that is provided. But at the same time, a statute which is in the form of a Code should be construed as
exhaustive on the subject dealt with. For that purpose, its express words should be given full effect, consistent with
the general scheme of the Act.30 In Prosunno Coomar Paul v Koylash Chunder Paul,31 Peacock CJ. said:
The jurisdiction of the ordinary courts of judicature is not to be taken away by putting a construction upon an Act of the
legislature which does not clearly say that it was the intention of the legislature to deprive such courts of their jurisdiction.
The right of a person to relief in a civil court is a common law right and so long as he can show a cause of action he can
bring a suit for redress.
In Jagannatha v Kathaperumal,32 the Court was considering a suit for cancellation of revenue sale of plaint items.
The appellant contended that a suit to set aside a sale in execution of a rent decree on the ground of fraud or
material irregularity in publishing and conducting the sale did not lie as such a suit was barred under Order XXI,
Rule 92 of the Code of Civil Procedure, 1908. The Court held that while the aforementioned Rule barred suits
relating to the execution of a rent degree, it did not mean that suits on fraud and irregularity were also banned as a
consequence. The Court held that an exclusion of the jurisdiction of civil courts ought to be read restrictedly, and
when the cases in which the right of action in a civil court is taken away are specifically mentioned in the Act, the
right of a party to seek relief in the civil court in other cases would not be necessarily taken away.
Courts Jurisdiction to Determine Jurisdictional Facts

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It is well-settled that a tribunal can investigate into the facts relating to the exercise of its jurisdiction when that
jurisdictional fact itself is in dispute. Where a tribunal is invested with jurisdiction to determine a particular question,
it is competent to determine the existence of the facts collateral to the actual matter which the tribunal has to try.
This power to decide collateral facts is the foundation for the exercise of its jurisdiction.33
New Right and Special Remedy
Sir Lawrence Jenkins CJ, observed:
It is an essential condition of those rights that they should be determined in the manner prescribed by the Act, to which they
owe their existence. In such a case there is no ouster of the jurisdiction of the civil courts, for they never had any; there is
no change of the old order of things; a new order is brought into being.34
Prima facie where the same statute creates a new right and specifies the remedy, the remedy is exclusive. The
natural presumption to begin with is that Parliament, in creating the novel right, attaches to it the particular mode of
enforcement as part of its statutory scheme.35 If statute has conferred a power to do an act and has laid down
method in which that power has to be exercised, it necessarily prohibits the doing of the act in another manner.36
Special Tribunal
When a special tribunal is constituted under a statute, its jurisdiction depends upon the specific provisions of the
statute. It may be limited by conditions as to its constitution, as to the person whom or the offences which it is
competent to try, and as to the orders which it is empowered to make, or by other conditions which the law makes
essential to the validity of its proceedings and orders. Where the special tribunal acts ultra vires, or refuses to
exercise it jurisdiction, or acts mala fide or arbitrary in the exercise of its jurisdiction, the civil court has power to
interfere and set matters right. The civil court is the final authority to determine the issue, whether the special
tribunal has or has no jurisdiction over a certain cause.37 Statutes creating special jurisdiction have, however, to be
strictly construed when their language is doubtful. A construction which would impliedly create a new jurisdiction is
to be avoided, especially where it would have the effect of depriving the subject of his full proprietary rights or of any
common law right or of creating an arbitrary procedure. But where a power has been conferred in unambiguous
language by a statute, the courts cannot interfere with its exercise and substitute their own discretion for that of
persons and bodies selected by the legislature for the purpose.38
In Manibhai v Arbuthnot,39 the Court had to rule on the jurisdiction of the Rent Controller under the Bombay Rents,
Hotel Rates and Lodging House Rates (Control) Act, 1944, and more specifically, whether the Rent Controller had
the jurisdiction to decide whether the appellant was a tenant or a licensee. The Court held that on the basis of the
provisions of the Act, the Rent Controller had jurisdiction to decide, whether a particular matter falls within his
jurisdiction, whether an applicant is a tenant or only a licensee in occupation of the premises. In this context, the
Court observed:
The tribunal owes its existence to the Act and not to any act of the parties, and it has, therefore, jurisdiction to determine
what are the cases which fall within its jurisdiction. If there is any dispute which arises between the parties as to whether
the particular application falls within the jurisdiction of the tribunal, it is the tribunal which is competent to decide that dispute
and determine whether the particular matter falls within its jurisdiction. If the tribunal decided it wrongly, there is an appeal
provided against its decision. It cannot, therefore, be contended, as the petitioners have done, that the respondent has no
jurisdiction to determine the question as to whether the premises were at one time let out as a whole and then let out in
parts as contended by the applicants.
Provision Making Performance Enforceable in a Specified Manner
This general rule is, however, subject to exceptions. It may be that, though a specific remedy is provided by the Act,
yet the person injured has a personal right of action in addition. That depends upon the scope and purpose of the
particular statute, in particular for whose benefit it is intended.40
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The principle is well-settled that when certain duties or conditions are imposed by a statute, when these duties or
conditions are not conditions precedent to the exercise of jurisdiction, they are subject to the maxim lex non cogit ad
impossibilia. They are understood as dispensing with the performance which is idle or impossible.
Prescribing Statutory Duty without Laying down Remedy
If a statutory duty is prescribed but no remedy by way of penalty or otherwise for its breach is imposed, it can be
assumed that a right of civil action accrues to the person who is affected by the breach. For if it was not so, the
statute would be wholly ineffectual.
Where Special Tribunal does not come into existence or neglects to function
If a special tribunal is constituted to adjudicate upon the rights created by a statute and if that tribunal functions,
then in that event, the jurisdiction of the civil court would stand ousted. But if that special tribunal never comes into
being or refuses or neglects to function, the jurisdiction of the civil court cannot be said to be ousted in that event.41
Mahajan J. observed:
If is not possible to hold, that though the statue has given a right and also prescribed a remedy for giving effect to that right
in case there is an infringement of that right yet if that remedy becomes merely illusory, in that event the right stands
defeated. To hold that though the plaintiff has statutory right yet he had no remedy in the situation that has arisen would
amount to a denial of the statutory right. I am unable to subscribe to such a position. The legislature did contemplate that
the right conferred by the statute was an enforceable right and they did contemplate a remedy for giving effect to that right.
But once that remedy becomes illusory and ineffective and the special tribunal refuses to function, in that eventuality it
cannot be said that the right which is of a civil nature stands defeated and cannot be enforced. In my opinion there is no
ouster of the jurisdiction of the civil courts till the special courts created by the statute function in accordance with the intent
and spirit of the statute. Mere contemplation of a tribunal is not enough.42
In Lachmi Chand v Rampratap,43 the local government failed to carry out its duty of appointing an election tribunal.
Terrell CJ said:
It cannot be supposed that the legislature contemplated that the government might deprive persons to whom it had given a
right, from having recourse to a tribunal to enforce that right and in such circumstances that subject has the right to proceed
in the ordinary civil courts, unless and until legislature carries out its duty of appointing a special tribunal. It is clear that
when this shall have been done, the jurisdiction of the civil court will be ousted.
The theory of conditional ouster is based on the assumption that the legislature creating the right could never intend
that the right should come into existence but that there should be no machinery for its enforcement. In Sultan Ali v
Nur Husain,44 Munir, ACJ. did not accept the correctness of the law laid down in the above cases. He observed:
If there is ouster, it must be held to be absolute and not dependent on the functioning of the special tribunal. The implied
ouster depends on the intention to be inferred from the fact that the statute does contain a provision for a Constitution of a
tribunal to which the enforcement of such right is entrusted. If there be such a provision, then it is wholly immaterial whether
the statute itself creates the tribunal or delegates to some other authority, and the authority does not act or the authority
having acted, the tribunal does not act. The intention of the legislature being the determining factor it is impossible to
suppose that when it directed another authority to create a special tribunal, it also envisaged and intended to provide for the
position created by that authoritys disobeying the direction or the tribunals refusal to function.
A similar view has been taken in Joti Prasad v Amba Prasad,45 where the court observed:
We find it difficult to believe that the legislature while providing that a tribunal appointed by the local government should be
seized of the matter, intended that the Civil Court should also have, so to say, dormant jurisdiction to decide the question
and that that jurisdiction is to become active the moment the local government refuses to appoint a tribunal. If the
legislature wanted not to bar the jurisdiction of civil courts and not to give exclusive jurisdiction to the tribunal appointed by
it, nothing would have been easier to give expression to such as intention by express words in the enactment.
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Avoidance of conflict of jurisdiction
In Jopson v James,46 Farewell, LJ. stated:
The existence of concurrent jurisdiction renders very necessary the observance of a comity between those jurisdictions the
disregard of which would lead to most unfortunate friction. Two points appear to me to be usual on considering whether the
court should have regard and defer to a jurisdiction with which it may come into conflict, or whether the court can fairly
expect that other jurisdiction to defer it. One is priority in time, and the other is the extent of the relief asked for or obtainable
in the other jurisdiction.
It is a matter of great public importance that there should be no conflict or clash of jurisdiction between two equally
competent authorities. Applying the principle, it was held in Bhabaprintananda v President, Bihar State Board of
Religious Trusts,47 that the expression religious trust in the title, preamble, and in Sections 2 (1) and 2 (3) of the
Bihar Hindu Religious Trusts Act, 1951, ought to be construed not in the plain and grammatical sense, but ought to
be cut down so as to exclude such religious trusts which were administered under a scheme prepared by court
outside the territorial limits of Bihar. The Court held that under the circumstances, the Bihar Act did not apply to
Baidyanath temple and the president had no jurisdiction to take any proceedings against the petitioner under any of
the sections of the Act. In the case of Gujarat Co-op Land Development Bank v PR Mankad,48 the Supreme Court
observed that if a court is incapable of granting the relief claimed, normally the proper construction would be that it
is incompetent to deal with the matter.
7 .Anwer Hussain v Ajoy Kumar Mukherji AIR 1959 Assam 28.
8 .Kasturi& Sons Pvt Ltd v N Salivatiswaran AIR 1958 SC 507 [LNIND 1958 SC 24].
9 .(1995) Goa LT 325.
10 . (1906) ILR 33 Cal 68, p 71.
11 . Reference may in this connection be made to the discussion of the nature of jurisdiction in Ashutosh v Behari Lal
(1908) ILR 35 Cal 61; Gurdeo v Chandrika (1909) ILR 36 Cal 193.
12 . (1906) ILR 33 Cal 68.
13 . (1906) ILR 33 Cal 352.
14 . (1915) ILR 42 Cal 72, p 83.
15 . AIR 1921 Cal 34, p 36, (1921) ILR 48 Cal 134, pp 140-50; MusajiLukmanji v Durga Das(1945) ILR Lah 281, p 289;
BepinBehary v Mohit Kumar Pal AIR 1942 Cal 496, p 498.
16 .Rashmoni v Ganoda 19 CWN 84.
17 . 27 IA 216, (1901) ILR 25 Bom 337, p 347.
18 .Ledgard v Bull (1887) ILR 9 All 203; Minakshi Naidu v Subramanya Sastri (1888) ILR 11 Mad 26, p 36.
19 .King-Emperor v Dahuraut AIR 1953 PC 89, p 91.
20 .Central Bank of India v PS Rajagopalan AIR 1964 SC 743 [LNIND 1963 SC 117]; SDO, Sadar, Faizabad v
Shambhoonarain Singh AIR 1970 SC 140 [LNIND 1969 SC 146].
21 .Hanna Eissa v Bishara Elias AIR 1944 PC 5-6.
22 .Brooms Legal Maxims, tenth edn, p 647; Peacock v Bell 1 Wmssoind 73; Gosset v Howard 2 Scott NR 39; Kinnging v
Buchanan 137 ER 513; Emperor v Noor Mohammad AIR 1928 Sind 1, p 11.
23 .Madhav Rao v Union of India [1971] 3 SCR 9 [LNIND 1970 SC 481], p 63, per Hidayatullah CJ, per Shah J.
Page 7 of 7
24 .Dunbar v Scottish County Investment Co 1920 STC 210 (English); Oram v Brearey [1877] 2 Ex D 346, p 348; Albon v
Pyke[1942] 4 M&G 421, p 424; Balfour v Malcolm[1842] 8 Cl& F 485, p 500.
25 . AIR 1934 PC 84, p 86.
26 .MagitiSasamal v Pandabbissoi AIR 1962 SC 547 [LNIND 1961 SC 305], p 549; following Secretary of State v Mask &
Co 67 IA 222, p 236, AIR 1940 PC 105 [LNIND 1940 PC 9], p 110; Manphool v Dulichand AIR 1969 Raj 169: exclusion
must bt made on clear and unambiguous terms; Nasib Singh v Raja Ram AIR 1969 J&K 9: bar of jurisdiction cannot be
spelt out by implied reasoning; Raja Ram Varma v State of Uttar Pradesh AIR 1968 All 369.
27 .Shivji Bhara & Co v Kanji Vasanji AIR 1949 Bom 337; Port of Madras v Bombay Co AIR 1967 Mad 318 [LNIND 1966
MAD 35]; MadhusudanTripathy v Bhagat Deb Goswami (1966) ILR Cal 661.
28 .Lalita Bai v Dominion of India AIR 1954 Bom 527.
29 .Gir Har Saroop v Bhagwan Din AIR 1935 Oudh 96, p 106.
30 .Yusuf Levaisaheb (Mhd) v Haji Mohommad Hussain Rowther AIR 1964 Mad 1 [LNIND 1963 MAD 60]: (1963) 2 Mad
LJ 287, 76 MLW 482.
31 . 8 WR 428, 436; Shewakram v Ghulam Sah AIR 1927 Sind 225, p 227.
32 . AIR 1927 Mad 1035 [LNIND 1927 MAD 226].
33 .JadduVeeraswami v Sub-Collector, Narasapur AIR 1975 AP 158 : (1975) 1 Andh WR 337.
34 .Bhai Shanker v Municipal Corpn, Bombay (1907) ILR 31 Bom 604, p 609.
35 .Pasmore v Oswaldtwistle Urban Council [1898] AC 387; CobarCorpn Ltd v Att-Gen for NSW 9 CLR 378, p 387.
36 State of Uttar Pradesh v Singhera Singh AIR 1964 SC 358 [LNIND 1963 SC 192]; Nazir Ahmad v King-Emperor (1936)
63 IA 372, AIR 1936 PC 253; Prem Singh v Sahayak Abhiyanta Sa Niva Upkhand Adhikari1993 All LJ 666.
37 .Royal Calcutta Turf Club v Kishen Chand Manchand AIR 1942 Lah 179.
38 .Balwant v Secy of State 7 Bom LR 497.
39 . AIR 1947 Bom 413; Mohesh Chandra Shaha v Abdul Gafur AIR 1946 Cal 435.
40 .Black v Fife Coal Co Ltd [1912] AC 149, p 165; VinayaNath v Bihar Journals Ltd AIR 1954 Pat 1, p 4.
41 .Sat Narain v Hanuman Parshad AIR 1946 Lah 85, p 91; Ganesh Mahadeo v Secy of State (1919) ILR 43 Bom 221;
Sarvothama Rao v Chairman, Municipal Council AIR 1923 Mad 475 [LNIND 1923 MAD 5]; Gopesh Chandra v
Benodelal AIR 1936 Cal 424; Lachmi Chand v Ram Pratap AIR 1934 Pat 670.
42 .Sat Narain v Hanuman Parshad AIR 1946 Lah 85, p 91.
43 . AIR 1934 Pat 670.
44 . AIR 1949 Lah 131, p 159. The observations were however, obiter.
45 . AIR 1933 All 358, 1933 All LJ 305, p 310.
46 . [1908] 77 LJ Ch 824.
47 . AIR 1954 Pat 262.
48 . AIR 1979 SC 1203 [LNIND 1979 SC 51], (1979) 3 SCC 1213.
End of Document
Presumption against Retrospectivity
NS Bindra
Presumptions
As a general rule, every statute is deemed to be prospective, unless by express provision or necessary implication
it is to have a retrospective effect. Whether a statute is to have retrospective effect depends upon its interpretation
haying regard to well-settled rules of construction.49 Retrospection is not to be presumed; but many statutes have
been regarded as retrospective without declaring so. Remedial statutes are always regarded as prospective, but
declaratory statutes are retrospective by nature.50 The statute would operate retrospectively when the intent that it
should so operate clearly appears from a consideration of the Act as a whole, or from the terms thereof, which
unqualifiedly give the statute a retrospective operation or imperatively require such a construction, or negate the
idea that it is to apply only to future cases. If the court is in doubt whether the statute was intended to operate
retrospectively, it should resolve the doubt against such operation.51 According to the Supreme Court:52
All laws which affect substantive rights generally operate prospectively and there is a presumption against their
retrospectivity if they affect vested rights and obligations unless the legislative intent is clear and compulsive. Such
retrospective effect may be given where there are express words giving retrospective effect or where the language used
necessarily implies that such retrospective effect is intended. Hence, the question whether a statutory provision has
retrospective effect or not depends primarily on the language in which it is couched. If the language is clear and
unambiguous effect will have to be given to the provision in question in accordance with its tenor. If the language is not
clear then the court has to decide whether in the light of the surrounding circumstance retrospective effect should be given
to it or not.
Black has summed up the rule in the following words:
Except in the case of remedial statutes and those which relate to procedure in the courts, it is a general rule that Acts of
legislature will not be so construed as to make them operate retrospectively, unless the legislature has explicitly declared its
intention that they should so operate, or unless such intention appears by necessary implication from the nature and words
of the Act so clearly as to leave no room for a reasonable doubt on the subject.53
In National Agricultural Cooperative Marketing Federation of India Ltd And Another v Union of India and Others,54
the Supreme Court clarified that there was no fixed formula for the expression of legislative intent to give
retrospective operation to an enactment. Every legislation, whether prospective or retrospective has to be subjected
to the question of legislative competence. Retrospective operation is liable to be decided on a few touchstones such
as: (i) the words used must expressly provide or clearly imply retrospective operation; (ii) such operation must be
reasonable and not excessive or harsh, otherwise it runs the risk of being struck down as unconstitutional; (iii)
where the legislation is introduced to overcome a judicial decision, the power cannot be used to subvert the
decision without removing the statutory basis of the decision.
In Tika Sao v Harilal,55 the Court had to decide whether provisions of Section 92 of the amended Transfer of
Property Act, 1882, could operate retrospectively. Section 63 of the Amending Act provided that select provisions of
the Act would not operate retrospectively; the Court interpreted this to mean that if the Legislature intended that
none of the provisions of the Amending Act ought to be retrospective, it would not have inserted a long and
elaborate list of provisions where retrospective operation would not happen. Instead, it would have been enough to
make a simple provision that none of the sections were to have retrospective effect or to make no provision
whatsoever in this respect. In the opinion of the Court, Section 63 was present to provide that the general rule that a
Page 2 of 3
new law would not ordinarily affect past transactions would not apply in this case. The Court held that the provision
could apply retrospectively, as the intention of the legislature was clearvide Section 63. The Court observed:
Unless there is something in the language, context, or object of an Act showing a contrary intention, the duty and practice
of courts of justice is to presume that the legislature enacts prospectively and not retrospectively.
Exception
Sometimes a statute, although not intended to be retrospective, will, as a matter of fact, have a retrospective
operation. Presumption against retrospective construction has no application to enactments which affect the
procedure and practice of the court,56 even where the alteration which the statute makes has been
disadvantageous to one of the parties. A person has only the right of prosecution or defense in the manner
prescribed for the time being, by or for the court in which he sues, and, if an Act of Parliament alters that mode of
procedure, he has no other right than to proceed according to the altered mode. A right of action is something
different from a choice of the forum. A litigant does not have a vested right to wait for a particular period of limitation
before instituting his suit. There is ordinarily no vested right in a trial in a particular forum or according to a particular
procedure but once the trial has begun according to the law which was in force on the date of the institution of the
action, certain other vested rights emerge, for instance, the right of appeal to a particular court or forum. In other
words, 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 career of the suit.57
Cockbum CJ. observed in Duke of Devonshire v Barrow Co:58
If two persons enter into a contract, and afterwards a statute is passed, which engrafts an enactment upon an existing
contract, and thus operates so as to produce a result which is something quite different from the original intention of the
contracting parties, such a statute has, as a matter of fact, a retrospective operation. Similarly, if a statute is passed which
renders the performance of a contract impossible, the rule of law is that the contract is cancelled; consequently, this statute
operates retrospectively.59
In Pratap Singh v State of Jharkhand,60 the Court was considering the repeal of the Juvenile Justice Act, 1986, by
the Juvenile Justice Act, 2000. The relevant portion of the repealing provision, Section 69, read as follows:
Notwithstanding such repeal, anything done or any action taken under the said Act shall be deemed to have been
done or taken under the corresponding provisions of this Act. The Court preliminarily observed that pending
proceedings under the 1986 Act were deemed to have been continued under the 2000 Act. Further, the relevant
portion of Section 20 read as follows: all proceedings in respect of a juvenile, pending in any Court in any area on
the date on which this Act comes into force in that area, shall be continued in that Court as if this Act had not been
passed. The question before the Court was whether the Act of 2000 would be applicable in the case a proceeding
initiated under 1986 Act and pending when the Act of 2000 was enforced. On the basis of the aforementioned
provisions, the Court held that the provisions of the 2000 Act would be applicable to those cases initiated and
pending trial/inquiry for the offences committed under the 1986 Act. In this context, the Court observed:
The embargo of giving a retrospective effect to a statute arises only when it takes away vested right of a person. By
reasons of Section 20 of the Act no vested right in a person has been taken away, but thereby only an additional protection
has been provided to a juvenile...
49 .Municipal Corpn v Charanjit Lal (1980) 82 PLR 7; GNarasa Reddy v Collector, Adilabad AIR 1982 AP 1 [LNIND 1981
AP 155].
50 .Sukhram Singh v Harbheji AIR 1969 SC 1114 [LNIND 1969 SC 81]; Uttar Pradesh State Electricity Board v Aryavart
Nirman Ltd(1989) All LJ 1386.
51 .Ram Perkash v Savitri Devi(1958) ILR Punj 87, p 91.

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52 .Punjab Tin Supply Co v Central Government AIR 1984 SC 87 [LNIND 1983 SC 300], (1984) 1 All RC 80 (SC), (1984)
1 SCC 206 [LNIND 1983 SC 300].
53 . Black, Construction and Interpretation of Law, second edn, p 385; Govind Das v Income-tax Officer (1976) 1 SCC 906
[LNIND 1975 SC 666]; Commissioner of Wealth-tax v Man Behadur Singh [1994] 208 ITR 658 Raj; B Vilasini v SRTC
AIR 1989 Ker 95 [LNIND 1988 KER 190], (1988) 1 Ker LJ 762, (1988) 1 Ker LT 915 [LNIND 1988 KER 190], (1988) 27
Reports 295, (1988) 2 TAC 331, 1988 ACJ 755, (1988) 2 ACC 584, (1989) ILR 1 Ker 116.
54 . (2003) 5 SCC 23 [LNIND 2003 SC 345].
55 .Tika Sao v Harilal AIR 1940 Pat 385; courts have tried to visualise the object which the legislature had in view in
introducing the section in the new enactment in order to find out whether any light could be thrown on the intention of
the legislature with a view to find out the meaning of the words employed: Jagdamba Prasad v Anandi Nath (1938) ILR
17 Pat 460, AIR 1938 Pat 337, p 350; the rule is applicable to the Constitution as well: Maloji Narsing Rao v Shankar
Saran AIR 1958 All 775 [LNIND 1957 ALL 157]; State of Kerala v Philomina AIR 1976 SC 2363 [LNIND 1976 SC 282].
56 .Tika Ram & Sons v Commr of Sales-tax,Uttar-Pradesh AIR 1968 SC 1286 [LNIND 1968 SC 80]; NirmaljitArora v
Bharat Steel Tubes Ltd AIR 1990 Del 160, (1991) 43 DLT 394, (1991) Rajdhani LR 151; KS Paripoonan v State of
Kerala AIR 1995 SC 1012.
57 .Unique Motor Ltd v Kartar Singh AIR 1965 Punj 102, pp 105-06, per Grover J.
58 . [1877] 2 QBD 286, p 289; NewIndia Assurance Co Ltd v Satyanathhazarika AIR 1990 Gau 26 [LNIND 1989 GAU 8];
Spedra Engineering Corpn Engineers and Contractors, Bhopal v State of Madhya Pradesh AIR 1988 MP 111, 1988 Jab
LJ 601, (1988) 19 Reports 282, (1988) 2 Arb LR 212.
59 . Craies, Statute Law, fifth edn, p 366; cases of frustrated contracts: Bank Ltd v Arthur Capet [1919] AC 435.
60 . (2005) 3 SCC 551 [LNIND 2005 SC 100]; Bijender Singh v State of Haryana, (2005) 3 SCC 685 [LNIND 2005 SC
299].
End of Document
Conclusion
NS Bindra
Presumptions
Conclusion
The presumptions which incorporate deference to legislative intention such as the presumption of statutory validity
seem to have greater hold than the presumptions which in some manner discipline such intention. Thus in PUCL v
Union of India61 other than the binding status of the Paris Principles, the Courts upheld the appointment of a police
officer as a member of the National Human Rights Commission because the statutory provision only required a
person having knowledge and experience of human rights and this formulation in no way ousted police officers.This
clear language of the Section the Court ruled cannot be distorted by any inference based on any public perception
or prejudice.
61 .PUCL v Union of India Writ Petition(civil) 105 of 2004 decided on 29th April 2005 AIR 2005 SC 2419 [LNIND 2005 SC
53], 119 (2005) DLT 401 (SC), JT 2005 (5) SC 28, (2005) 5 SCC 363, 2005 (2) UJ 993, (2005) 2 UPLBEC 1987.
End of Document
NS Bindra
Edition > PART II TECHNIQUES, TOOLS AND RULES OF INTERPRETATION > Chapter 5 Statute
and its Parts
Chapter 5 Statute and its Parts

Chapter 5 Statute and its Parts
End of Document
Introduction
NS Bindra
and its Parts
Introduction
A statute is the formal expression in writing of the will of the legislature in a state.1 A statute is a declaration of the
law as it exists or as it shall be from the time at which such statute is to take effect.2 It is usually called an Act of the
legislature. It expresses the collective will of that body. An enactment may mean something other than an Act of
parliament, but an Act means an Act of parliament.3 In other words enactment does not mean the same thing as
Act. Act means the whole Act, whereas section or part of a section in any Act may be an enactment.4 Allen states
as follows:
A statute is the highest constitutional formulation of law, the means by which the supreme legislature, after the fullest
deliberation, expresses its final will.5
Wilberforce opined:
Statute law may be properly defined as the will of the nation, expressed by the legislature, expounded by courts of justice.
The legislature, as the representative of the nation, expresses the national will by means of statutes. Those statutes are
expounded by the courts so as to form the body of statute law.6
Notwithstanding all the care and anxiety of the persons who frame Acts of parliament to guard against every event,
it frequently turns out that certain cases were not foreseen.7 Statute law and judge-made law are not the only laws.
There is something like a common or general law, the principles of which govern the making of judicial decisions
and which courts and tribunals state from time to time.8 The court, however, can only interpret the written statute,
and cannot undertake the responsibility of presuming an unwritten statute.9
1 . Bac Abe, seventh edn, vol VII, 1832, p 431; River Wear Commrs v Adamson [1876-77] 2 AC 743, p 763, per Lord
Blackburn:
The word statute has several meanings. It may mean what is popularly called an Act of parliament, or a Code such as the
Statute of Westminster the First, or all the Acts, passed in one session, which was the original meaning of the word.
R v Bakewell[1857] 7 E & B 846, pp 851 & 52, per Lord Campbell CJ; Maxwell, Interpretation of Statutes, twelfth edn, p 2.
2 .Halsburys Laws of England, fourth edn, Vol 44, para 801.
3 .Director, Public Prosecutions v Lamb [1941] 2 All ER 499, 506.
4 .Wakefield Co v Wakefield Corpn [1906] 2 KB 140, pp 145-46.
5 . Allen, Law in the Making, fourth edn, p 423.
6 .Statute Law, 1881, p 8; The interpretation approved by the Supreme Court of US; says Mcreynolds J, in Gulf & Co v
Masar 275 US 133, 72 L Ed 200; of an Act of Congress becomes an integral part of the statute.
7 .Farmer v Legg[1797] 7 TR 190, per Lord Kenyon CJ:

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Introduction
There is nothing so common in the framing of instruments as that whilst the framer of them is studious to avoid one
inconvenience, he incurs another which does not present itself to his view. This is often to be seen in Acts of
parliament.
Lord Nelson v Tucker [1802] 3 & Bros Pul 275, per Rooke J; quoted in Iyer, Law Lexicon, p 1215.
8 .Pankaj Kumar v Bank of India AIR 1957 Cal 560 [LNIND 1956 CAL 71], p 570.
9 .Thragesan Dharma Varikam v Commr of Income-tax AIR 1964 Mad 483 [LNIND 1962 MAD 224], 486, per Jagadisan
J: a general practice cannot take the place of a statutory obligation; Sivduttrai v Union of India AIR 1960 AP 406
[LNIND 1958 AP 84], 410, per Srinivasachari J: The statutory law does not justify the courts holding that the remedy of
an appeal should be gone through before applying for permission to sue.
End of Document
Text of the Statute and its Significance
NS Bindra
and its Parts
Text of the Statute and its Significance
The text of a statute as published in the Official Gazette must be taken to be the authorised text of the Act.10 If the
original Act is in Hindi, in cases of doubt and principally for the purpose of making an authentic interpretation of
such an enactment, the proper course is to look at the original Act as published in Hindi.11 When the Act is in
English and it uses English words, the recognised meaning of the expression which it carries in the English-
speaking world may alone be attributed to it. No extended meaning may be given to it even when used by the
Indian legislature.12 If the English and Hindi versions of the Act clash and give rise to a situation of conflict, the
English version ought to prevail when the Act was passed by the legislature in English, and there is no evidence to
prove the Act was passed by in Hindi, and not in English, or in both.13 However, where Hindi and English are both
authorised versions, it is permissible in case of a doubt to rely on the Hindi version.14
While deferring to the text of the statute, one must not lose sight of the fact that legislative enactments are just as
amenable to mistakes in drafting as executive orders are. The judiciary attaches great importance to the language
of the statute because of the formality attached to it, the care with which it is expected to be drafted, and its scrutiny
at every stage. However, this rule may be derogated from, and the courts have read words into a statute and filled
up omission in the past, and in extraordinary circumstances, have held that a word found in a statute has been
inducted by mistake for another.15
10 .Bhagat Govind Das v Rup Kishore ILR 4 Lah 367; on appeal from Rup Kishore v Bhagat Govind Das AIR 1922 Lah
211; latter case not followed in Sheodoyal v Joharmull, AIR 1924 Cal 74, ILR 50 Cal 549, per Page J: but it was
approved and followed in Sanwal Das v Jaigo Mal AIR 1924 Lah 68; Arjun Das v Nanak Chand AIR 1925 Lah 98; AG
Skinner v Mukarram Ali AIR 1925 All 77; Mumtazul-Daula Mukarram Ali v Skinner ILR 47 All 335, AIR 1925 All 263:
application for leave to appeal to Privy Council; Ata-ur-Rahman v Mashkur-un-nisa AIR 1926 Lah 474; Subramania
Aiyar v Shanmugam Chettiar AIR 1926 Mad 65: Rai Brijnandan v Mahabir Prasad AIR 1927 Pat 142.
11 .HLM Biri Works v Sales-tax Officer AIR 1959 All 208, p 210; Mata Badal Pandey v Board of Revenue 1976 All LR 393.
12 .Delhi Mistanna Bhandar v State of Assam AIR 1957 Assam 31.
13 .Jameel Ahmad v Anant Singh AIR 1957 Pat 241, p 243, per Raj Kishore Prasad J.
14 .MangiLal v Board of Revenue, Madhya Pradesh 1983 PLJ 254 (FB); Haji Lal Mahommad Biri Works v Sales-tax
Officer AIR 1959 All 208; JK Jute Mills co Ltd v State of Uttar Pradesh AIR 1961 SC 1534 [LNIND 1961 SC 180].
15 .Subhashini v State of Mysore AIR 1966 Mys 40.
End of Document
Parts of Statutes
NS Bindra
and its Parts
Parts of Statutes
A statute consists of several parts:
(I) Title
(II) Title of a Chapter
(III) Preamble
(IV) Interpretation Clause
(V) Headings
(VI) Marginal Notes
(VII) Sections
(VIII) Punctuations and Brackets
(IX) Illustrations
(X) Proviso, Exception and Saving Clause
(XI) Explanation
(XII) Schedules
(XIII) Forms
(XIV) Erratum
End of Document
Title of the Statute
NS Bindra
and its Parts
The title of an Act is not conclusive of the intent of the legislature but constitutes only one of the numerous sources
from which assistance may be obtained in the ascertainment of that intent in cases of doubt. It is, at best, indicative
of the legislative intent.16 It will not supply defects, or omissions in the enacting part, but may be resorted to as an
aid in the ascertainment of the legislative intent where the meaning is uncertain by reason of the use of general
language of indefinite significance or of words of doubtful import.17 Reference to the long or short title of a statute
for purposes of interpretation ought to be secondary to reference to the enacting part, for the title may be
colourless, or the Act may deal with subjects not expressed in the title.18 If the language of the Act is plain, the
courts cannot refuse to give effect to it generally because it happens to go beyond the matters mentioned in the
title. When there is no doubt as to the construction to be put upon the word of a section, the court cannot limit its
construction because of the title of the Act, though the said construction clearly exceeds the scope of both the title
and the preamble.19
However, where the language of the Act is ambiguous, the title can be usefully referred.20 Where an Act uses
ambiguous language, one is entitled to look at the title of the Act with a view to give the doubtful language in the
body of the Act, a meaning consistent rather than at variance with the clear title of the Act.21 Hence, if the statute is
ambiguous, the title may be considered as an aid in ascertaining the legislative intent.22 While the title of an Act or
a section heading will not limit the plain meaning of the text, it may be of aid in resolving an ambiguity.23
An illustration of it may be found in the case of Shaw vRuddin,24 where the Court had to decide the applicability of
the Dublin Carriage Act 1853 i.e. whether it applied to a cart used for private purposes only. The title of the Act was
An Act to consolidate and amend the laws relating to hackney and stage carriages, also job carriages and horses
and carts let for hire within the police district of Dublin. Lefroy, CJ observed:
Now the title of the Act shows that the legislature intended to make regulations with respect to carriages and other vehicles
let for hire. It is quite true that, although the title of an Act cannot be made use of to control the express provisions of the
Act, yet if there be in these provisions anything admitting of doubt, the title of the Act is a matter proper to be considered, in
order to assist in the interpretation of the Act, and thereby to give to the doubtful language in the body of the Act a meaning
consistent rather than at variance with the clear title of the Act.
Long Title
In Union of India v Elphinstone Co Ltd.,25 the Court compared the value of the long title and the preamble of an Act
for purposes of construction. The Court held that the long title precedes the preamble and was thus a part of an Act.
This made the long title an admissible aid to construction. Hence, the long title of an Act along with its preamble or
without it served as a good guide regarding the object, scope or purpose of the Act. The Supreme Court, through
many decisions, has recognised the fact that the policy and purpose of a given measure may be deduced from the
long title and the preamble thereof.26
In MP Rural Road Development Authority v M/S. L.G. Chaudhary Engineers,27 the question before the Court was
whether the provision of Madhya Pradesh Madhyasthan Adhikaran Adhiniyam, 1983, which statutorily provided for
the parties to a works contract to refer all disputes to an Arbitration Tribunal constituted under Section 7 of the Act
Page 2 of 3
would continue to operate in view of the provisions of Arbitration and Conciliation Act, 1996, which was a
subsequently enacted Central Act. The Court held that there was no repugnancy between the enactments, as the
MP Act provided for compulsory arbitration in a specific area of disputes, whereas the Arbitration Act sought to
provide a voluntary procedure for all disputes. In arriving at this decision, the Court relied on the long title of the Act
and held as follows:
It is clear from its long title that the M.P. Act provides for the establishment of a tribunal to arbitrate in disputes to which the
State Government or a public undertaking [wholly or substantially owned or controlled by the State Government], is a party,
and for matters incidental thereto or connected therewith. The structure of the tribunal under the M.P. Act is also different
from the structure of a tribunal under the A.C. Act 1996.
Short title
According to Lord Thoring, every Act of parliament should have a short title, ending with the date of the year in
which it is passed.28 The title of an Act being a part of the Act, it is legitimate to use it for the purpose of
interpreting the Act as a whole and ascertaining its scope.29 However, a caveat has been placed in the use of the
short title of the Act in interpretation by the Court in Debendra Narain Roy v Jogendra Narain Deb30 where the
Court held that while it was appropriate to use the full title of an Act to shed light upon its scope and applicability,
the same sort of legitimacy and weight could not be accorded to the short title of the Act, which was chosen merely
for the sake of convenience, its object being identification and not description. In that case, the Court had to
consider the scope of application of the Bijni Succession Act, 1931. The Court observed as follows:
The short title is the Bijni Succession Act 1931, the long title is, An Act to regulate the succession in the Bijni Raj. The full
title must not be neglected or disregarded and it may be some guide to the meaning.
Modern statutes generally contain a section enacting that the Act may be cited by some short title. The short title is,
however, given to the Act solely for the facility of reference. In the words of Lord Moulton: It is a statutory nickname
to obviate the necessity of always referring to the Act under its full and descriptive title.31
16 . Re EM Chacko (1954) 2 MLJ 737; Mangilal Karwa v State of Madhya Pradesh AIR 1955 Nag 153.
17 . Crawford, Statutory Construction,art 206, 359.
18 .Craies on Statute Law, fifth edn, pp 182-83.
19 .Wilmot v Rose (1854) 23 LJQB 281; Sage, v Eicholz [1919] 2 KB 171, 176-77; Re EM Chacko (1954) 2 KLJ 737;
Mangilal Karwa v State of Madhya Pradesh AIR 1955 Nag 153.
20 .Surendra Kumar Goel v State Transport Appellate Tribunal [1979] 5 All LR 599. .
21 . Re EM Chacko(1954) 2 Mad LJ 737; Mangilal Karwa v State of Madhya Pradesh AIR 1955 Nag 153.
22 .Coomber v Justices of Berks [1882] 9 QBD 17, pp 32-33, per Huddleston B; Briggs v Walker 171 US 466, 43 L Ed 248;
US v Katz 271 US 354, 70 L Ed 986; Bonnerjee, Interpretation of Deeds, Wills and Statutes, 1909, 203; but the title
may not be used as a means of creating an ambiguity when the body of the Act is clear: Sutherland, Statutory
Construction, third edn, Vol 2, art 4802, p 344; Duncan v Theodore 23 CLR 510, p 538.
23 .D.K.V. Prasada Rao v State of Andhra Pradesh, AIR 1984 AP 75 [LNIND 1983 AP 117]; Maguire v Commr of Inland
Revenue 313 US 1, 85 L Ed 1149; Federal Trade Commrv Mendel Bros 359 US 385, 3 L Ed 2nd 893, p 897.
24 .[1859] 9 IR CLR 214; Powell v Kempton Park Race Course Co [1897] 2 QB 242, p 260, per Lopes LJ.
25 . (2001) 4 SCC 139 [LNIND 2001 SC 2915].
26 . Re Kerala Education Bill AIR 1958 SC 956, p 974; Bishambar Singh v State of Orissa [1954] SCR 842 [LNIND 1953
SC 122], p 855.
27 . (2012) 3 SCC 495 [LNIND 2012 SC 73]

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28 .Practical Legislation, p 37.
29 .Vacher& Sons Ltd v London Society of Compositors [1913] AC 107,p 128: prior to 1854, title of a statute was not a part
of the statute in England but now forms part of a statute.
It was observed:
I read the title advisedly, because now and for some years past the title of an Act of parliament has been part of the Act. In
old days it used not to be so, and in the old law books we were told not so to regard it, but now the title is a important
part of the Act and is so treated in both Houses of parliament.
Fielding v Morley Corpn [1899] 1 Ch 1, per Lindley MR; State v Hyder Ali AIR 1955 Hyd 128; Aswini Kumar Ghose v
Arbinda Bose AIR 1952 SC 369 [LNIND 1952 SC 94].
30 . AIR 1936 Cal 593.
31 .Vacher& Sons Ltd v London Society of Compositors [1913] AC 107, p 128.
End of Document
Title of a Chapter
NS Bindra
and its Parts
Title of a Chapter
The title of a chapter in a statute is not a determining factor regarding the interpretation of the provisions of a
section in the chapter, but the title certainly throws considerable light upon the meaning of the section, and where it
is not inconsistent with the section, one should presume that the title correctly describes the object of the provisions
of the chapter.32
In Tara Pd vUnion of India,33 the Court held:
Titles of chapters cannot take away the effect of the provisions contained in the Act so as to render those provisions
legislatively incompetent; if they are otherwise within the competence of the legislature to enact.
32 .Dwarka Prasad v BK Roy AIR 1950 Cal 349, per Sen J.
33 .Tara Pd v Union of India AIR 1980 SC 1682 [LNIND 1980 SC 234], (1980) 4 SCC 179 [LNIND 1980 SC 234].
End of Document
Preamble
NS Bindra
and its Parts
Preamble
It cannot be doubted that the preamble precedes the words of enactment, and is in the nature of a recital of the
facts operative in the mind of the law given in proceeding to enact. It is one of the cardinal principles of construction
that where the language of an Act is clear, the preamble must be disregarded though, where the object or meaning
of an enactment is not clear, the preamble may be resorted to, to explain it. Again, where general language is used
in an enactment which, it is clear, must be intended to have a limited application, the preamble may be used to
indicate to what particular instances the enactment is intended to apply. We cannot, therefore, start with the
preamble for construing the provisions of an Act, though we would be justified in resorting to it, and, we will be
required to do so if we find that the language used by Parliament is ambiguous or is too general though in point of
fact, Parliament intended that it should have a limited application.34 Aid of the preamble can be taken only when
there is some doubt about the meaning of the operative part of the Act,35 which have to be given effect to even
when they go beyond the preamble.36 Where the enacting part is explicit and unambiguous, the preamble cannot
be relied upon, to control, qualify or restrict it.37 Where the enacting words are clear, the preamble cannot operate
to restrict that meaning.38 The preamble cannot limit or change the meaning of the plain words of a statutory
provision.39 Where the words of the enacting clause are more broad and comprehensive than the words of the
preamble, the general words in the body of the statute, if free from ambiguity, are not to be restrained or narrowed
down by particular and less comprehensive recitals in the preamble. The preamble can be used only as an aid to
the interpretation of the provisions of the Act itself, and it cannot be held that, if any particular provisions of the Act
are not covered by the brief language of the preamble, the legislature did not intend to make provision for purposes
which can clearly be inferred from those provisions of the Act though not mentioned in the preamble.40 As stated
by Dewaris,41the preamble of a statute is no more than a recital of some inconvenience, which by no means
excludes any others for which the remedy is given by the enacting part to the statute.42 In Thayarammal vJunus
Chettiar, Pandurange J held:43
If the legislature has thought fit to give protection to tenants, and the protection given extends to persons other than those
whom a strict interpretation of the preamble will embrace, it is not open to the courts to question the right of the legislature
to go beyond what was stated in the preamble as the reason for legislation. The legislature may very well have done
actually a little more than what it started to do.
The utility of the preamble diminishes on a conclusion as to clarity of enacting provisions. Preamble is not to
influence the meaning otherwise ascribable to the enacting parts unless there is a compelling reason for it.44
Regarding the use which can be made of the preamble in interpreting an ordinary statute, there is no doubt that it
cannot be used to modify the language, if the language of the enactment is plain and clear. If the language is not
plain and clear, then the preamble may have effect either to extend or to restrict the language used in the body of
an enactment.45 Neither the preamble nor the supposed object of an Act can control the express language of the
statute. They merely afford help in the matter of construction if there is any ambiguity. Where the language is clear,
the court is bound to give it effect. If there is some ambiguity and if more than one construction is possible, the court
accepts the one which is consistent with the objects of the Act as explained by the preamble.46 Where the enacting
part of the statute is not exactly co-extensive with the preamble, the former, if expressed in clear and unequivocal
terms, will override the latter.47 The words of operating sections of the Act must be given effect to irrespective of
inferences to be drawn from the preamble if the words themselves are clear, and capable of only one meaning.48
However, eminent lawyers have considered the preamble to be undoubtedly a part of the Act, a key to open the
meaning of the makers of the Act and mischief it was intended to remedy.49 The title and preamble whatever their
value might be as aids to the construction of a statute, undoubtedly throw light on the intent and design of the
legislature and indicate the scope and purpose of the legislation itself,50 but the amended note should always be
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Preamble
strictly confined to its preamble and the provisions contained therein.51 Aid can be taken from the preamble which
denotes the policy and the object behind the Act, in order to control the otherwise wide language used in any
section of the Act conferring executive powers and it will be legitimate to construe the same as being confined in its
ambit and exercisable to the extent and in a manner so as to fulfil the object.52 According to Crawford:53
It is an excellent aid to the construction of an ambiguous statute or statutes of doubtful meaning or as has been said it is a
key to the construction of a statute and should be resorted to unlock the mind of the makers.
Maxwell opines as follows:
The preamble of a statute has been said to be a good means of finding out its meaning, and, as it were, as key to the
understanding of it. Besides, as it usually states or professes to state, the general object and intention of the legislature in
passing the enactment, it may legitimately be consulted to solve any ambiguity, or to fix the meaning of words which may
have more than one or to keep the effect of the Act within its real scope, whenever the enacting part is in any of these
respects open to doubt.54
When an Act does not purport to enact the material provisions for the first time, but it purports to continue the
previously existing provisions in that behalf, it would be legitimate to consider the preamble of the predecessor Act
and relevant provisions in it to find out whether the legislature has laid down clearly the policy underlying that Act,
and has enunciated principles for the guidance of those to whom the authority to implement the Act has been
delegated.55
Sir John Nicholl observed in the case of Brett vBrett:56
The key to the opening of every law is the reason and spirit of the lawit is the animus imponents, the intention of the law-
maker expressed in the law itself taken as a whole. Hence to arrive at the true meaning of any particular phrase in a
statute, that particular phrase is not to be viewed detached from its context in the statute, it is to be viewed in connection
with its whole context meaning by this as well as the title, and the preamble as the purview or enacting part of the statute. It
is to the preamble more specially that we are to look for the reason or spirit of every statute, rehearsing it, as it ordinarily
does, the evils sought to be remedied, or the doubts purported to be removed by the state, and so evidencing in the best
and most satisfactory manner, the object or intention of the legislature in making and passing the statute itself.
In Pirji Safdar Ali v Ideal Bank Ltd, Mahajan, J. held:57
It is therefore a matter for inquiry whether in the interpretation clause, any of these expressions would have been defined if
they were not intended to be an important part of the statute. If these definitions were not an important part of the statute,
then what was the object with which the legislature enacted s 2 of the Act? As the statute is silent on this subject, and the
matter is not free from ambiguity, therefore in order to find an answer to this question, it becomes necessary to refer to the
preamble which has been cited above.
Preamble resorted to in two classes of cases
Now it is well-settled that the terms of a preamble maybe resorted to in two classes of cases. The first class is
where the text of the statute is susceptible to different constructions. The second class of cases is that if general
language is used in an enactment, which, it is clear, must have been intended to have some limitation put upon it,
the preamble may be used to indicate to what particular instances the enactment is intended to apply. That is to
say, that in some cases it may be permissible to control the scope of the enactment by the terms of the
preamble.58
The Supreme Court tersely stated:
Whether it is the Constitution that is expounded or the constitutional validity of a statute that is considered, a cardinal rule is
to look to the preamble to the Constitution as the guiding light and to the directive principles of state policy as the book of
interpretation.59
In Sardha Ram vParas Ram,60 the Punjab and Haryana High Court observed as follows:
The preamble can, no doubt, neither cut down nor restrict nor extend or enlarge the enacting part when the language,
scope and object or such part are clear and unambiguous. The preamble has always been described to open the mind of
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Preamble
the makers of the law and it constitutes a good means of finding out the meaning of the statute, as if it were a key to the
understanding of it...The preamble may thus be legitimately consulted in order to keep the true effect of the enactment
within its intended scope and object, provided of course there is reasonable doubt about its precise and true scope and
effect.
Whilst a statement in the Preamble of a statute as to its ultimate objective may be useful in throwing light on the
nature of the matter legislated upon and must undoubtedly be taken into consideration, it cannot be conclusive on
the question of vires, where the legislature concerned has power to legislate on certain specified matters only.61
The Court held differently in Darbar Patiala v Narain Das.62 The Court was considering the vires of the U.P.
Encumbered Estates Act, 1934, as it applied to suits filed by Darbar Patiala in Sahranpur. The preamble of the Act
was invoked by the petitioner, to which the Courts response was as follows:
The preamble may be consulted to keep the effect of the Act within its real scope with the object of explaining or elucidating
its provisions or for the purpose of keeping it within its proper limits to which its general language may be found to have
been intended to apply. However, it must be admitted that this can only be done when its enabling provisions are open to
doubt or when giving full effect to their meaning, a court may be faced with the situation of having to express against its
validity, e.g., on the ground of its being ultra vires of the body which passed it. In short, the preamble may be looked at with
the object of finding out the mischief which it was intended to prevent or suppress, although it cannot ordinarily be invoked
to control or restrict the scope of such of its provisions as the legislature was competent to make. On a consideration of the
preamble and the provisions of the Act, the Court read down certain provisions of the Act and declared the rest ultra vires
the power of the Provincial legislature.
In Anil Kumar vDy. Commr.63 the Court was dealing with the constitutionality of the Assam Fixation of Ceiling on
Land Holdings Act, 1956. In the course of arguments, it was argued that the purpose of the Act i.e. ceiling on land
holdings was evident from the preamble. The court disagreed with the reliance on the preamble, and held as
follows:
..but the preamble alone cannot be held to be conclusive of the intent and purpose of the legislation. The object, purpose
and intent of the legislation have to be gathered from the various provisions of the statute itself and not merely from an
isolated examination of the preamble, which may indicate the primary object in view, but may not refer in detail to certain
other objects, which are incidental and essential to the working out of the primary object of the legislation.
In Chintapalli Achaiah v Gopala Krishna Reddy,64 the Court was examining the constitutional validity of
classification made under Section 32 (b) of Andhra Pradesh Buildings (Lease, Rent and Eviction) Control Act, 1960.
The petitioner sought to rely on the preamble of the Act to establish that there was no reasonable nexus between
the object of the Act and the classification made. The court disagreed with the petitioners reliance on the preamble
to gauge the purpose of the Act. In repelling the petitioners contention, the Court observed as follows:
It is true that a preamble to a statute is a prefatory explanation or statement which purports to state the, reason or occasion
for making a law or to explain in general terms the policy of the enactment. At the same time it cannot be lost light of, that
the preamble is “no part of the law”. It cannot therefore, either enlarge or abridge the scope, purpose or policy of the
statute. The preamble can certainly be called in aid to interpret the purpose of the enactment as it is considered “a key to
open minds of the makers of the Act and the mischief which it intended, to redress”. Unfortunately however the preamble is
not always true, accurate and complete and if it is allowed to control any enacting part of the Act, many hardships and
some absurdities are likely to result. The preamble may therefore provide one of the several valuable intrinsic aids to find
out the purpose of the Act. Yet if it is not consistent or complete, the intention or purpose of the legislation can as well be
gathered from the provisions of the Act. By this mode we would be giving equal weight to all parts of the Act including the
preamble. It is thus plain that the preamble cannot control the enacting part of the statute in cases where the enacting part
viz., any provision, is expressed in clear and unambiguous terms leaving no doubt in the minds of the Courts.
In Kedar Nath Bajoria v State of West Bengal,65 while dealing with the validity of the West Bengal Criminal Law
Amendment (Special Courts) Act 1949, Sastri, CJ.. observed:
The real issue, therefore, is whether having regard to the underlying purpose and policy of the Act as disclosed by its title,
preamble and provisions as summarised above the classification of the offences, for the trial of which the special court is
set up and a special procedure is laid down, can be said to be unreasonable or arbitrary and therefore, violative of the
equal protection clause.
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Preamble
In St Johns Teacher Training Institute v Regional Director, NCERT,66 the Supreme Court relied upon the preamble
of the National Council of Teacher Education Act, 1993 which purported that the Act had been enacted to achieve
planned and coordinated development of the teacher education system and also the regulation and proper
maintenance of norms and standards therein. Relying on the preamble and its stress on regulation and
maintenance of norms and standards, the Court upheld the validity of regulations which required institutions to
obtain No Objection Certificates from the State Government before an application for starting a teacher training
course could be entertained by the regional director.
In Chandriah v Civil Admn,67 the Preamble of the Defence of Hyderabad Regulations read as follows:
Whereas an emergency has arisen which renders it necessary to provide for special measures to ensure the public safety :
and interest and the defence of H.E.H. the Nizams Dominions...Now, therefore, H.E.H. is pleased to make and promulgate
the following Regulation.....
The Court held that while the Preamble was limited in its language to the defence and safety of the territories under
the Nizams rule, the language of the preamble would not restrict the scope of measures taken under the provisions
of the Act. Hence, even if the regulation extended far beyond the scope of merely the defence of Hyderabad, the
preamble could not be invoked to limit it.
In Rajmal v Harnam Singh,68 a conflict arose as the preamble of Punjab Custom (Power to Contest) Act, 1920,
stated inter alia:
Whereas it is expedient to enact certain restrictions on the power of descendants or collaterals to contest an alienation of
immovable property...on the ground that such alienation...is contrary to custom.
While Section 6 of the Act provided inter alia:
Subject to the provisions contained in s 4 and notwithstanding anything to the contrary contained in Section 5, Punjab Laws
Act 1872, no person shall contest any alienation of ancestral immovable property...on the ground that such alienation...is
contrary to custom unless such person is descended in male lineal descent from the great-grandfather of the person
making the alienation....
The Court held that if Section 6 was to be literally interpreted, the plaintiff had no locus standi to sue. If, on the other
hand, that section was to be controlled and qualified by the preamble, then the Act was inapplicable to the plaintiff
and whatever rights he possessed under the contrary law, they were still left intact. It was held that the Act has the
effect of limiting the right to contest an alienation of ancestral land only to those persons who are descended in the
direct male line from the great-grandfather of the alienor.
Munna vUnion of India69 concerned itself with Section 32 of the Prisoners Act, 1900, which provided the procedure
for confinement and appointing places for confinement of people punished with transportation. Under this section,
the Government was empowered to appoint places to detain such people undergoing the sentence. In 1955, the
IPC was amended to delete the punishment of transportation and instead of that life imprisonment was introduced.
However, this section was not amended in 1955 and the term transportation still continued to be in the enactment.
The appellant had undergone 21 years of detainment prior to the award of the sentence in the jail. The Court
subsequently found him guilty of the offence and sentenced him to life imprisonment. He contended that the
imposition of the life sentence was not sustainable. The appellants argument was that the punishment of life
imprisonment was impossible to be carried out because the Government had not appointed any place for the
detention under the Prisoners Act and because of this a sentence of life imprisonment was illegal and could not be
carried out. He further argued that he could not be detained in a jail during the term of his sentence as it was not
designated by the Government as a place under Section 32 . The Supreme Court relied on the preamble of the
Prisoners Act 1900, which stated that it was a law to consolidate the law relating to prisoners confined by order of a
court, and rejected this contention.
Presumption in Case of a Consolidating Act
As the preamble shows that it was a consolidating Act, the presumption is that such an Act is not intended to alter
the law. If the words are capable of more than one construction, then the court will give effect to that construction,
which does not change the law.70
Page 5 of 7
Preamble
Rules Regarding Use of Preamble Summed Up
The use of the preamble in the interpretation of a statute may be summed up as under:71
(i) whether the purpose for which a preamble is framed to a statute is to indicate what in general terms was
the object of the legislature in passing the Act;
(ii) where the preamble cannot be invoked to determine the vires of an Act;
(iii) where the enacting words of a statute may be carried beyond the preamble if words found in the former are
strong enough for the purpose;
(iv) where the enacting part of a statute is couched in clear and unequivocal language, the preamble cannot
control, restrict, qualify, alter, detract from or add to the enactment.72
(v) where the general terms of the preamble do not indicate or cover all the mischief which are found to be
provided for in the enacting provisions of the Act itself, the enacting provisions would override the
preamble;73
(vi) where the preamble provides for a wider mischief that the sections, the courts are not to give those
sections a wider scope than their language, properly interpreted, justify; Absolute sentential expositors non
indiget. There is no necessity to explain that which requires no explanation. The office of the judge is jus
dicere and not jus dara, ie, to interpret the law and not make it;
(vii) where radical amendments are effected in an Act showing a different intention to that expressed in the Act,
the fact that the preamble has not been amended does not in any way, indicate that the legislative intention
is unchanged.74 But the preamble of an amending Act cannot limit or change the meaning of the plain
words in the Act so amended;75
(viii) where the text of the statute is susceptible of different constructions, help may be taken from the preamble
for the purpose of explaining, containing, or even extending enacting words;
(ix) where it is clear that the very general language used in the enactment must have some limitation, help
maybe taken from the preamble.
34 .Burrakur Coal Co v Union of India AIR 1961 SC 954 [LNIND 1961 SC 55]; Income-Tax Officer, Kanpur v Mani Ram
AIR 1969 SC 543 [LNIND 1968 SC 222]; Kishore Chandra Patel v State of Orissa AIR 1993 Ori 259 [LNIND 1993 ORI
130].
35 .Rahman Shagoo v State of Jammu and Kashmir AIR 1958 J&K 29, p 33; Arunachelam Chettiar v Annamalai
Chettiar(1961) ILR Mad 1113, 74 MLW 593.
36 .Rehman Kunju v State of Kerala 1968 SCD 552.
37 .Attorney-General v Prince Earnest Augustus [1957] AC 436, pp 460 and 463, per Viscount Simon J.
38 .Balkishan v Fatuabui AIR 1938 Nag 298.
39 .Motipur Zamindary Co v State of Bihar AIR 1962 SC 660 [LNIND 1961 SC 358], p 663; Renuka Bala v Aswini Kumar
AIR 1961 Pat 498; Kangra Valley State Co v Kedar Nath AIR 1961 Punj 540.
40 .Tej Bahadur v State AIR 1954 All 655 [LNIND 1954 ALL 102]: not a compelling reason, if enacting words go
somewhat further than the preamble indicates; Mukhtiar Chand v Marketing Committee AIR 1955 Punj 33, p 36, per
Dua J.
41 .Dewaris on Statutes, Potters edn, p 108.
42 .Gopi Krishna Roy v Raj Krishna Rai 6 IC 259, p 261 (Cal); quoting Copeman v Gallant 1 P Wins 314; King v Pierce 3
M&S 62, p 66; Copeland v Davies LR 5 HL 358; Fellous v Clay 4 QB 313, p 349; NgaHoong v Queen 7 MIA 72; Chinna
Aiyar v Mohammad Fakruddinsaib 2 MHCR 322; Queen-Empress v Indrerjit 11 All 262; Vithu v Govinda 22 Bom 321, p
327; Rasbihari v State of Orissa AIR 1968 Ori 189, p 193, per Berman CJ; All Saints High School v Govt of Andhra
Pradesh AIR 1980 SC 1042 [LNIND 1980 SC 49], (1980) 2 SCC 478 [LNIND 1980 SC 49], (1980) 2 SCJ 273,(1980) 1
Ser LR 716 (SC),.
43 . AIR 1936 Mad 844 [LNIND 1936 MAD 134], p 848.
Page 6 of 7
Preamble
44 .Union of India v Elphinstonespg and Wvg Co Ltd &Ors (2001) 4 SCC 139 [LNIND 2001 SC 2915].
45 .Kesvanand Bharati v State of Kerala AIR 1973 SC 1461 [LNIND 1973 SC 154], (1973) 4 SCC 225 [LNIND 1973 SC
154], per Sikri CJ, AN Ray, HB Khanna JJ.
46 .Abdul Rahman v Kulkarni AIR 1962 Bom 287 [LNIND 1961 BOM 34], p 289, per Patel J: it cannot be used to defeat
the enacting clause, but it has been treated to be a key for the interpretation of the statute: Kashi Prasad v State of
Uttar Pradesh AIR 1967 All 173 [LNIND 1966 ALL 93], p 176; Abdullah Khan v Bahram Khan AIR 1935 Pesh 69, p 72,
per Middleton CJ.
47 .Manilal Sing v Calcutta Improvement Trust (1918) ILR 45 Cal 343: Preamble of Calcutta Improvement Act held not to
restrict or control its enacting provisions; Zeenutunnissa v Warris Ali AIR 1965 Cal 43, p 46, per DN Sinha J.
48 .Ramireddi v Sreeramulu AIR 1933 Mad 120 [LNIND 1932 MAD 207], p 122, per Pandalai J; Rangareddi v
Dasradharamireddi (1938) AIR 1938 Mad 441 [LNIND 1937 MAD 408], p 445, ILR Mad 841; Keshal Panda v Bhobani
Panda 21 IC 538, p 540 (Cal); Corpn of Calcutta v Kumar Arun Chandra AIR 1934 Cal 862, p 864; Altaf Ali v Jamsur Ali
AIR 1926 Cal pp 638-39; NaniGopal Paul v State of West Bengal AIR 1966 Cal 167 [LNIND 1966 CAL 1].
49 . Coke 4 Ins 330; Shobha v State of Uttar Pradesh AIR 1963 All 29 [LNIND 1962 ALL 79], 1962 All LJ 831: reference
by President of India; Re Indo-Pakistan Agreement AIR 1960 SC 845: with respect to the Preamble to the Constitution.
50 .Poppatlal Shah v State of Madras AIR 1953 SC 274 [LNIND 1953 SC 38], 276; TejBhadur v State 1954 All 755;
Ajantha Cashew Co v Asst Director of the Enforcement AIR 1987 Ker 34 [LNIND 1986 KER 196], (1986) 9 ECC 352,
1986 Ker LT 1075, (1987) ILR 1 Ker 205.
51 .Punjab Tin Supply Co v Centalgovt AIR 1984 SC 87 [LNIND 1983 SC 300], (1984) 1 SCC 206 [LNIND 1983 SC 300].
52 .Sarkies v District Magistrate, Meerut AIR 1966 All 458 [LNIND 1965 ALL 128]p 464, per Asthana J.
53 . Quoted in C Narayanan v Gangadharan AIR 1989 Ker 256 [LNIND 1988 KER 331], (1988) 2 Ker LJ 230, (1988) 2 Ker
LT 307 [LNIND 1988 KER 331], (1988) 22 Reports 616, (1988) 2 Civ LJ 568; (1989) ILR 1 Ker 648.
54 . Maxwell, Interpretation of Statutes, ninth edn, p 46; quoted in Official Assignee v Chimniram ILR 57 Bom 346, AIR
1933 Bom 51; Taherally v Chanahasappa AIR 1943 Bom 226; Arudhya v Antonemuthu AIR 1945 Mad 47, p 49; Finch v
Finch (1943) ILR Lah 765, AIR 1943 Lah 260, p 264; Tribhuvan Prakash Nayyar v Union of India AIR 1970 SC 540
[LNIND 1969 SC 388], (1970) 2 SCJ 387 [LNIND 1969 SC 388]; Imrat&Ors v Lanjua&Orsn 1991 JLJ 23; Safari Sales
Pvt Ltd v State of Kerala (1988) 2 Ker LT 423.
55 .Bhatnagar& Co Ltd v Union of India AIR 1957 SC 478 [LNIND 1957 SC 22], p 486.
56 . [1826] 162 ER 456 p 457; quoted by Wazir Husain CJ in KedarNath v Peareylal AIR 1932 Oudh 152; Abitibi Power Co
v Montreal Trust Co AIR 1944 PC 7, p 11. Their Lordships saw no reason to reject the statement of the Ontario
Legislature contained in the Preamble to the Act that the power to stay the action was given in order that an opportunity
might be given to all the parties concerned to consider the plan submitted in the report of the Royal Commission. It was
held:
The tendency of courts today is to apply an interpretation which gives equal weight to all parts of the Act, and thus the
preamble serves no unique function in statutory interpretation. Perhaps the most candid statement of any rule, which is
in fact a denial of any rule, was made by Lord Ellenborough when he said that, whether the words shall be restrained or
not must depend on a fair exposition of the particular case and not upon any uniform rule of construction.
King v Pierce [1814] 105 ER 534; Sutherland, Statutory Construction, third edn, Vol 2, art 4804, pp 347-48.
57 . AIR 1949 EP 94, p 99.
58 .Kannammal v Kanakasabai AIR 1931 Mad 629 [LNIND 1930 MAD 186]-30, (1931) ILR 54 Mad 845; Siba Prasad
Misra v Mstnurabati AIR 1949 Ori 37, p 44; Asharfilal v Board of Revenue AIR 1971 All 465, p 469, per RB Misra J;
quoting Burrakur Coal co v Union of India [1962] 1 SCR 44 [LNIND 1961 SC 55], AIR 1961 SC 954 [LNIND 1961 SC
55]; MotipurZamindary& Co Pvt Ltd v State of Bihar 1962 Suppl (1) SCR 498, Air 1962 SC 660; Mohindar Pal v State of
Himachal Pradesh AIR 1995 HP 15 [LNIND 1994 HP 38].
59 .Atam Prakash v State of Haryana AIR 1986 SC 849, 1986 Punj LJ 191, (1986) 1 Punj LR 329, (1986) 1 Cur CC 642,
(1986) 1 Land LR 478, 1986 (1) Supreme 628, 1986 (2) Supreme 213, 1986 UJ 642 (SC), 1986 Cur Civ LJ 490 (SC).
60 .Sardha Ram v Paras Ram AIR 1962 Punj 147, p 150; Rashtriya Mill Mazdoorsangh v National Textile Corpn (South
Maharashtra) Ltd AIR 1996 SC 710 [LNIND 1995 SC 1187], AIR 1996 SCW 1.
61 .Rex vBASUDEVA 1949 FCR 657, p 671, per Patanjalisastri J.
62 .Darbar Patiala v Narain Das AIR 1944 Lah 302, pp 307 and 08; (1944) ILR Lah 79, per Abdurrehman J; PirjiSafdar Ali
v Ideal Bank Ltd AIR 1949 EP 94, p 99; Sutherland, Statutory Construction, (edHorack), third edn, vol 2, art 1803, p 352
writes:
Page 7 of 7
Preamble
Although the preamble has been in disuse for many years there is a modern tendency to use it of a policy section to explain
the basis for legislative action on the theory that it will assist in the establishment of the constitutionality of the Act. The
preamble is useful in constitutional litigation, where it is alleged that the Act: (1) conflicts with specific constitutional
prohibitions; and (2) where the Act is alleged to be unreasonable and arbitrary.
63 . AIR 1959 Assam 147, p 151; C Kaliammal v Forest Range Officer, Sathanur Range, Sthanur Dam, NA District(1991)
1 Mad LJ 564.
64 . AIR 1966 AP 51 [LNIND 1965 AP 2], 54, per Ekbote J; NaniGopal v State of West Bengal AIR 1966 Cal 167 [LNIND
1966 CAL 1], 177, per BN Banerjee J; quoting Powell v Kempton Park Racecourse Co [1989] AC 143 ,p 157, per
Earl of Halsbury; Jagjit Kumar v Jagdish Chandra AIR 1982 MP 144 [LNIND 1982 MP 68].
65 . AIR 1953 SC 404 [LNIND 1953 SC 67].
66 . (2003) 3 SCC 321 [LNIND 2003 SC 175].
67 . AIR 1954 Hyd 121.
68 . AIR 1928 Lah 35, ILR 9 Lah 260, pp 265 and 267; Sahib Singh v Data Ram (1933) ILR 14 Lah 203.
69 . (2005) 7 SCC 417 [LNIND 2005 SC 701].
70 .Beswick v Beswick [1967] 2 All ER 1197, 1209, per Lord Guest.
71 . Re Chacko 1956 2 MLJ 737.
72 .Raghvendra Singh v Pushpendra Singh AIR 1955 VP 19; Mohd Salem v Umaji (1955) ILR Hyd 169, AIR 1955 Hyd
113; Mohammadali v Gokulprasad AIR 1954 Nag 209.
73 .Commr of Labour v Associated Cement Co Ltd AIR 1955 Bom 363 [LNIND 1954 BOM 111]; Moti Ram v Union of
India AIR 1966 HP 24.
74 .Mohd Salem v Umaji AIR 1955 Hyd 113, (1955) ILR Hyd 169.
75 .MotipurZamindari Co v State of Bihar AIR 1962 SC 660 [LNIND 1961 SC 358], (1962) 2 SCJ 288.
End of Document
Interpretation Clause
NS Bindra
and its Parts
It is a common practice for legislative bodies to define words used in statutes, and to place such definition in a
general interpretation of statute.76 These statutes are valuable aid in resolving questions of statutory meaning, and
they should control except where the language of the Act, examined in the light of relevant and permissible guides
to meaning, indicates that a different meaning is intended.
It is equally a common practice to provide an interpretation or definition clause in every statute and the normal
canon of interpretation of statutes lay down that while interpreting a particular word in a statute, the best guide is the
definition of that word in the concerned statute itself.77 When a word or phrase is defined as having a particular
meaning in an enactment, it is that meaning alone which must be given to it in interpretation of a section of the Act,
unless there by anything repugnant in the context.78 In other words, the definition section in an Act would ordinarily
apply to the provisions of the Act, unless any particular provision therein either expressly or by intendment excludes
it by giving a different meaning or a wider construction to the words used.79 When an expression is not defined in
the statute and such expression happens to be one of everyday use, it must be construed in popular sense, as
understood in common parlance, and not in any technical sense.80
An authoritative statement on the value of an interpretation clause comes in Commissioner of Gift-tax v NS Chetty
Chettiar,81 where the Court observed as follows:
An interpretation clause which extends the meaning of a word does not take away its ordinary meaning. An interpretation
clause is not meant to prevent the word receiving its ordinary, popular and natural sense whenever that would be properly
applicable, but to enable the word as used in the Act, when there is nothing in the context or the subject matter to the
contrary to be applied to some things to which it would not ordinary be applicable.
If it is possible to gather the intent of the legislature and it is then found that such legislative intent cannot be given
effect because of the legislative definition, the latter should not be allowed to control the former. This must all the
more be so in cases where the definition clause opens with the words subject to the context to the contrary, or
unless the context otherwise requires or expressions similar in effect.82
Where the definition is exhaustive, it has been held to cover cases not expressly stated by understanding the
definition against the background and the circumstances that gave rise to the legislation or statutory provision.83
In Commissioner of Sales-tax vUnion Medical Agency,84 the Court had to interpret Section 8 of the Bombay Sales
Tax Act, 1959. The High Court had interpreted the expression registered dealer occurring in Section in context of
Section 4 of the Act. The Supreme Court did not agree with this interpretation of the expression, and held that there
was no need to invoke legislative intent by interpreting the expression in context of Section 4 . The Court held there
was no requirement to invoke provisions apart from the interpretation clause in Section 2.
In this context, the Court held:
There is no dispute with the proposition that the meaning of a word or expression defined may have to be departed from on
account of the subject or context in which the word had been used and that will be giving effect to the opening sentence in
Page 2 of 14
definition section, namely unless the context otherwise requires. In view of this qualification, the Court has not only to look
at the words but also to look at the context, the collocation and the object of such words relating to such matter and
interpret the meaning intended to be conveyed by the use of the words in a particular section. But where there is no
obscurity in the language of the section, there is no scope for the application of the rule of ex visceribus actus. This rule is
never allowed to alter the meaning of what is of itself clear and explicit.
Use of Artificial Expressions or Terms of Art
If the legislature uses an artificial expression or a term of art, then that expression or that term must be construed
according to the language used by the legislature. If the legislature advisedly provides that the termination of the
service of an employee for any reason whatsoever shall be deemed to be retrenchment within the meaning of the
Act, there is no reason why the court should select or accept certain reasons as coming within the meaning of the
definition and certain other reasons as not coming within the meaning of the definition.85 In interpreting a word, it is
true that the particular definition given to it by a statute must be followed, but where an artificial definition is given;
there must be a clear indication that this artificial definition is intended to take away the natural meaning of the
word.86
Definition Binding on Court
When a legislature defines the language it uses, its definition is binding upon the court and this is so even though
the definition does not coincide with the ordinary meaning of the word used.87 It is not for the court to ignore the
statutory definition and proceed to try and extract the true meaning of the expression independently of it.88 If the
legislatures intention is clear and unambiguous, it is obviously outside the jurisdiction of the court to correct or
amend the definition in the interpretation clause.89
Definitions Apply to all Sections without Exception
The Courts have expressed agreement on the principle that the occurrence of the same word or term in an Act
ought to be given the same meaning throughout, and if there is a requirement in a particular provision of adopting a
special and distinct definition, a special definition is added.90
In this context, Lord Dunedin observed in Immigration Board v Govind Swamy:91
It is a novel and, to their Lordships, unheard of idea that an interpretation clause which might easily have been so
expressed as to cover certain sections and not to cover others should be, when expressed in general terms, divided up by
a sort of theory of applicana singula singulis, so as not to apply to sections where context suggests no difficulty in its
application.
However, a statute should be construed according to the intent of the legislature which passed it and that intention
has to be gathered from the words which the statute employs. At times the context may not permit or allow for the
application of the defined meaning of some word figuring in some section of the statute.92 Where the words used in
a statute are not defined, they have to be understood in their grammatical or popular sense,93 unless the words are
technical in which case the special meaning attached to them in their particular fields would be attached.
In Baldev Singh Gandhi vState of Punjab,94 the word misconduct occurred in Section 16 of the Punjab Municipal
Act, 1911 but had not been defined anywhere in the statute. When called upon to interpret the expression as
applicable to the Act, the Court held as follows:
There being different meaning of the expression misconduct, we, therefore, have to construe the expression misconduct
with reference to the subject and the context wherein the said expression occurs. Regard being had to the aims and objects
of the statute.
On the basis of this understanding, the Court held that a councilors criticism of a house tax assessment list could
not constitute misconduct under the Act, because the Act purported to regulate the functioning of municipalities.
Hence, misconduct in this context would have entailed some misdemeanor, misfeasance etc.
Page 3 of 14
The subject-matter of the statute, the object of the legislation, the mischief the enactment seeks to remedy or the
declared intention of the Act, would be factors throwing light on the precise import of expressions used in the case
of any ambiguity. Where however, a word or an expression is the subject of statutory definition for the purpose of a
particular enactment, that definition should be adopted for the construction of that word or expression in that
enactment, whether the definition accords with its popular or etymological meaning or not.95
In Mordhwaj Singh v State of Vindhya Pradesh,96 the Abolition of Jagirs and Land Reforms Act, 1953 was
challenged as being unconstitutional as it empowered the State Government to resume the jagirs and lands of
zamindars. The expressions terms jagirdar and jagir as defined in Section 2 (c) and Section 2 (d), respectively,
came up for interpretation in the course of arguments. The Court held that the expressions are cognate terms, the
former being the holder of the interest and the latter the interest itself and hence when the term jagirdar has been
defined very extensively and comprehensively, an apparent narrowness in the definition of jagir is not of any
material consequence.
Use of Word Denotes
If the word denotes is used in contradistinction to the word means, the definition in the interpretation clause does
not purport in the strict sense to be a definition of that particular word.97
Use of Words Includes, Shall Include or Shall Mean and Include
Craies opines:98
Where an interpretation clause defines a word to mean a particular thing, the definition is explanatory and prima facie
restrictive and where an interpretation clause defines a term to include something, the definition is extensive. An
explanatory and restrictive definition confines the meaning of the word defined to what is stated in the interpretation clause.
The reason is that wherever the word so defined is used in the particular statute in which that interpretation clause occurs, it
will bear only that meaning unless where as is usually provided, the subject or context otherwise requires, an extensive
definition expands or extends the meaning of the word defined into include within it what would otherwise not have been
comprehended in it when the word defined is used in its ordinary sense.
The term include is used in interpretation clauses where it is intended that while the term defined should retain its
ordinary meaning, its scope should be widened by specific enumeration of certain matters which its ordinary
meaning mayor may not comprise so as to make the definition enumerative, and not exhaustive.1 When it is so
used, these words or phrases must be construed as comprehending not only such thing as they signify according to
their natural import but also those things which the interpretation clause declares that they shall include.2 Not being
exhaustive, its meaning has to be understood in the light of the context and the purposes of the provisions in
connection with which the same has been used.3
In Chatur Shigh v Asst Collector, Durg,4 the Court held that the effect of the expression shall also include in Section
3 of the Public Accountant Default Act, 1850, which defined a public accountant, made the definition prima facie
extensive. In the opinion of the Court, the meaning was enlarged, and it was not necessary that a person ought to
have been appointed as an accountant. The definition was widened to include any person who by reason of any
office (state service) held by him is entrusted with receipt of money, and such a person was to be held accountable
for loss or defalcation if he is a public accountant.
In Calico Mills Ltd. vState of Madhya Pradesh,5 the petitioner claimed that Section 2 (b) of the Central Provinces
and Berar Entertainments Duty Act, 1936, that defined the expression Entertainment in an inclusive manner, did not
apply to them as they were traders in fabrics and clothing. It argued that the expression could not be interpreted as
widely as suggested by the State even with an inclusive definition. The Court agreed with the petitioner and held
that the demand notice for duty issued on the petitioner was liable to be quashed. The Court expressed the
following observation in regard to an inclusive definition:
It is well-settled that the word include is used in interpretation clauses; where it is intended that while the term defined
Page 4 of 14
should retain its ordinary meaning, its scope should be widened by specific enumeration of certain matters which its
ordinary meaning may or may not comprise so as to make the definition enumerative, and not exhaustive and when it is so
used these words or phrases must be construed as comprehending, not only such thing as they signify according to their
natural import but also those things which the interpretation clause declares that they shall include. Again, where a term is
interpreted in a statute as including, the comprehensive sense is not to be taken as strictly defining what the meaning of the
word must be under all circumstances but merely as declaring what things should be comprehended within the terms where
the circumstances require that they should.
Including is a term of extension. It imports addition. It adds to the subject matter already comprised in the
definition.6 A broader meaning should be given where an interpretation clause uses the word includes, however it is
also necessary to keep in view the scheme, object and purport of the statute;7 if the context so requires the word
include need not be read as a word of extension.8 It is true that in some instances the word include may be used in
a restrictive sense by way of illustrating what has been said before.9 In Dilworth v Commissioner of Stamps,10 it
was laid down that the words include or shall be deemed to include are very generally used in interpretation clauses
in order to enlarge the meaning of words or phrases occurring in the body of the statute. But the word include may
be equivalent to mean and include, and in that case, it may afford an exhaustive explanation of the meaning, which
for the purposes of the Act, must invariably be attached to these words and expressions. Where it is intended that
the term defined should retain its ordinary meaning, its scope should be widened by specific enumeration of certain
matters which in its ordinary meaning may or may not comprise so as to make the definition enumerative and not
exhaustive.11 Sometimes the word includes though it may extend the meaning of the term in one sense, may in
another sense restrict it.12
In State of Tamil Nadu v Adhiyaman Educational & Research Institution,13 it was held that the employment of the
expression means and includes in Rule 2 (b) of the Tamil Nadu Private College (Regulation) Rules, 1976,
effectively confines the definition to those species of the genus which are specifically enumerated in the definition.
Ordinarily, when it is intended to exhaust the significance of the word interpreted, the word means is used by the
legislature.
Includes or Means
Include is very generally used in interpretation clauses in order to enlarge the meaning of the words or phrases
occurring in the body of the statute. When it is so used, these words or phrases must be construed as
comprehending, not only such things as they signify according to their nature and import, but also those things
which the interpretation clause declares that they should include. The word include is susceptible of another
construction which may become imperative, if the context of the Act is sufficient to show that it was not merely
employed for the purpose of adding to the natural significance of the words or expression defined. When it is
mentioned that a particular definition include certain things, it should be taken that the legislature intended to settle
a difference of opinion on the point or wanted to bring in other matters that would not properly come within the
ordinary connotation of the word or expression or phrase in question; but it cannot be taken to be exhaustive.14
In Ramala Sahkari Chini Mills Ltd. v Commissioner, Central Excise,15 The question before the Court was whether
welding electrodes used in the maintenance of machines were not eligible for credit as inputs under the CENVAT
Credit Rules, 2002. The Court delved on the use of the expression include in Rule 2 (g), holding that it should be
given a wide interpretation, and that the legislative intent in this case was to create an expansive legal fiction under
Rule 2 (g). The employment of the expression made it evident in the view of the Court that the legislature did not
intend to impart a restricted meaning to the definition of inputs. Hence, the Court held that welding electrodes could
be considered inputs under Rule 2 (g). The Court observed:
The word include should be given a wide interpretation as by employing the said word, the legislature intends to bring in, by
legal fiction, something within the accepted connotation of the substantive part. It is also well settled that in order to
determine whether the word includes has that enlarging effect, regard must be had to the context in which the said word
appears.
In Oswal Oils and Fats Ltd. vAdditional Commissioner,16 the Court was called upon to interpret the ambit of the
expression person occurring in Section 154, U.P. Zamindari Abolition and Land Reforms Act, 1950. The Court held
Page 5 of 14
that the expression person appearing in Section 154 (1) included any company or association or body of
individuals, whether incorporated or not. The Court observed:
The word include is generally used in interpretation clauses in order to enlarge the meaning of the words or phrases
occurring in the body of the statue and when it is so used those words or phrases must be construed as comprehending,
not only such things, as they signify according to their natural import, but also those things which the interpretation clause
declares that they shall include.
Deeming Provision
The word deemed is used a great deal in modern legislation. Sometimes, it is used to impose for the purpose of a
statute and artificial construction of a word or phrase that would not otherwise prevail. Sometimes, it is used to put
beyond doubt a particular construction that might otherwise be uncertain or to give a comprehensive description
that includes what is obvious, what is uncertain and what is, in the ordinary sense, impossible.17 However the mere
use of the word deemed is not in itself sufficient to set up a legal fiction.18 Legal fiction is treating something not
done as done and this requires legislative authority. Courts cannot set up legal fictions without such authority.19
Where the legislature says that something should be deemed to have been done which in truth has not been done,
it creates a legal fiction and in that case, the court is entitled and bound to ascertain for what purposes and between
what persons the statutory fiction is to be resorted to and full effect must be given to the statutory fiction and it
should be carried to its logical conclusion.20
In the words of Lord Asquith:
If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also
imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably
have flowed from or accompanied it. The statute says that you must imagine a certain state of affairs, it does not say that
having done so; you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that
state of affairs.21
In Mahadeosa Makamansa v Dy Commr,22 the Court had to consider the fiction created by Section 18 of the
Central Provinces and Berar Municipalities Act, 1922. The provision created a legal fiction that though neither the
president nor the vice-presidents of municipalities were members of the Municipal Committee, they shall be
deemed in all cases to be members under this Act. The Court considered the fiction created by the Act, and
observed:
As we understand the law relating to the application of statutory fictions to facts, the Court has got in the first instance to
determine what are the limits within which and the purposes for which the Legislature has created the fiction. This may be
determined from the actual words used in creating that fiction, and those words must be given their literal and full effect,
unless in doing so the purposes of creating the fiction are not achieved.
On the basis of these observations, the Court held that the deeming provision would only go to the extent of making
the president and vice-presidents ex-officio members of the Committee, sans any voting rights.
In Malchand vSantolal,23 the Court was considering an order under Section 4 (1) of the Assam Urban Areas Rent
Control Act, 1946, which contained a deeming provision that deemed it to be a decree for the purposes of an
appeal. In this regard, the Court relied on the principle that when a statute declares that a person or thing shall be
deemed to be or shall be treated as something which in reality it is not, it shall have to be treated so during the
entire course of the proceeding. Hence, the Court held that if an order under Section 4 (1) had to be regarded as
tantamount to a decree for purposes of appeal, the order on appeal will have the same status as though the appeal
were from a decree. The effect of the deeming provision was held to be that the order under Section 4 (1) would
result in an appellate decree if appealed from and therefore a second appeal would lie if the case is covered by the
provisions contained in Section 100 of the Code of Civil Procedure, 1908. The Court also peripherally applied the
principle that when a dispute is referred to an established court without any limitations, the ordinary incidents of
procedure in that court, including any general right of appeal from its decision, attach thereto.
Page 6 of 14
In State of Karnataka v Vishwabharati House Building Cooperative Society,24 the issue was whether Consumer
courts established under the Consumer Protection Act, 1986, had the power to execute a decree passed by them,
or would a separate execution petition be required to be filed in the civil court when the decree achieved fruition.
The court held that Section 25 of the Act created a legal fiction that the orders made by the District Forum, State
Commission or National Commission would be deemed to be a decree or order made by civil court in a suit.
According to the Court, the objective of the fiction would be defeated if it was held that the District Consumer Forum
did not have the power to enforce an order, and to seek enforcement of its orders the forum would have to send
them to the court concerned which has jurisdiction over the area. Hence the Supreme Court reversed the
interpretation of the Karnataka High Court which made consumer forums dependent on local magistrates for the
execution of their orders.
In Union of India v Rajiv Kumar,25 Rule 10 (2) of the Central Civil Services (Classification, Control and Appeal)
Rules, 1965, was in question. The concerned rule provided that where an employee was in custody for a period
exceeding 48 hours, the concerned employee was deemed to have been suspended with effect from the date of
suspension and shall remain suspended until further orders. The respondent was detained in custody for a period
exceeding 48 hours. It was the contention of the respondent that a case covered under Rule 10 (2)(a) had limited
operation for the period of detention and not beyond it and that an employee could not be placed under suspension
for an indefinite period of time. Relying on the fact that Rule 10 (2) was a deemed provision and created a legal
fiction, the Court held as follows:
If the order deemed to have been made under Rule 10 (2) is to loose effectiveness automatically after the period of
detention envisaged comes to an end, there would be no scope for the same being modified as contended by the
respondents and there was no need to make such provisions as are engrafted in Rule 10 (5)(a) and (c) and instead an
equally deeming provision to bring an end to the duration of the deemed order would by itself suffice for the purpose.
In Manorey v Board of Revenue,26 the Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1950, provided a
special procedure for eviction of a person wrongfully occupying or damaging or misappropriating the property
vested in a gaonsabha or a local authority. However this special procedure did not apply where a member of the
Scheduled Caste or Scheduled Tribe was occupying such land measuring less than 1.26 hectares before 30 June
1985. In such a situation, the labourer would be deemed to be a bhumihar with non-transferable rights and could
not be evicted from such land. The point of controversy was whether the deeming provision prevailed over other
provisions of the statute which laid down the procedure through which a bhumihar obtained occupation. According
to the High Court, the deeming provision could not be overstretched to supersede the other provisions in the Act
dealing specifically with the creation of the right of bhumidhar. Consequently, according to the High Court, a person
governed by the beneficial provision would have to still go through the process of allotment. The Supreme Court on
appeal found the view of the High Court to be erroneous because it amounted to ignoring the effect of a deeming
provision enacted with a definite social purpose. The apex Court held that once the deeming provision
unequivocally provided for the admission of the person satisfying the requisite criteria laid down in the provision as
bhumidhar with non-transferable rights, full effect ought to have been given to it. The lack of a specific provision for
making an application under the Act to make the necessary changes in the revenue record was no ground to
dismiss the application as not maintainable.
In Daya Wanti Punj v New Delhi Municipal Committee,27 an applicant seeking to erect or re-erect a building would
be given deemed consent under Section 193 (4) of the Punjab Municipal Act, 1911, if the NDMC neglected or
omitted to sanction the plans within 60 days from the receipt of them. The petitioners had applied in 1963 and then
re-applied in 1970 for the reconstruction of the property they were living in. Their plans had been rejected for want
of the lessors consent. They sought to invoke the deeming provision in Section 193, and claimed that since their
plans had not been sanctioned within 60 days, they ought to have been deemed to be sanctioned. The court
rejected this argument of the petitioners and held as follows:
Fiction is an assumption or supposition of law that something which is or may be false is true, or that a state of fact exists
which has never really taken place. The state of things does not accord with the actual facts of the case. The fiction in the
realm of law has a defined role to play and it cannot be stretched to point where it loses the very purpose for which it is
invented and employed. The statute introduces a legal fiction for a certain purpose. It would not be legitimate to travel
beyond the scope of that purpose and read into it words which are not there. The fiction is strictly limited to the present and
has been introduced for the sake of justice. It does not import the doctrine of relation back. It has no relation with the past.
Page 7 of 14
All that the section says is that the unsanctioned plan will be treated as if duly sanctioned. It is a case of deemed sanction.
The provision is not retrospective in operation. It is not in effect a retrospective changing of statute law.
When the legislature says that rules, regulations and bye-laws which have been framed under the statutory power
conferred by the Act shall have effect as if enacted in this Act, it is adopting the well-known device of legal fiction
whereby we are bidden to treat rule not framed under the Act as the rules framed under the Act. In such cases,
cannons of construction which are usually applicable for interpreting legal fictions will have to be resorted to.28 The
fiction should, of course, be carried to its logical conclusion, but must be within the framework of the purpose for
which it is created.29
Legal Fiction
The Supreme Court while interpreting Section 5 of the Prevention of Corruption Act, 1988, held that legal fiction is
one which is not an actual reality but which the law recognizes and the court accepts as a reality. Therefore, in case
of legal fiction the court believes something to exist which in reality does not exist. It is nothing but the presumption
of the existence of the state of affairs which in actuality is non-existent. The effect of such a legal fiction is that a
position which otherwise would not obtain is deemed to obtain under the circumstances.30
Thus, in State of Maharashtra v Laljit Rajshi Shah,31 the Court held that although the legislative intent behind
Section 161 of Maharashtra Co-operative Societies Act, 1960, was clearly to make a specific category of officers
public servants by legal fiction, the deeming provision in the 1960 Act would not extend to make those persons
public servants under Section 21 of the IPC. The Court observed that a reference to Section 21 of the IPC in the
1960 Act would not make those two statutes in parimateria and the provisions of Section 21 of the IPC would not
stand applied to the latter Act.
The courts have to give full effect to a statutory fiction and the fiction has to be carried to its logical conclusions. In
Gajraj Singh v State Transport Appellate Tribunal,32 the question was whether the permit granted under the
repealed Motor Vehicles Act,1939, under a particular scheme framed under that Act was to continue and was liable
to be renewed under the new Motor Vehicles Act,1988. The court held that a permit granted under the repealed Act
shall continue to have the same operation under the new Act under the same terms and conditions and for the
same period, as if the repealed Act was in operation and as if the new Act had not been passed. Under Section 217
(2)(b) of the 1988 Act, there was a fiction of law by which, though the old Act was wiped out, its operation was
continued. The Court held as follows:
The new Motor Vehicles Act breathes life into the dead permits etc and allows full play to the permits granted under the
repealed Motor Vehicles Act till their period expires by efflux of time. Any other view would be tantamount to allowing the
repealed Motor Vehicles Act to remain in operation in perpetuity simultaneously with the operation of the new Motor
Vehicles Act. Both cannot co-exist in the same shelter.
In Pratap Singh v State of Jharkhand,33 the Supreme Court observed that the striking distinction between the
Juvenile Justice Act,1986, and Juvenile Justice Act, 2000, was that under the repealed Act, a juvenile meant a male
juvenile who had not attained the age of 16 years and a female juvenile who had not attained the age of 18 years.
In the new Act, no distinction had been drawn between the male and female juvenile. The limit of 16 years in the
repealed Act had been raised to 18 years in the new Act. In the new Act, wherever the word juvenile appeared, the
same would now have to be taken to mean a person who had not completed 18 years of age. Section 20 of the new
Act contained a deeming provision to operate in a circumstance where a person who was being tried under the old
Act was below the age of 18 at the time of commission of the offence. Section 20 stated that the trial shall continue
in that court as if that Act has not been passed and in the event, he is found to be guilty of commission of an
offence, a finding to that effect shall be recorded in the judgment of conviction, if any, but instead of passing any
sentence in relation to the juvenile, he would be forwarded to the Juvenile Board which shall pass orders in
accordance with the provisions of the new Act as if the Juvenile Board has been satisfied on inquiry that a juvenile
has committed the offence.
Double Fiction
A question of double fiction was raised in Jute and Gunny Brokers Ltd v New Central Jute Mills Co Ltd.34Section
Page 8 of 14
16 of the Raw Jute (Central Jute Board and Miscellaneous Provisions) Act, 1951 created two fictions. One was that
the Act shall be deemed to have commenced on a particular anterior date, and the other that the notification issued
under the earlier ordinance shall be deemed to have been issued under the later Act. In this regard, the Court held
that unless the word Ordinance in the Section was read as an Act, the court cannot give full effect to the twin
fictions created by the Act.
Meaning Conclusive
Where in the same statute, the legislature defines the meaning of the words used, it expresses most authoritatively
its intent and its definitions and construction is binding on the courts.
In Basanta Kumar Pal v Chief Electrical Engineer,35 a rule under the Railway Establishment Code that stated that
a railway employees employment may be terminated for inefficiency at the age of 55 years. The petitioner argued
that the rules import was that if the employee was efficient, his employment would continue till the age of 60 years.
However, the rules were interpreted by the State did not accommodate for such an interpretation. The court held:
If the rules applicable to a matter containing an interpretation clause provide that the rules shall be taken to mean what the
president may interpret their meaning to be, the party subject to those rules shall accept the presidents interpretation. What
the party is really governed by is not the rules, as such, but the rules as interpreted by the president.
Caution
A statute is passed as a whole and not in sections. It may well be assumed to be animated by one general purpose
and intent. It is thus not safe to adopt the process of etymological dissection after taking words out of their context
and applying definitions given by lexicographers to proceed to construe the statute on the basis of such definitions.
Parliamentary enactments must be construed as a whole and their meaning attributed to words should, as a
general rule, be inspired by the context.36 The problem of definition, however, is not an easy onefor it never stops.
Inevitably, the definition must itself be defined, and the definition itself will need interpretation.
Interpretation of Definition
A phrase having been introduced, and then defined, the definition prima facie must entirely determine the
application of the phrase; but the definition must itself be interpreted before it is applied. In case of doubt it should
be interpreted in a sense appropriate to the phrase defined and to the general purpose of the enactment.37 There
is no doubt that when an Act itself provides a dictionary for the words used, we must look into that dictionary first for
an interpretation of the words used in the statute, and if that word is defined, then it will ordinarily have that meaning
assigned to it in the definition clause.38 Where, within the framework of the ordinary acceptation of the word, every
single requirement of the definition clause is fulfilled, it would be wrong to take the definition as destroying the
essential meaning of the word defined. A definition clause, however, does not enlarge the scope of the Act
containing it.39
In State of Uttar Pradesh v Jai Bir Singh,40 it was argued that since the 1982 amendment to the definition of
industry in Industrial Disputes Act, 1947 excluded certain establishments, the narrow definition of industry must be
employed by the court and the decision in Bangalore Water Supply41 must be reconsidered. Commenting upon the
definition of industry in the Industrial Disputes Act, 1947 the court observed that the reason why the 1982
amendment to the definition of industry in this Act was not brought into force could be indicative of the legislative
intent. The stated reason for not notifying the amendment was that, those industries which will be excluded under
the new definition will be without a forum to settle their disputes. The court observed that this has to be taken as an
important factor while interpreting the term industry.42 And to that end the Court observed:
Let us assume that the definition clause is so worded that the requirements laid down therein are fulfilled, whether we give
a restricted or a wider meaning: to that extent there is an ambiguity and the definition clause is readily capable of more than
one interpretation. We must then see what light is thrown on the true view to be taken of the definition clause by other
provisions of the Act or even by the aim and provision of subsequent statutes amending the Act or dealing with the
same.43
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It should not disturb plain meaning of words
An interpretation clause is not meant to prevent the word receiving its ordinary, popular and natural sense
whenever that would be properly applicable, but to enable the word as used in the Act, when there is nothing in the
context or the subject-matter to the contrary to be applied to something to which it would not ordinarily be
applicable.44 The definition should be used only for interpreting words which are ambiguous or equivocal and so as
not to disturb the meaning of such as are plain. It is true that an artificial definition may include a meaning different
from or in excess of the ordinary acceptation of the word, which is the subject of definition, but there must be
compelling words to show that such a meaning different from or in excess of the ordinary meaning is intended.
Where, within the framework of the ordinary acceptation of the word, every single requirement of the definition
clause is fulfilled, it would be wrong to take the definition as destroying the essential meaning of the word
defined.45
It should not be repugnant to context
Definitions given in the Act should be so construed as not to be repugnant to the context and would not defeat or
enable the defeating of the purpose of the Act.46 The definition in a statute must be read in its context and in the
background of the scheme of the statute and the remedy intended by it. All these control the definition.47 A
definition clause in a statute does not necessarily apply in all possible contexts of the other provisions of the
statute,48 especially where the expressions which are interpreted by a definition clause are used in a number of
sections, with meaning sometimes of a wide and sometimes of an obviously limited character.49
In South India Bank Ltd. v Pichuthayyapan,50section 2 (3) Madras Shops and Establishment Act, 1947, was in
question. The provision mentioned a bank within the definition of commercial establishment and Section 2 (6) of the
Act defined establishment as meaning a commercial establishment. Therefore, banks were clearly establishments
under in Section 2 (6) . It was contended for the appellant that under Section 2 (3), not all banks were commercial
establishments but only such of them as are also establishments and that as the appellant was a bank but not an
establishment as defined in Section 2 (d).
The Court held as follows:
The argument involves that the definition of establishment in s 2 (6) should be bodily imported into the definition of
commercial establishment in s 2 (3) and that accordingly when the definition enacts that a commercial establishment
means an establishment which is a clerical department of a factory or industrial undertaking or which is an insurance
company, joint stock company, bank, brokers office or exchange, it should be read as commercial establishment, means
restaurant, eating house, residential hotel, theatre or any place of public amusement or entertainment, which is a clerical
department of a factory or industrial undertaking or which is an insurance company, joint stock company, bank, brokers
office or exchange. To limit clerical department of a factory or industrial undertaking or an insurance company, joint stock
company, bank, brokers office or exchange, to those which are restaurants and the like would yield no sense and would
render the provisions altogether nugatory...that the interpretation contended for by the appellant is not correct will be plain
from s 2 (6) which defines establishment as including commercial establishment. That clearly shows that the definition of
commercial establishment in s 2 (3) is not qualified by the word establishment. If it is construed otherwise, the result would
be that while under s 2 (3) a commercial establishment is a species of the genus establishment according to s 2 (6) which
defines establishment as meaning a commercial establishment, the genus would mean the species.
Definition in Other Acts
It is always unsatisfactory and generally unsafe to seek the meaning of words used in an Act of Parliament in the
definition clause of other statutes dealing with matters more or less cognate, even when enacted by the same
legislature.51 Even otherwise, the definition of an expression contained in one enactment cannot furnish any safe
guideline for determining the scope and contents of the same expression used in a different context in a separate
enactment. This is all the more so when the two enactments have been passed by different legislative bodies.52
Where a definition is given in an Act, it should be confined as a general rule to interpret the word defined for that Act
only and not explain the meaning of the word in other statute, particularly when the two statutes are not in
Page 10 of 14
parimateria.53 The definition given in a statute is for effectuating the provisions of that statute and not for
effectuating the provisions of another statute. A definition given in an Act cannot be used for purposes of another
Act.54 The material language of the section has to be always borne in mind, for if a court is prone to indulge in
exposition and attempted definition, it will be substituting the language chosen by Parliament with some other form
of words and in an attempt at wide survey, some essential factor will be omitted or some inessential factor be
substituted or added.55
In Rulia Ram v Fateh Singh,56 the Court was concerned with the definition of limitation in the East Punjab Urban
Rent Registration Act, 1949. The appellant sought to rely on legislations passed in West Bengal and Delhi that dealt
with similar issues. The Court rejected the reliance on statutes from other legislatures and held as follows:
If the meaning put on those words does not do violence to the objects and purposes of the Act and the language is plain
and unambiguous, the court will not be justified in putting a different meaning on the word merely because a sister
legislature has in its wisdom thought to enlarge the scope of these words.
In Narottam Das v State of Madhya Pradesh,57 the question before the Court was the validity of the Madhya
Pradesh Minimum Wages Fixation Act, 1962, which was passed to fix rates of minimum wages retrospectively as
per the Minimum Wages Act, 1948. Section 2 stated that the expressions used in the 1962 Act would have the
same meaning as defined in the 1948 Act. The State argued that the reliance on definitions from a previous Act
made the legislation a dependent legislation. The court rejected this contention, and held as follows:
The definition of expression used in an Act with reference to another Act would remain effective even after the other Act
ceases to exist. In other words the operation of the former Act does not depend upon the continued existence or otherwise
of the former Act.
76 . For eg, Interpretation Act 1889 and the General Clauses Act 1897.
77 .MandalGopalan v Rohim (1977) Ker LT 386.
78 .Official Liquidators v Jugal Kishore AIR 1989 All 1 [LNIND 1988 ALL 211], p 3.
79 .TKR Sharma v District Collector, Kurnool(1966) 1 Andh WR 42, (1966) 1 Andh LT 162.
80 .Principal, SD Kanyavidhyalya v Authority under the Payment of Gratuity Act1983 Sri LJ 239 (J&K).
81 . (1971) 2 SCC 741 [LNIND 1971 SC 469].
82 .Kuriakose Kurian v Saramma AIR 1964 Ker 154, p 156, per Raghavan J.
83 .Govinda Pillai v Taluk Land Board Parur 1977 Ker LT 258.
84 . AIR 1981 SC 1 [LNIND 1980 SC 419], (1981) 1 SCC 51 [LNIND 1980 SC 419], 1980 Tax LR 1800 (SC), 1981 STI 19
(SC), 1981 SCC 26 (Tax), 60 Taxation 8 (SC).
85 .KN Joglekar v BL Rly Co AIR 1955 Bom 295: definition of retrenchment in s 2 (oo), Industrial Disputes Act 1947.
86 .Abid Ali v State1958 All LJ 333.
87 . Sutherland, Statutory Construction, third edn, Vol 2, art 4814, p 358: if however, the definitions are arbitrary and result
in unreasonable qualifications or are uncertain, then the court is not bound by the definition; and at p 224: it was held:
Where a definition clause is clear it should control the meaning of the words used in the remainder of the Act, for that is the
legislative intent. Where the definition is not clear then the court should use all intrinsic and extrinsic aids to determine
the legislative intent but presumption should be that a fair interpretation of the meaning of words as defined in the
definition section should control.
Hazari Singh v Vijay Singh 1963 MPLJ 235.
Page 11 of 14
88 .Nand Rao v Arunachalam AIR 1940 Mad 385 [LNIND 1939 MAD 334]; Kasturi (deceased) v Gaon Sabha (1989) 4
SCC 55 [LNIND 1989 SC 357].
89 .Mordhwaj Singh v State of Vindhya Pradesh AIR 1954 VP 24.
90 .Mahommad Jalil v Asst Custodian AIR 1958 All 679 [LNIND 1958 ALL 32], p 681.
91 . AIR 1920 PC 114, p 116:

It is recognized in England to be a rule with regard to the effect of interpretation clauses of a comprehensive nature such as
we have here that they are not to be taken as strictly defining what the meaning of a word must be under all
circumstances, but merely as declaring what things, may be comprehended within the term where the circumstances
require that they should.
Emperor v Braz H De Souza 12 Cr LJ 426, p 428, 13 Bom LR 494; Queen v Justice of Cambridgeshire [1828] 7 Ad & E
480, p 491, per Lord Denman; Meux v Jacobs[1855] 7 E & IR App 431, p 493, per Lord Selborne; Mayar of Portsmouth
v Smith [1885] 10 AC 564, p 575, per Lord Watson.
92 .State of Maharashtra v Indian Medical Assn &Ors (2002) 1 SCC 589 [LNIND 2001 SC 2784].
93 .State of Uttar Pradesh v Kores (India) Ltd 1976 UJ 876 (SC).
94 . (2002) 3 SCC 667 [LNIND 2002 SC 120].
95 .Hindu v Workers (1957) 2 Lab LJ 275, (1957-58) 13 FJR 68 (Mad).
96 .Mordhwaj Singh v State of Vindhya Pradesh AIR 1954 VP 24.
97 .Manikram v Emperor AIR 1916 Pat 133, p 135.
98 . Seventh edn, p 213.
1 . ReNasibun ILR 8 Cal 534, p 536; Pancharatham Pillai v Emperor AIR 1929 Mad 487 [LNIND 1929 MAD 9]; Bapu
Vithal v Secy of State AIR 1932 Bom 370; Province of Bengal v Hingul Kumari AIR 1946 Cal 217, p 224.
2 .A Poornachandra Rao v Govt of Andhra Pradesh (1982) 1 ALT 119, (1982) 1 APLJ 106.
3 .Somdutt v State of Uttar Pradesh 1976 All LR 529.
4 . 1980 Jab LJ 405.
5 .Calico Mills Ltd v State of Madhya Pradesh AIR 1961 MP 257, p 259; SM James v Abdul Khan AIR 1961 Pat 242.
6 .AC Patel v Vishwanath AIR 1954 Bom 204 [LNIND 1953 BOM 65].
7 .Mukesh K Tripathi v Senior.Divisional Manager, LIC, (2004) 8 SCC 387; Indian Handicrafts Emporium v Union of India
(2003) 7 SCC 589 [LNIND 2003 SC 718].
8 .South Gujarat Roofing Tiles Manufacturers Assn v State of Gujarat(1977) 18 Guj LR 688 (SC).
9 .Sankarasana Ramanuja v State of Orissa AIR 1957 Ori 96, p 100, per Narasimham CJ.
10 . [1899] AC 99, pp 105 and 06; Lucknow Development Authority v MK Gupta 1993 (6) JT 307 SC, (1994) 1 SCC 243
[LNIND 1993 SC 946]; Delhi Judicial Service Assn, Tis Hazari Court, Delhi v State of Gujarat AIR 1991 SC 2176
[LNIND 1991 SC 446], 1991 (3) JT 617, 1991 Cr LJ 3086, (1991) 4 CC 406, AIR 1991 SCW 2419, [1899] AC 99;
followed in Sujdivram v Lal Shyamshab AIR 1956 Nag 67: as the term magistrate in the General Clauses Act is not
limited to magistrates appointed under the Cr PC it is permissible to find out its meaning in the ordinary sense.
11 .A Poornachandra Rao v Government of Andhra Pradesh (1982) 1 Andh LT 119, (1982) 1 APLJ 106; Universal
Communication System v State of Uttar Pradesh(1995) 2 JCLR 239; relying on Doy Pack System Pvt Ltd v Union of
India AIR 1988 SC 782 [LNIND 1988 SC 589]; P Kasilingam v PSG College of Technology 1995 (3) JT 193; State of
Bombay v Hospital Mazdoorsangh AIR 1960 SC 610 [LNIND 1960 SC 19]; SGR Tiles Mfg Ltd v State of Gujarat AIR
1971 SC 90.
12 .BapuVithal v Secy of State AIR 1932 Bom 370, p 374; Masrab Khan v Debnath Mali AIR 1942 Cal 321; Madras
Rubber Factory Ltd v Rubber Board, Kottayam AIR 1982 Ker 257.
13 . (1995) 4 SCC 104 [LNIND 1995 SC 413].

Page 12 of 14
14 .A Poornachandra Rao v Govt of Andhra Pradesh (1982) 1 Andh LT 119, 1982 APLJ 106.
15 . (2010) 14 SCC 744 [LNIND 2010 SC 1157]
16 . (2010) 4 SCC 728 [LNIND 2010 SC 305]
17 .St Aubyn v Attorney-General [1952] AC 15, [1951] 2 All ER 473, per Lord Radcliffe. Commenting on these remarks,
Danckwerts J said:
This seems to me to resemble the methods of Humpty Dumpty mentioned by Lord Atkin in Liversidge v Anderson [1941] 3
All ER 338, p 361. It is not necessary for me to import Alice in Wonderland for the purpose of this case. Suffice it to say,
that a deeming provision is not always used in a Statute in aid of an artificial construction as Lord Radcliffe himself
recognised. In my opinion, the deeming provision is used in sub-section (2) of section 20 to underline what is obvious
and to make doubly certain what is certain.
India Tabacco Co Ltd v Dylabourcommr 75 CWN 217, p 225, per SK Mukherjee J; s 20 (2)(a) Industrial Disputes Act 1947;
quoted inChipping Ltd v Zambre AIR 1969 Bom 274 [LNIND 1968 BOM 44], p 281; Consolidated Coffee Ltd v Coffee
Board, Bangalore AIR 1980 SC 1468 [LNIND 1980 SC 187], (1980) 3 SCC 358 [LNIND 1980 SC 187], 1980 SCC 279
(Tax), 1980 Tax LR 1723, 1980 STI 293 (SC).
18 .Ashok Leyland Ltd. v State of Tamil Nadu (2004) 3 SCC 1 [LNIND 2004 SC 1556].
19 .GhulamMaula v State of Uttar Pradesh AIR 1964 All 353 [LNIND 1964 ALL 17], p 355, per Desai CJ.
20 .Rangaraj v RR Subbaroyan (1990) 1 LW 70; State of Bombay v Chapnalkar AIR 1953 SC 244 [LNIND 1953 SC 33];
Amar Singhji v State of Rajasthan AIR 1955 SC 504 [LNIND 1955 SC 36], p 526; Radha Kissen v Durga Prasad AIR
1940 PC 218; Commr of Income-tax, Bombay v Bombay Corpn AIR 1930 PC 54; Triloknath v State AIR 1950 All 657
[LNIND 1950 ALL 129], p 659; Emperor v Atmaram 31 Bom 480, p 490; Ramdayal v Shankar Lal AIR 1951 Hyd 140;
Mahadeosa Makamansa v Dy Commr, Amraoti AIR 1954 Nag 217; Income-tax Officer v Alfred AIR 1952 SC 663:
assessee includes his legal representative and can be penalised; State of Gujarat v Ramanlal Sankarchand & Co AIR
1965 Guj 60; Naubatram v Commr of Income-tax, Madhya Pradesh 1972 MPLJ 324, p 328, per Naik acting CJ; State of
Bombay v Pandurangvinayak AIR 1953 SC 244 [LNIND 1953 SC 33].
21 . Re Ravi Nandan Sahay, Sessions Judge, Patna 1993 Cr LJ 2436, (1993) 1 BLJR 750, (1993) 3 Recent Cr R 456
(Pat); M Venugopal v Divisional Manager, Life Insurance Corpn of India, Machilipatnam, Andhra Pradesh (1994) 2 LW
23 (SC); Governing Body of Paramananda College, Bolagarh v State of Orissa(1992) 73 Cut LT 451; East End
Dwellings Co Ltd v Finsbury Borough Council [1952] AC 109, 132-33; quoted in Ahmad Raza Khan v Bhola Prasad
(1979) 27 BLJR 699, 705 (DB).
22 .Mahadeosa Makamansa v Dy Commr, Amraoti (1954) ILR Nag 341, AIR 1954 Nag 217; Ahmad Raza Khan v Bhola
Prasad (1979) 27 BLJR 699.
23 . AIR 1954 Assam 177; Commr of Income-tax, Bombay v Bombay Trust Corpn AIR 1930 PC 54; Chipping Ltd v Zambre
AIR 1969 Bom 274 [LNIND 1968 BOM 44], p 281.
24 . (2003) 2 SCC 412 [LNIND 2003 SC 60].
25 . (2003) 6 SCC 516 [LNIND 2003 SC 563].
26 . (2003) 5 SCC 21.
27 . AIR 1982 Del 534 [LNIND 1982 DEL 172].
28 .State of Madhya Pradesh v AK Jain AIR 1958 MP 162, p 165.
29 .Commr of Income-tax, Gujarat v Baivina(1965) 6 Guj LR 583; Mahommad Jaffar Sahib v Palaniappa Chettiar(1964)
ILR Mad 34, (1964) 1 MLJ 112, 76 MLW 582; Navnit Lal Pitambardas v Bhagwandas Gordhan Das Gandhi 1977 MPLJ
115.
30 .Gajraj Singh & Ors v State Tpt Appellate Tribunal &Ors (1997) 1 SCC 650 [LNIND 1996 SC 1456]; K Kamraj Nadar v
Kunju Thevar AIR 1958 SC 687 [LNIND 1958 SC 57].
31 .Ibid.
32 .Gajraj Singh & Ors v State Tpt Applellate Tribunal & Ors (1997) 1 SCC 650 [LNIND 1996 SC 1456].
33 . (2005) 3 SCC 551 [LNIND 2005 SC 100]. The same points were reiterated in Bijender Singh v State of Haryana
(2005) 3 SCC 685 [LNIND 2005 SC 299].
Page 13 of 14
34 . AIR 1959 SC 569 [LNIND 1959 SC 7], p 572.
35 . 62 CWN 765: AIR 1958 Cal 657 [LNIND 1958 CAL 171]
36 .Vikram Yashwant v Eknath Trimbak Gadekar 1977 Mah LJ 520 [LNIND 1977 BOM 51].
37 .Cadija Umma v Manisappu AIR 1939 PC 63, p 65, per Sir George Rankin.
38 .State of Punjab v Kesari Chand (1987) 1 Recent Cr R 297 (P&H); relying on Craies on Statute Law, seventh edn, p
213; Probandar Nagar Palika v VG Patel (1975) 16 Guj LR 963.
39 .Pappathi Ammal v Nallu Pillai AIR 1964 Mad 173 [LNIND 1963 MAD 197].
40 . (2005) 5 SCC 1 [LNIND 2005 SC 472].
41 .Bangalore Water Supply and Sewerage Board v A Rajappa AIR 1987 SC 548; (1978) 2 SCC 213; [1978] 3 SCR 207
[LNIND 1978 SC 70]; (1977) 1 SCJ 481; (1978) Lab IC 778; (1978) 36 FLR 266.
42 . The court referred the Bangalore Water Supply case for reconsideration to a larger Bench.
43 . AIR 1957 SC 121 [LNIND 1956 SC 104], p 126 and 27; Ram Saroop v SP Sahi AIR 1959 SC 951 [LNIND 1959 SC
53], p 958.
44 .Commr of Gift-tax v Getty Chettiar [1972] 1 SCR 736, p 742, per Hegde J.
45 .Rajasthan State Electricity Board v Labour Court, Rajasthan AIR 1966 Raj 56.
46 .Kanniyan v Income-tax Officer [1968] 68 ITR 244 (SC), [1968] 2 SCR 103 [LNIND 1967 SC 310]; Pushpa Devi v Milkhi
Ram (deceased) (1990) 2 SCC 134 [LNIND 1990 SC 69]; Commr of Income-tax v JIH Gotla [1988] 156 ITR 323 (SC);
Commr of Income-Tax, Bangalore v JH Gotta, Yadagiri [1985] 4 SCC 343 [LNIND 1985 SC 270]; State of Kerala v
Malayalamanorama (1994) Ker LT 992 (SC); KVS Vasan Bros v Official Liquidator, Associated Banking Corpn of India
Ltd AIR 1952 Tr&Coch 170; Official Liquidator v Jugal Kishore AIR 1939 All 1; SubodhChanda Das v Panchu Khan AIR
1954 Pat 367, (1954) ILR 33 Pat 49.
47 .Employers of the Osmania University v Industrial Tribunal AIR 1960 AP 388 [LNIND 1959 AP 207], p 391.
48 .R Balakrishna Rao v Haji Abdulla Sait(1980) 1 Rent CJ 179 (SC).
49 .Knightsbridge Estate Trust v Byrne [1940] AC 613; Partap Singh v Gulzari Lal AIR 1942 All 50, p 65; Emperor v BH
Desouza (1911) ILR 35 Bom 412 p 417; BapuVithal v Secretary of State AIR 1932 Bom 370, p 374; Kartik Chandra v
Harsh Mukhi AIR 1943 Cal 345, p 354; MahommadManjuralHaque v Biseswar AIR 1943 Cal 368; Narain Das v Karachi
Municipality AIR 1933 Sind 258-59.
50 . AIR 1954 Mad 377 [LNIND 1953 MAD 124]
51 .Adamson v Melbourne and Metropolitan Board of Works AIR 1929 PC 181, p 183, per Anglin CJ; Jainarayan
Ramkishan v Moti Ram Ganga Ram AIR 1949 Nag 34: except in General Clauses Act;Biswanth Naik v Shaikh Dilbar
28 Cut LT 6; Khazan Singh v President of India AIR 1968 Punj 478; where it was observed that such reference is
unwarranted.
52 .Sales-tax Officer v PK Nair 1980 Kant LT 940.
53 .Tulsiram Shaw v RC Pal Ltd 89 CLJ 127; Guru Prasad v Rly Board (1973) 77 CWN 249, 254, per BC Mitra J.
54 .Cibatul Ltd v Union of India (1980) 21 Guj LR 284.
55 .Menna v Lachhman AIR 1960 Bom 418 [LNIND 1959 BOM 72], p 423:
This seems peculiarly applicable to matrimonial offences of desertion and cruelty, causes relating to which are by far the
most common of the matrimonial causes contested before the courts. The circumstances vary infinitely from case to
case and the modes of life involved at times present sharp contrasts. The importance, therefore, of satisfying the
language of the section cannot be overstressed in a breach of the law which has been predominantly judge-made.
56 . AIR 1960 Punj 256, p 260.
57 . AIR 1964 SC 1667 [LNIND 1964 SC 148].

Page 14 of 14
End of Document
Headings
NS Bindra
and its Parts
Headings
The heading prefixed to sections or set of sections are preambles to those sections.58 Headings are not analogous
to marginal notes of the sections in an enactment but are descriptions of the articles mentioned in that class.59
In Frick India Ltd v Union of India,60 Tariff Item no. 29A read as refrigerating and air-conditioning appliances and
machinery, all sorts, and parts thereof while sub-item 3 of the Item read as Parts of refrigerating and air-conditioning
appliances and machinery, all sorts. The appellant argued that the heading would prevail over the sub-item so as to
restrict charging of ad valorem duty on factory cooling coils, condensers and compressors. The Court rejected the
argument and held as follows:
It is well-settled that the headings prefixed to sections or entries cannot control the plain word of the provision, they cannot
also be referred to for the purpose of construing the provision when the words used in the provision are clear and
unambiguous, nor can they be used for cutting down the plain meaning of words in the provision. Only in the case of
ambiguities or doubt, the heading or sub-heading may be referred to as an aid in construing the provision, but even in such
a case, it could not be used for cutting down the wide application of the clear word, used in the provision.
Heading and Title
It is not an unusual fact that the heading fails to refer to all the matters which the framers of the section wrote into
the text. The heading is but a shorthand reference to the general subject-matter involved. While accurately referring
to a particular subject, it neglects to reveal that the section also deals with cognate and allied matters. But headings
and titles are not meant to take the place of the detailed provisions of the text. Nor are they necessarily designed to
be reference guide or a synopsis. Where the text is complicated and prolific, headings and titles can do no more
than indicate the provisions in a most general manner; to attempt to refer to each specific provision would often be
ungainly as well as useless.
Heading Miscellaneous
The part of the statute placed under the heading miscellaneous indicates that the sections in that part cannot be
allocated wholly to a part dealing with specific subjects, for the reason that the section entirely fall outside the other
parts or for the reason that they cannot entirely fall within a particular part.61
As Key to the Construction Thereof
In different parts of the Act, there are to be found classes of enactments applicable to some special object. Such
enactments are, in many instances, preceded by a heading, special no doubt in one sense, as addressed to the
object or purpose, but where not otherwise provided for, to accomplish the object. These various headings are not
to be treated as if they were marginal notes, or were introduced into the Act merely for the purpose of classifying
the enactments. They constitute an important part of the Act itself. They may be read, not only as explaining the
sections which immediately follow them, as a preamble to a statute maybe looked to, to explain its enactments, but
as affording a better key to the construction of the sections which follow than might be afforded by a mere
preamble.62
Page 2 of 6
Headings
Cannot Restrict the Meaning of Sections
If the language of a section is clear, headings are not to be taken into consideration.63 It was held in Municipal
Corporation for the City of Thane v Asmaco Plastic Industries64 that the classification of several goods under
particular headings under Maharashtra Municipalities (Octroi) Rules 1968 and Bombay Municipal corporation (Levy)
of Octroi Rules 1965 was not on any scientific basis. Hence, the heading itself cannot control the meaning to be
given to each of such goods. However, a due consideration must be given to the heading and the marginal note for
the purpose of arriving at a conclusion as to what according to the legislature was the purpose of enacting the
section.65 Being part of the statute it prima facie furnishes some clue as to the meaning and purpose of the
section.66
Useful aid in cases of doubt
No doubt, headings in the body of an Act are of some help in clearing up obscurities when there is an ambiguity, but
they cannot control the provisions of the sections when they are unequivocal and clear.67 If there is any doubt in
the interpretation of the words in a section, the heading certainly helps us to resolve the doubt,68 and may be
referred to as an aid to construction.69 In Queen v Local Government Board,70 Brett LJ observed:
I cannot come to the conclusion that the heading of a series of sections introduced into an Act of parliament is not to be
considered as part of the Act. I think that the word appeal at the head of the section may properly be considered as part,
and used for the purpose of construing any doubtful matter in the section under that heading.
Marginal Notes
In order to find out the legislative intent, we have to find out what was the mischief that the legislature wanted to
remedy. Courts have settled that marginal notes are to be construed as if they were a part of the section. Marginal
notes form a guide to the mind and intendment of the legislature.71 A marginal note is merely an abstract of the
clause intended to catch the eye,72 and furnishes a clue to the meaning and purpose of the section.73 It can afford
little guidance to the construction of an enactment,74 especially when the language is plain and unambiguous.75
There has been considerable divergence of judicial opinion upon the question whether marginal notes ought to be
relied upon in the interpretation of a statute. If the marginal note or heading is an indication, it certainly is a relevant
factor to be considered in construing the ambit of the section.76
Hints on Drafting
In Russells Legislative Drafting and Forms,77 it is observed:
Marginal notes should be framed with great care. Their object is to give a concise indication, not a summary, of the
contents of the sections, and to enable a reader to glance quickly through them relying upon their accuracy.
In Mathai v State of Kerala,78 the Court had to consider the use of the expression any instrument occurring in
Section 326 of the IPC. Grievous hurt was defined in Section 320 and the heading of Section 326 indicated that
only those voluntary acts which caused grievous hurt through dangerous instruments would be punishable. The
Court relied on the marginal note which specified that causing grievous hurt would be punishable only if caused by
a dangerous instrument. Therefore, the court held that an act of grievous hurt when the size of the stone used was
not such that it could qualify as dangerous instrument.
The divergence of judicial opinion was attempted to be settled by the pronouncement of the Supreme Court in SP
Gupta v Union of India,79 in the following words:
Whether the marginal notes would be useful to interpret the provisions and if so to what extent depend upon the
circumstances of each case. No settled principles applicable to all cases can be laid down in this fluctuating state of the law
as to the degree of importance to be attached to a marginal note in a statute. If the relevant provisions in the body of the
Page 3 of 6
Headings
statute firmly point towards a construction which would conflict with the marginal note, the marginal note has to yield. If
there is any ambiguity in the meaning of the provisions in the body of the statutes, the marginal note may be looked into as
an aid to construction.
A stronger assertion on the subsidiary role of marginal notes came in Kalawati Bai v Soriyabai,80 where the
Supreme Court held as follows:
Nothing turns on the marginal notes as it is usually not resorted to for construing meaning of a section, particularly when the
language is plain and simple.
In State v Mansi Karamsi,81 it was pointed out that the marginal note in clause (f) of Section 61 (1) of the Bombay
Municipal Boroughs Act 1925, namely, milk shops, in terms refers not only to places at which trade or business is
done in milk, but also to places, at which trade or business is done in sweetmeats, butter, and other milk products,
and to places for stabling milk cattle.
In BEST v Laqshya Media Pvt. Ltd,82 it was argued that the marginal note to Section 460M of the Mumbai
Municipal Corporation Act, 1888, ought to be factored when considering whether a previous tender for
advertisement spaces could be cancelled and fresh tenders could be issued. The Court rejected the reliance on the
marginal note as the provision was clear and unambiguous. The Court observed:
The marginal note to a section cannot be referred to for the purpose of construing the section but it can only be relied upon
as indicating the drift of the section.
When not Assented to by Legislature
Secondly, on the assumption that the marginal note is not put there by the legislature or is assented to by them, it
does not form part of the Act, and accordingly cannot be used in the construction of such an Act.83 In case of
ambiguity, marginal notes can be looked into.
Lord Macnaughten observed in Thakurain Balraj Kunwar v Rai Jagat Pal Singh:84
It is well-settled that marginal notes to the sections of an Act of parliament cannot be referred to for the purpose of
construing the Act. The contrary opinion originated in a mistake, and it has been exploded long ago. There seems to be no
reason for giving the marginal notes in an Indian statute any greater authority than the marginal notes in an English Act of
parliament.
When Assented to by the Legislature
However, when the marginal note is assented to by the legislature, it forms a part of the Act and may be relied on
for the purposes of interpretation. In Ramsarandas v Bhagwat Prasad,85 the Court had to interpret Section 20 of
the Agra Pre-emption Act, 1922 to test whether the defendant vendee could defeat the plaintiffs right of pre-emption
by acquisition of an interest equal or superior to plaintiffs in the mahal after the institution of the suit but prior to the
passing of the decree by the first Court. On the use of marginal notes, King J. held:
The question whether a marginal note can be referred to for an exposition of the meaning of section depends upon whether
the note has been inserted by, or under the authority of, the legislature...there has been some conflict of judicial opinion
whether marginal notes may be referred to when the true meaning of section of an English statute enacted after 1849 is in
doubt. The conflict of opinion, however, arises solely from the uncertainty existing in the minds of the Judges on the point
whether the marginal notes can be considered to have been inserted with the assent of the legislature. All the English
rulings which I have seen referred to on this point clearly imply, or expressly hold, that marginal notes can be referred to for
the purpose of interpretation if they can be regarded as inserted or assented to, by the legislature.
Thirdly, where the marginal note is inserted by or under the authority of the legislature, it forms part of the Act and
as such like the headings of chapters or the headings of groups of sections can properly be regarded as giving a
contemporanea expositio of the meaning of a section, when the language of the section is obscure or ambiguous.
Page 4 of 6
Headings
Amendment of Section without Amendment of Marginal Note
If the concerned provision is amended, the marginal note would not control the meaning of the substantive
provisions so as to nullify the amendment. Hence, in Nagendra Kumar Roy v Commr for Port of Calcutta,86 the
unamended Section 84 of the Calcutta Port Act, 1890, contained the expression previous sanction. The word
previous was omitted from the section as amended in 1951, but was retained in the marginal note. The Court held
that the dropping of the word previous was deliberate and the marginal note could not govern the substantive
provisions.
Marginal Notes in Different Statutes
In State of Bombay v Vishwakant Shrikant Pandit,87 the respondent contended that Section 6 (1) of the Prevention
of Corruption Act, 1988, was to be interpreted in light of the marginal note appended to Section 197 (1) of the IPC,
since the former section was modelled on the latter. The court rejected this contention, and held:
So far as the marginal note is concerned, there has been a difference of opinion whether it can or cannot be used in order
to aid in the interpretation of the language of a statute. It cannot, of course, be used to control the plain meaning of an Act,
but one view has been that it can be taken into consideration when there is a doubt as to what certain words which are
employed in an enactment mean. If we look at the marginal note in the present case, that is perfectly general, and it throws
no light whatsoever upon the meaning of the section if we take it by itself. The argument really speaking is that what throws
light upon the meaning of the Sub-section is the change in the marginal note, if we compare the marginal note of Section
197 (1), upon which Section 6 (1) is modelled, with the language of the latter. But we find no authority whatsoever for
making a use of the change in such a manner, when the enactments are not the same, but are statutes which can possibly
be said to be in parimateria.
There is no authority whatever for making use of the change in the marginal note when the enactments are not the
same, but there are statutes which can possible be said in parimateria
Side-notes or Side-headings
Lord Reid observed in Chandler v Director of Public Prosecutions:88
Side-notes cannot be used as an aid to construction. They are mere catch words, and I have never heard of it being
supposed in recent times that an amendment to alter a side-note could be proposed, in either House of parliament. Side-
notes in the original Bill are inserted by the draftsman. During the passage of the Bill through its various stages
amendments to it or other reasons may make it desirable to alter a side-note. In that event, I have reason to believe that
alteration is made by the appropriate officer of the House-no doubt in consultation with the draftsman. So side-notes cannot
be said to be enacted in the same sense as the long title or any part of the body of the Act.
Headings are treated differently from side-notes. The courts are not entitled to look at the side-headings of statute.
The legislature is not responsible for the side-heading.89
Conflict over Utility Continues
The above reported case law shows that the conflicting opinions continue to be voiced in judicial opinions in relation
to the marginal note. Whilst there are cases where courts have relied on marginal notes, these are often
outweighed by others where the court has rejected them. A number of recent decisions of the apex court have
reiterated the principles that the marginal note does not control the plain meaning of the statute90 However, in
Guntaiah v Hambamma,91 the Supreme Court frowned upon the decision of the Karnataka High Court wherein the
High Court ruled that relying on the marginal note meant that the restriction on alienation specified in Rule 43G of
the Karnataka Land Revenue Rules, 1960, would not apply to land which had been conferred under Rule 43 J. This
is because whilst the marginal note of Rule 43G stated that it was granting land subject to conditions no such
qualification had been made in relation to land granted under Rule 43J. In overruling the decision of the High Court,
Page 5 of 6
Headings
the apex court articulated a restrictive formulation on marginal notes and observed that the marginal note or
heading of the section is not a part of the section and cannot be considered as a legitimate aid to construction.
58 .Official Assignee v Chuniram Motilal AIR 1933 Bom 51, p 57, (1933) ILR Bom 346; Maxwell, Interpretation of Statutes,
twelfth edn, (ex p St J Langan), 1969; Savitri Devi (Mst) v Dwarka Prasad AIR 1939 All 305, p 307; Durgadas v State
56 Bom LR 188; Fletcher v Birkenhead Corpn [1907] 1 KB 205, 218; Martins v Fowler [1926] AC 746, p 750, per Lord
Darling; Union Steamship Co of New Zealand v Melbourne Harbour Trust Commr [1884] 9 AC 365 ; Ramashanker v
Sindri Iron Foundry AIR 1966 Cal 512 [LNIND 1965 CAL 193], p 530; Salaam M Bavazier v Mdazgaruddin AIR 1995
AP 312 [LNIND 1995 AP 2]; Referring to Bhinka v Charan Singh AIR 1959 SC 960 [LNIND 1959 SC 77], 1959, Cr LJ
1223, 1959 All LJ 557 (SC).
59 .Municipal Corpn for Greater Bombay v Monopol Chemicals Pvt Ltd AIR 1988 Bom 217 [LNIND 1988 BOM 130], 1988
Mah LJ 353 [LNIND 1988 BOM 130], (1988) 25 Reports 294, 1988 Mah LR 884, (1988) 2 Land LR 384, (1988) 3 Bom
CR 197 [LNIND 1988 BOM 130]; overruling Municipal Corpn, Greater Bombay v Forge & Co AIR 1987 Bom 321
[LNIND 1987 BOM 199].
60 . AIR 1990 SC 689 [LNIND 1989 SC 638]; Siba Shankar Sahu v Utkal Asbestos Ltd (1994) 1 OLR 165 (Ori).
61 .Mahijibhai Mohanbhai v Patel Manibhai AIR 1965 SC 1477 [LNIND 1964 SC 349].
62 .Craies on Statute Law; Bhinka v Charan Singh AIR 1959 SC 960 [LNIND 1959 SC 77]; Ramesh Kumar v State of
Madhya Pradesh 1983 MPLJ 204.
63 .Kalyanji v Ram Deen Lala AIR 1925 Mad 609 [LNIND 1924 MAD 338], p 612, (1925) ILR 48 Mad 395;
Shadanchandra v Sheonarayan Golabrai (1933) ILR 60 Cal 936, AIR 1933 Cal 699; Harprasad Singh v District
Magistrate AIR 1949 All 403 [LNIND 1948 ALL 57]; Ram Chandra Dev v Bhola Patnaik AIR 1950 Ori 125, p 127; R v
Surrey [1947] 2 All ER 276; Gangabai v Vatsalabai 1966 MLJ 13 (notes).
64 .Municipal Corpn for the City of Thane &Ors v Asmaco Plastic Industries &Ors (1999) (1) SCC 372.
65 .Madan Lal v Changdeo Sugar Mills AIR 1958 Bom 491 [LNIND 1957 BOM 122], p 496; Ramaben v Jyoti Ltd AIR 1958
Bom 214 [LNIND 1956 BOM 145]; Wazirkhan Sherkhan v Shrikrishna Gyanodaya Cottage Industries 1979 Mah LJ
326; Refugee Co-op Hsg Society Ltd, New Delhi v Harbans Shanti Bai 1977 Jab LJ 147.
66 .Oriental Insurance Co Ltd &Ors v Hansrajbhai v Kodala &Ors (2001) 5 SCC 175 [LNIND 2001 SC 637].
67 .Yogendra Khan v State of Bihar 1983 Pat LJR 214; Asha Devi Jauhari v Sharda Devi 1977 All WC 517.
68 .State Bank of India Staff Assn v Election Commission of India (1994) 1 BLJR 128; Krishna Nand Singh v Commr,
Varanasi Division, Varanasi 1987 All LJ 1236; Bhinka v Charan Singh AIR 1959 SC 960 [LNIND 1959 SC 77], p 966;
Kesava Pillai v Paravati Amma 1968 Ker LJ 736.
69 .Suresh Kumar Sohanlal v Town Improvement Trust, Bhopal 1975 MPLJ 413 [LNIND 1974 MP 30].
70 . (1882) 1 QBD 309 , p 321; but se Kalyanji v Ram Deen Lala (1925) ILR 48 Mad 395, AIR 1925 Mad 609 [LNIND
1924 MAD 338], p 612; Qualter, Hall & Co v Board of Trade [1961] 1 All ER 210; on appeal Flae v Withers [1961] 3 All
ER 389.
71 .Film Exhibiters Guild v State of Andhra Pradesh AIR 1987 AP 110, (1987) 1 Andh LT 154, (1987) 1 APLJ 330 (HC).
72 .Vadlamudi v State of Andhra Pradesh AIR 1961 AP 448 [LNIND 1960 AP 212], pp 451 and 52, per
Anantanarayanaayyar J; Jayalakshmi Co v CIT AIR 1967 AP 99 [LNIND 1966 AP 89], p 101.
73 .Navnagan Transport and Industries Ltd v Parikh AIR 1965 Guj 105, p 190, per PN Bhagwati J: the marginal note to the
amended section clearly indicates the drift of the section; JuvanSinhji v Balbhadrasinhji AIR 1963 Guj 209, p 219, per
PN Bhagwati J; Bengal Immunity Co Ltd v State of Bihar AIR 1955 SC 661 [LNIND 1955 SC 122].
74 .Board of Muslim Wakfs, Rajasthan v Radhakishan AIR 1979 SC 289 [LNIND 1978 SC 302], p 295.
75 .P Udaya Shanker v Andhra Bank 1984 Lab IC 149 (Mad); Shakuntala v Mahesh Atmaram Badlani AIR 1989 Bom 353
[LNIND 1989 BOM 79], 1989 Mah LJ 332 [LNIND 1989 BOM 79], (1989) 1 Bom CR 575; Sharaf Shah Khan v State of
Andhra Pradesh AIR 1963 AP 314 [LNIND 1961 AP 52], p 322, per Krishna Rao J; quoting in Attorney-General v Great
Eastern Rly Co [1879] 11 Ch D 449, p 461, per Baggalay LJ; Balraj Kunwar v Jagatpal Singh 31 IA 132, p 142 per Lord
Macnaughten; Bangalore Co Ltd v Corpn of Bangalore [1961] 3 SCR 707 [LNIND 1961 SC 44], p 711, per Kapu J.
Page 6 of 6
Headings
76 .Shree Sajjan Mills Ltd v Commr of Income-tax, Bhopal, Madhya Pradesh AIR 1986 SC 484 [LNIND 1985 SC 325],
(1985) 4 SCC 590 [LNIND 1985 SC 325], (1986) SCC 82 (Tax), 1986 (2) Supreme 45, 1986 Tax LR 48, (1985) 23
Taxman 37, (1985) 79 (3) Taxation 173, (1985) 49 Cur Tax Rep 193, (1985) 19 Tax Law Rev 341, (1985) 42 ITJ 1109,
[1985] 156 ITR 585 [LNIND 1985 SC 325], (1986) UPTC 786.
77 . Eighth edn, p 95.
78 . (2005) 3 SCC 260 [LNIND 2005 SC 37]. For a ruling to a similar effect see also Anwarul Haq v State of UP (2005) 10
SCC 581 [LNIND 2005 SC 425]
79 . AIR 1892 SC 149, para 1096.
80 . AIR 1991 SC 1581 [LNIND 1991 SC 254], (1991) 3 SCC 410 [LNIND 1991 SC 254], AIR 1991 SCW 1525.
81 . AIR 1954 Bom 55 [LNIND 1953 BOM 38]; RS Joshi v Ajit Mills (1977) 4 SCC 98 [LNIND 1977 SC 260]; Madurai
Coats Ltd v Workmen AIR 1977 SC 449 [LNIND 1976 SC 310].
82 . (2010) 1 SCC 620 [LNIND 2009 SC 2042]
83 .K Kelppan v State of Kerala 1990 Cr LJ 697 (Ker); Claydon v Green (1863) 37 LJCP 226, p 230, per Bovil CJ; AG v
Great Eastern Rly Co (1879) 11 Ch D 449, per Bhaggally LJ: is it not mere abstract of the clause intended to catch the
eye: asked James LJ; Sutton v Sutton (1882) 22 Ch D 511, 513, per Jessel MR; Minho v Emperor AIR 1938 Sind 9,
per Rup Chand Bilaram acting CJ; Balaji Singh v Gangarama 1927 Mad 85, p 87, per Devadass J: even when section
is not clear; Nawab Bahadur of Murshidabad v Gopinath Mandal 6 IC 392, p 395 (Cal); Brijmohan Singh v Tulsi Ram
Sakharam AIR 1940 Nag 377; (1940) ILR Nag 53; Anandrao v Board of Revenue AIR 1965 MP 237 [LNIND 1962 MP
176], p 245, per Newaskar J: given on convenience or reference.
84 . 31 IA 132, 142-43, 11 Bom LR 516, 1 ALJ 384, 8 CWN 699, 14 MLJ 149 (PC); Dukhi Mullah v Halway ILR 23 Cal 55;
Punardeo Narain v Ram Sarup ILR 25 Cal 858; Howrah Municipality v Levis & Co ILR 47 Cal 809, 812; Emperor v
Alloomiya Husain ILR 28 Bom 129, 142; Sholapur spinning and Weaving Co v Pandhrainath AIR 1928 Bom 341, 343;
Sheikh Chaman v Emperor 21 Cr LJ 143 (Pat); Jamnadas Gordhandas v Damodardas AIR 1927 Bom 424: cannot be
taken as an index to what the section was meant to apply to; Re Ratanji Ramaji (1942) ILR Bom 39, AIR 1941 Bom
397, 402 (SB), per Kania J; Kameshwar Prasad v Bhikan Narian Singh ILR 20 Cal 609: the state publication of the
Indian Acts being framed with marginal notes, such notes may be used for the purpose of interpreting of the Act;
following in Emperor v Wallace Flour Mill Co ILR 29 Bom 193, 197.
85 . AIR 1929 All 53, p 58, (1929) ILR 51 All 411: it was found that in modern statutes, marginal notes are assented to
expressly or tacitly by the legislatures; Shiv Nath v Puran Mal (1942) ILR All 45, AIR 1942 All 19; Ganpat Rai Devji v
Emperor AIR 1932 Nag 174; Emperor v Lukman AIR 1927 Sind 39, p 43; Empeor v Fulabhai Bhulabhai AIR 1940 Bom
363; Emperor v Mumtaz Hussain AIR 1935 Oudh 337; Arun Bhushan Roy v Hari Sardar Pal (1945) ILR 1 Cal 240;
Bashil Oil Mills v State of Maharashtra (1961) ILR Bom 1944, 63 Bom LR 75, 1961 Nag LJ 309.
86 . 58 CWN 527.
87 . AIR 1954 Bom 109 [LNIND 1953 BOM 58]: 55 Bom LR 719.
88 . [1964] AC 763; quoted by GK Mitter J in Rama Shankar Prosad v Sindri Iron Foundry AIR 1966 Cal 512 [LNIND 1965
CAL 193], p 530.
89 .Mirza Mohd Afzal Beg v State AIR 1959 J&K 77, p 79, per Wazir CJ.
90 .Karnataka Rare Earth v The Senior Geologist, Department of Mines and Geology, (2004) 2 SCC 783 [LNIND 2004 SC
109].
91 . (2005) 6 SCC 228 [LNIND 2005 SC 546], para 11.
End of Document
Punctuations and Brackets
NS Bindra
and its Parts
Whether credence should be accorded to the punctuation used in a statute is a question which has obtained varied
answers from courts. There is variation in the manner in which the question has been answered in different
countries.
Regarding Old Enactments in India
Though the punctuation of an Act cannot be discarded wholly, it would be unsafe to allow it to govern the
construction.92 Lord Esher MR dismissed the role of punctuation in interpretation, and held in the context of
brackets in Duke of Devonshire v O Connor:93
It has been said that there are brackets in it, but that we must read it as though the brackets were removed to some other
part of the clause. But if notice is to be taken of the brackets, it must be subject to the language used, and then it may be
shown that either at both ends or at one end of the parenthesis the bracket must have been erroneously placed, and that
the brackets must be put in the right place according to the sense and construction of the language used. To my mind,
however, it is perfectly clear that in an Act of parliament there are no such things as brackets any more than there are such
things as stops.
Maxwell, in Interpretation of Statutes,94 had opined that punctuation was not a very safe guide in the interpretation
of a legislative enactment. However, Krishnaswami Ayyar J, in Veeraraghvulu v President, Corporation of
Madras,95 considered the punctuation in the old Madras Act of 1884, as furnishing a clue to the interpretation of a
corresponding section of Madras Act 1904. The learned judge held as follows:
There is no doubt, authority in English cases for this proposition, but no Indian case has been cited to us, and it may be
permissible to express a doubt whether the consideration which induced judges in England to lay down such a rule would
be equally applicable in the construction of statutes in this country. The question, however, does not depend on the
punctuation alone.
In Taylor v Charles Bleach,96 clause (3) of Section 37 of the Divorce Act, 1869, came up for consideration. The
expression ...order that the husband shall, to the satisfaction of the court, secure to the wife such gross sum of
money, or such annual sum of money for any term not exceeding her own life, as having regard... was in
contention. Scott CJ. observed:
I can see no reason why the punctuation of the editions of the Act issued by the Government of India should be disregarded
for so far as I am aware there is not in India any unpunctuated original statute book.
Hayward J., after referring to Maxwell and the refusal of Lord Esher in Duke of Devonshires case to pause at those
miserable brackets were the sense was strong, proceeded to observe:
It should be no matter of surprise therefore that the old rule be applied to the old regulations promulgated in this country
and it will be found that the privy council remarked upon a consideration of an old Bengal Regulation of 1819 that it was an
Page 2 of 4
error to rely on punctuation in construing the Act of the legislature in the case of the Maharani of Burdwan v Krishna Kamini
Dasi.97
The use of a hyphen was taken notice of by a full bench of seven judges in Isap Ahmed v Abrahamji Ahmadi.98
The question before the Court was the application of Article 127, Schedule I of the Limitation Act, 1908 to
Mohamedans. This became contentious due to the use of a hyphen between the words joint and family in the
Article. The Court considered the use of hyphens, and the majority eventually turned over the omission of the
hyphen in favour of established interpretation, and observed:
In the Limitation Act of 1877 the expression joint family property again appears in the same connection but the Article 127 is
no longer confined to Hindus but applies to any person The intention to couple joint with family is again emphasised by a
hyphen...In Article 127 of the Act of 1908 the wording is precisely the same as in the corresponding Article of the Act of
1877 but the hyphen is omitted. We have, however, for the period of thirty-one years from 1877 to 1908 the definite
indication of the Legislature, as we understand it, that the words in the connection in which they appear should be used in a
particular sense and we do not think the omission of the indicative hyphen after so many years should be taken as
importing an intention that a changed construction should be adopted...
In Gale v Gale,1 the decision turned on the interpretation of the last para of s 3 (1), Indian Divorce Act, 1869, ...
within the local limits of whose ordinary appellate jurisdiction or of whose jurisdiction under this Act, the husband
and wife reside or last resided together. Sir Arthur Reid CJ., with whom Kensington J, concurred, put the matter
thus:
The punctuation of the words above cited the husband and wife reside or last resided together indicates clearly that
together must be read with last resided only. Had the intention of the legislature been to make together apply to reside we
should have expected a comma after reside and after resided.
Rattigan J, who agreed hesitatingly with the majority opined:
Legal documents in strictness should not be punctuated, and I take it that the rule applies equally to Acts of legislatures,
and it may have been for this reason that the comma was omitted after reside.
In Re Krishnaji Gopal,2 the Court made use of the comma after the word conditions and of the omission thereof
after the word circumstances in the expression shall in such circumstances and under such conditions, if any, as
may be specified in the order... enacted in Section 21 of the Bombay Public Security Measures Act, 1947. In
Colour-Chem Ltd v AL Alaspurkar,3 the court relied on a comma to interpret Maharashtra Recognition of Trade
Unions and Prevention of Unfair Labor Practices Act, 1971. It was held that there was a comma in clause (g) of
Item 1, Schedule IV to the Act after the words for misconduct of a minor or technical character. Hence, if clause (g)
were construed to cover even major misconduct the comma would have to be replaced by or. The Court held that
such a substitution could not be done in the context and settings of the said clause. The comma as found in the
clause after providing for the nature of misconduct referred to in the first part of the clause resulted in a shockingly
disproportionate punishment if certain relevant factors, as mentioned in the subsequent part of the clause, were not
considered by the employer.
In the Lahore High Court, Dalip Singh J., in Bhola Singh v Raman Lal,4 opined that a statute must be interpreted
without regard to punctuation. In a later full bench case, Gurmukh Singh v Commissioner of Income-tax,5 Munir J,
observed:
In the interpretation of statutes punctuation, not being a part of the statute to me construed, is not the determining factor
and if the provision, as punctuated leads to an absurd result or conflicts with some other provisions of the statute which is
unambiguous and free from doubt, the punctuation must yield to an interpretation that is reasonable and makes it
consistent with the other provisions of the Act.
It is of course said that punctuations do sometimes lend assistance in the constructions of sentences, but they are
always subordinate to the context and the court may legitimately punctuate or disregard an existing punctuation or
re-punctuate in order to give effect to the legislative intent. Even where a punctuation may be considered and given
weight, for the purpose of discovering the intention of the legislature, it can be done so only where a statute has
Page 3 of 4
been very carefully and accurately punctuated when enacted, and where all other meanings have proved futile.6
When a statute is carefully punctuated and there is doubt about its meaning, a weight should undoubtedly be given
to the punctuation. Hence, punctuation may have its uses in some cases, but it cannot be allowed to control the
plain meaning of a text.7 Punctuation is after all a minor element in the construction of a statute and very little
attention is paid to it by English courts. There is no rule which says that two parts of a sentence separated by a
semi-colon cannot deal with two different states of affairs.8 To construe Acts according to punctuation marks, or
according to absence of punctuation marks, or completion or incompletion of brackets, would be to constitute
legislative enactment according to the intention of the draftsman, and not according to the intention of the
legislature.9
To summarise, while marks of punctuation contained in a statute will not generally be wholly ignored by the court in
interpreting a statutory provision, it may not always be safe to rely on punctuation as a deciding factor. Great
importance will be attached by the court to the language employed by the legislature, and if it is found that the word
used in the section when read as a whole, clearly furnish a clue to the legislative intent underlying the section and
they admit of an interpretation consistent with the said legislative intent, any punctuation mark which is inconsistent
with such construction, will be disregarded and the punctuation will not be allowed to control the plain meaning of
the text.10
92 . 38 Geo 3 c 18.
93 . [1890] 24 QBD 468, p 478.
94 . Halsburys Laws of England, fourth edn, vol 44, para 820; Maxwell, Interpretation of Sttutes, twelfth reprint, 1993, US v
Shreneport Grain and Elevar Co 287 US 77, 77 L Ed 175; Hammock v Loon & T Co 105 US 77, 84, 26 L Ed 1111, p
1114; US v Lacher 134 US 624, p 628, 33 L Ed 1980, 1983; US v Oregan& GP Co 164 U Section 526, p 641, 41 L Ed
541, p 545; Barrett v Van Pelt 268 US 85, 68 L Ed 857.
95 . (1910) ILR 34 Mad 130.
96 . (1914) ILR 39 Bom 182, pp 185, 189 and 90.
97 . (1887) ILR 14 Cal 365.
98 . (1917) ILR 41 Bom 588, pp 613-14, 17, per Shah J.
1 . 47 PR 1911; Leadon v Leadon AIR 1926 Oudh 319: the general rule is that a qualifying word shall be deemed to
qualify the word nearest to it.
2 . AIR 1940 Bom 360.
3 . (1998) 3 SCC 192 [LNIND 1998 SC 152].
4 . AIR 1941 Lah 28, per Tek Chand J, agreed thereto.
5 . AIR 1944 Lah 353, p 367, (1944) ILR Lah 173.
6 .State v Satram Das AIR 1959 Punj 497.
7 .Ashwini Kumar v Arabindo Bose AIR 1952 SC 369 [LNIND 1952 SC 94]; India Sugars and Refineries Ltd v State AIR
1960 Mys 326, p 335; Hari Das Mundra v National Grindlays Bank 67 CWN 58; see also Rajni Kant v State AIR 1967
Goa 40, p 44, per Jetley JC; Rajkumar Singh Ji v Commr of Expenditure-tax AIR 1968 MP 107, p 111, per Bhave J;
Bijibai Saldhana v Rama Manohar Thamu Misra AIR 1969 Bom 103 [LNIND 1968 BOM 16]; Gangu Pundalik
Waghware v Pundalik Maroti Waghware 1979 Mah LJ 862; Dadaji v Sukhdeobabu AIR 1980 SC 150 [LNIND 1979 SC
442].
8 .Pravita Bose v Rupendra Deb [1964] 4 SCR 69 [LNIND 1963 SC 163], p 79, per Sarkar J: the word but after the semi-
colon does not show that what follows must contemplate the case dealt with by the words preceding it.
9 .Jethanand v Nagar Palika 1980 Jab LJ 494.
10 .MG Kollankulan v CIT 1977 Ker LT 990.

Page 4 of 4
End of Document
Illustrations
NS Bindra
and its Parts
Illustrations
An illustration to a statutory provision merely illustrates a principle and ex hypothesi, it cannot be exhaustive.11 It is
illustrative of the true scope and ambit of a section.12 It must be read subject to the relevant provision in the section
itself.13
For Use of Untrained Judiciary
Illustrations merely illustrate a principle and what the court should try and do is to deduce the principle which
underlies the illustrations. It only exemplifies the law as enacted in a statute.14 Stuart CJ, in Nanak Ram v Mehin
Lal,15 gave the following remarks about the illustrations inserted in the Acts in India:
These illustrations, although attached to, do not in legal strictness form part of the Acts, and are not absolutely binding on
the courts. They merely go to show the intention of the framers of the Acts, and in that and in other respects, they may be
useful, provided they are correct. In this country, where the administration of the law is for the most part conducted by
persons who are not only not professional lawyers, but who have had no legal education or training in any proper or rational
sense of the terms, the legislature act with wisdom and salutary consideration of the interests of justice by putting into the
hand of judicial officers appliances such as the illustrations in question for the guidance and direction in the performance of
their duties. But, for myself, I can truly say I have never experienced their utility, and I fear they sometimes mislead, and I
observe they are more regarded in the subordinate courts in these provinces, and even by the pleaders of the High Court
than is the paramount language of the Act itself, of which, however, as I have remarked, they, strictly speaking, form no
part.
Similarly, in the construction of the Straits Settlements EVIDENCE ORDINANCE, Lord Shaw of Dunfermline,
delivering the opinion of the judicial committee in Mahommad Syedol Ariffin v Yeoh Ovi Gark,16 observed:
The illustrations should, in no case, be rejected because they do not square with ideas possibly derived from another
system of jurisprudence as to the law with which they or the sections deal. And it would require a very special case to
warrant their rejection on the ground of their assumed repugnancy to the sections themselves. It would be the very last
resort of construction to make any such assumption. The great usefulness of the illustrations, which have, although not part
of the sections, been expressly furnished by the legislature as helpful in the working and application of the statute, should
not be thus impaired.
It is not to be readily assumed that an illustration to a section is repugnant to it and rejected.17 Illustrations are only
aids to understanding the real scope of an enactment. If the text is clear, and the illustration beyond it, the
illustration cannot extend or limit the scope of the text. In all other cases, the illustration is explanatory of the
section.18 It may be rejected on the ground of its absolute repugnancy to the section itself.19
Higher Value than That of Marginal Note
Being part of the statute,20 and not standing on the same footing as marginal notes,21 they go a great way to
Page 2 of 3
Illustrations
explain the intention of the legislature.22 Beasley J in Ramalinga Mudaliar v Muthuswamiayyar,23 after referring to
Ariffins case and Balla Malls case expressed:
I do not take either judgment to mean that under every circumstance an illustration must be taken as part of the statute. All
that in my view is meant is that court should not lightly disregard the illustrations merely because they do not seem to be in
accord with generally accepted ideas as to the law in other places.
Higher Value than That of Headings
A clue or guidance can be had from the scheme of arrangements or heading of parts and chapters in the Act, only if
the language of the section to be interpreted is not clear enough. But where the legislature has itself tried to make
its meaning clear by providing illustrations under the section, then those illustrations may appear to furnish a better
clue to the meaning sought to be conveyed by the language of the section than the setting in which the section
appears in the Act, or the heading that the sections, parts or chapters carry.24
Conflict between Section and Illustration Thereto
If there by any conflict between the illustration and the main enactment, the illustration must give way to the latter.
In Mst Sajid-un-nisa v Sayed Hidayat Hussain,25 the Court was considering the interpretation of Sections 5 and 13
of the Easements Act, 1882. In this regard, an illustration to Section 13 was invoked by the petitioner to justify
extending the scope of the Act. The Court rejected the argument and held:
If we accept the wide language used in the illustration we really vary the rule of law enacted in the main section itself...If the
meaning of the enactment itself were doubtful, a reference to the illustration in order to clear the meaning, would have been
justified. But, if there be any conflict between the illustration and the main enactment, the illustration must give way to the
latter.
Hence, one may deduce that while it is true that illustrations cannot control the language of a section, but they
certainly afford guidance for its construction.26
In Anirudha v Administrator-General of Bengal,27 the Court was considering the doctrine of relation-back in
Sections 113, 114 and 115 of the India Succession Act, 1925. The appellant sought to rely on an illustration to
Section 115 that would restrict the application of the provision. The court rejected the argument, and held:
It is well settled that just as illustrations should not be read as extending the meaning of a section, they should also not be
read as restricting its operation, especially so, when the effect would be to curtail a right which the plain words of the
section would confer. In the present case there is no difficulty.
In Lalit Mohan Pandey v Pooran Singh,28 the Supreme Court conceded that illustrations are of relevance and have
some value in the construction of sections. However they cannot have the effect of modifying the language of the
statute and they cannot curtail or expand the ambit of the statute.
In Main Pal v State of Haryana,29 the accused had charges framed against him of outraging the modesty of the
mother-in-law and not the daughter-in-law. However, he was convicted for the offence against the daughter-in-law.
He argued that as he had not been charged with the offence against the daughter-in-law, he was not required to
defend himself on that charge, and ought to have been acquitted. The appellate Courts held that it was an error,
and did not prejudice the conviction. The Supreme Court gave a view divergent from the lower Courts. In doing so,
it based its decision on the illustrations appended to Section 215 of the Code of Criminal Procedure, 1973, ruling
thatthe illustrations under a provision of a Statute offer relevant and valuable indications as to meaning and object
of the provision and are helpful in the working and application of the provision. Basing on the distinction drawn
between two illustrations, the Court held that the accused had been materially prejudiced by his conviction. The
Court ordered a re-trial, this time with the accused being charged for offences against the daughter-in-law. The
Court observed:
Page 3 of 3
Illustrations
The illustrations under a provision of a Statute offer relevant and valuable indications as to meaning and object of the
provision and are helpful in the working and application of the provision.
11 .Bama Jena v State AIR 1958 Ori 106 [LNIND 1958 ORI 15], p 108; Govt of Andhra Pradesh v Mahommad Azam
Abdul Bari & Co(1958) 1 Andh WR 299, 1958 Andh LT 185: when the main provision imposed a tax in regard to a
transaction between licensed dealers, the illustrations cannot be construed to take in transactions between other
persons; Mahesh Chand Sharma v Raj Kumari Sharma AIR 1996 SC 869 [LNIND 1995 SC 1223], (1996) 1 JCLR 726.
12 .Aley Ahmad Abdi v Tribhuwan Nath Seth 1979 All LJ 542.
13 .Bhagabat v Madhusudan AIR 1965 Ori 11 [LNIND 1964 ORI 52], p 13, per Baman J.
14 .ChhoteyLal v King-Emperor AIR 1925 All 220; Krishnadas v Dwarkadas (1937) ILR Bom 679, AIR 1936 Bom 459, p
462, per BJ Wadia J.
15 . (1877) ILR 1 All 487, p 495.
16 . 43 IA 256, p 263; Janop v Joseph Heap & Sons Ltd AIR 1918 LB 97, p 99; Hallappa v Irappa (1922) ILR 46 Bom 843,
AIR 1922 Bom 415; Durga Priya v Durga Pada (1928) ILR 55 Cal 154, AIR 1928 Cal 204; Hem Chandra v Narendra
Nath (1934) ILR 61 Cal 148, AIR 1934 Cal 402; Ramaswamy Pattamai v Lakshmi AIR 1962 Ker 313 [LNIND 1961
KER 343], (1962) ILR 2 Ker 132, 1962 Ker LJ 364.
17 .Jumma Masjid Mercara v Kodimaniandra Deviah AIR 1962 SC 847 [LNIND 1962 SC 4], p 851; following Mohd Syedol
Ariffin v Yeoh Ovi Gark 43 IA 256, AIR 1916 PC 242.
18 .Lal Haribansha Nikunja v Bihari (1960) ILR Cal 230; see also KP Sonrexa v State of Uttar Pradesh AIR 1963 All 33
[LNIND 1961 ALL 108].
19 .Shivji Singh v Charan Singh 1973 RCR 43, per Manmohan Singh Gujral J.
20 .Balla Mal v Ahad Shah AIR 1918 PC 249-50, per Lord Atkinson.
21 .Ram Lal v Emperor AIR 1928 Oudh 15-17, per Wazir Hassan J.
22 .Ram Subhag Singh v Emperor 30 IC 465, p 478 (Cal), per Sharfuddin J; Satish Chandra Chakravarty v Ram Dayal De
(1921) ILR 48 Cal 388, p 399; Nga Mya v Emperor 32 IC 641.
23 . AIR 1927 Mad 99 [LNIND 1926 MAD 211], (1927) ILR 50 Mad 94; followed in Official Assignee, Madras v Sampath
Naidu AIR 1933 Mad 795 [LNIND 1933 MAD 166], p 797, per Beasley CJ and Bardswell J.
24 .Amar Singh v Chhajju Singh AIR 1973 P&H 213, p 220, per Suri J.
25 . AIR 1924 All 748

Balmokand v Emperor 16 Cr LJ 354, 28 IC 738.
26 .Jadav Kumar v Pushpabai AIR 1934 Bom 29, p 31, per Chagla CJ; Nga Mya v Emperor 32 IC 641: may be useful if
correct.
27 . AIR 1949 FC 244, p 250; Balmokand v Mst Sohano Kueri (1929) ILR 8 Pat 153, AIR 1929 Pat 164; Govinda Pillai v
Theyammal (1905) ILR 28 Mad 57; Shambhu Mehra v State of Ajmer AIR 1956 SC 404 [LNIND 1956 SC 23].
28 . (2004) 6 SCC 626 [LNIND 2004 SC 569].
29 . (2010) 10 SCC 130 [LNIND 2010 SC 831].
End of Document
Proviso, Exception, Saving Clause
NS Bindra
and its Parts
A proviso is something engrafted on a preceding enactment.30 The proviso follows the enacting part of a section
and is in a way independent of it.31 Normally, it does not enlarge the section, and in most cases, it cuts down or
makes an exception from the ambit of the main provision.32 Provisos are often inserted to allay fears or
misapprehension.33
Proviso
The correct way to understand a proviso is to read it in the context and not in isolation.34 It assumes the tenor and
color of the substantive enactment.35 The proper function of a proviso is to except and deal with a case which
would otherwise fall within the general language of the main enactment,36 and its effect is confined to that case.37
While rulings and text books have assigned many functions for proviso, the court has to use its discretion having
regard to the text and context of a statute.38 There is no magic in the words of a proviso.39 The proper way to
regard a proviso is as a limitation upon the effect of the principal enactment.40 It is an accepted principle of
interpretation of a proviso (which is generally an exception to the main rule) to assign it a meaning which restricts
scope.41 A proviso, which in fact and in substance a proviso, can only operate to deal with a case, which but for it,
would have fallen within the ambit of the section to which it is a proviso. The section deals with a particular field and
the proviso excepts or takes out or carves out from the field a particular portion, and therefore it is perfectly true that
before a proviso can have any application, the section itself must apply. If the proviso is taken away, the enacting
clause is not affected. Hence, if the proviso is unlawful as ultra vires, it can be severed from the rest of the
enactment, as only the offending part will go.42 It is equally true that the proviso cannot deal with any other field
which the section itself deals with.
In Surinder Kumar v State of Haryana,43 the Court had to consider the effect of the proviso appended to Rule 6 of
the Punjab Excise and Taxation Department (State Service Class III - A), 1956. While the Rule spoke of vacancies,
the proviso spoke of cadre posts. The State argued that that the proviso restricted the application of the Rule. The
Court rejected the contention and held as follows:
It is a well-settled principle of interpretation that the Court should give the proviso a restricted meaning so as to bring it
within the ambit of the rule itself. If a proviso can be given two interpretations, the Court should prefer that one which brings
it within the purview of the rule. A proviso is designed to qualify the rule and has no independent existence apart from it.
Therefore, the proviso is to be construed in the light of the rule and not the rule in the light of the proviso...the proviso to
Rule 6 is read in the light of the Rule, it is evident that the term vacancies in the proviso would mean cadre posts. If the
term cadre posts is substituted for the word vacancies then the proviso can be read in conformity with the main rule
otherwise not.
In Baba Ajaibdas v State of Bihar,44 the Court while reconciling the apparent conflict between Proviso (a) to sub-
section (2) of Section 167 and sub-section (1) of Section 437 of the Code of Criminal Procedure, 1973, laid down
the following rules of interpretation:
(i) a proviso is not independent of the section. Its object is to carve out from the main section a class or
category to which the main section does not apply;
(ii) in case of conflict or repugnancy between proviso to a section and another section, the provisions of the
section should prevail;
Page 2 of 11
(iii) that interpretation should be avoided which may lead to friction with other well-established law or may
cause absurd or outrageous consequences.
In Keshav Lal v Commr of Income-tax, Bombay,45 the Court was considering the proviso to Section 24 (1) of the
Income Tax Act, 1961. The provision dealt with setting off of losses in computing aggregate income, while the
proviso stated that any loss sustained in speculative transactions which are in the nature of a business shall not be
taken into account except to the extent of the amount of profits and gains. The petitioner argued that the section
only referred to a case where an assessee was claiming the right to set off a loss which he had suffered under one
head against a profit which he had earned under another head, and the section had no application when the
assessee wished to adjust or set off a loss against a profit under the same head.The Court observed:
A proviso, which is in fact and in substance a proviso, can only operate to deal with a case which but for it would have fallen
within the ambit of the section to which the proviso is a proviso. The section deals with a particular field and the proviso
excepts or takes out or carves out from the field a particular portion, and therefore it is perfectly true that before a proviso
can have any application the section itself must apply. It is equally true that the proviso cannot deal with any other field than
the field which the section itself deals with...The duty of the Court also must be to give to the proviso as far as possible a
meaning so restricted as to bring it within the ambit and purview of the section itself. If a proviso is capable of a wider
connotation and is also capable of a narrower connotation, if the narrower connotation brings it within the purview of the
section then the Court must prefer the narrower connotation rather than the wider connotation... Butand this is equally
cleara Legislature may enact a substantive provision in the garb or guise of a proviso and if the Court is satisfied that the
language used in the so-called proviso is incapable of making it applicable to the section, then the Court, if the proviso has
a clear meaning, must look upon the proviso as a substantive provision enacted by the Legislature and give effect to it as
such. On the basis of its final observation, the Court held that the legislature had intended to enact a substantive provision
through the proviso, and the proviso ought to be interpreted as such. Hence, the Court rejected the argument of the
petitioner.
Similarly, in Udai Bir Singh v State of Uttar Pradesh,46 the proviso to sub-section (a) of Section 12A of the Uttar
Pradesh Imposition of Ceilings on Land Holdings Act, 1960, was independently construed and interpreted as it
reflected that the legislatures intent was not to enact a proviso but a substantive provision. The Court observed that
it was not an inflexible rule that a proviso should generally be interpreted as coming out of an exception of the main
section. When the language of the main enactment is clear and unambiguous, a proviso can have no repercussion
on the interpretation of the main enactment, so as to exclude from it by implication what clearly falls within its
express terms.47 But if the main provision is not clear, the proviso cannot be deemed to be a surplusage and can
properly be looked into for ascertaining the meaning and scope of the main provision.48
A proviso is to be strictly construed and it has no existence apart from the provision which it is designed to limit or
qualify. Generally speaking, a proviso is intended to restrain the enacting clause and except something which would
have otherwise been within it or in some measure to modify the enacting clause. It is a rule of interpretation that the
appropriate function of a proviso is to restrain or modify the enacting clause, or preceding matter, and it should be
confined to what precedes unless the intention that it shall apply to some other matter is apparent.49
In Lakshmi v Official Assignee,50 the Court was considering the proviso to Section 7 of the Presidency Towns
Insolvency Act, 1909. Section 7 contained the expression the Court shall have full power to decide all questions of
priorities, and all other questions whatsoever, whether of law or fact, which may arise while the proviso to the
Section read as Provided that, unless all the parties otherwise agree, the power hereby given shall, for the purpose
of deciding any matter arising under Section 36, be exercised only in the manner and to the extent provided in that
section. It was argued that the proviso curtailed the operation of the Section in so far as it applied to proceedings
under Section 36 . The Court agreed with this argument, and held:
Turning now to the language of the proviso, it will be noticed that it definitely states that the power conferred by the body of
the section is restricted to the manner and to the extent provided in Section 36 for the purpose of deciding any matter
arising under Section 36, subject to the qualification however that if all the parties otherwise agree, the jurisdiction may be
exercised even in such matters without any limitation. The difficulty however is created by the language employed in the
proviso when it states for the purpose of deciding any matter arising under Section 36 as the meaning of this part of the
proviso is by no means clear...The object of the proviso sometimes, however, is to curtail to some extent the very wide
jurisdiction conferred upon the court by the main body of the section.
Ordinarily, a proviso is no doubt designed to restrict rather than to enlarge the provision to which it is appended, but
this is not an inflexible rule and there are cases in which the language might well lead to the conclusion that the
Page 3 of 11
legislature intended to exercise its enacting power. If after a careful examination of the proviso, the provision to
which it is attached and the Act as a whole, the court comes to the conclusion that the legislature intended to create
a liability; it is the duty of the court to give effect to the intention even though it is embodied in a proviso. The
substance and not the form must be looked at for as pointed out by Craies on Statute Law, that which is in form a
proviso may in substance be a fresh enactment adding and not merely qualifying that which comes before.51
After a review of the authorities, a full Bench of the Punjab High Court has held in Khanchand Tikkaram v State of
Punjab,52 that provisos added to a section can be of three types. One is that a proviso may be intended to except
or take out of the purview of the enactment a certain class or certain contingency. In the second type of cases, the
object of the proviso is merely to qualify the purview. The third is the one usually known as the saving clause.
Where the purview of the section and the proviso cover the same field and the two are irreconcilable, the proviso is
given its full effect since it happens to be the last expressed intention of the legislature. The courts always presume
that the legislature inserted every part of the statute for a purpose and the legislative intention is that every part of
the statute should have effect.
Application
A proviso must be considered in relation to the principal matter to which it stands as a proviso.53 The section must
be read along with the proviso as a whole. It is impossible to read the section as it were contained in watertight
compartments. It may be that read as a whole, the effect of the proviso is to qualify the words which immediately
precede it,54 whether proviso to all preceding matters or only to those immediately preceding. The general rule, no
doubt, is that the operation of a proviso should be confined to that clause or portion of the statute which directly
precedes it, but the rule will not be applicable wherein so construing it some repugnancy or absurdity occurs. In any
view, whether a proviso is construed as restricting the main provision or as a substantive clause, it cannot be
divorced from the provision to which it is attached as a proviso. It must be construed harmoniously with the main
enactment.55
Object of proviso
Where the enacting clause is general in it language and objects, and a proviso is afterwards introduced, that
proviso is construed strictly and takes no case out of the enacting clause which does not fall fairly within its terms.
In short, a proviso carries special exceptions only out of the enacting clause, and those who set up any such
exception, must establish it as being within the words as well as within the reason thereof.56 A court should not so
construe a proviso as to attribute to the legislature an intention to give with one hand and take with another. A
sincere attempt should be made to reconcile the enacting clause and the proviso and to avoid repugnancy between
the two.
Proviso Embraces Field Covered by Main Section
But where there is a doubt as to the true meaning of the substantive part of a section, it is surely legitimate to look
to the words of a proviso in order to determine which interpretation is correct.57
Proviso Subsidiary to Main Section
A proviso to a section is not independent of the section calling for independent consideration or construction
detached from the construction to be placed on the main section as it is merely subsidiary to the main section and is
to be construed in the light of the section itself. The object of the proviso is to carve out from the main section a
class or category to which the main section does not apply; and in so carving out, the court has always to bear in
mind what is the class referred to in the section and must also remember that the carving out intended by the
proviso is from the particular class dealt with by the main section and from no other class. The proviso cannot
possibly deal with an entirely different topic or subject.58 A proviso depending upon the subject matter can be
treated as an independent substantive proviso. It is well recognised that in exceptional cases, a proviso may be a
substantive provision in itself.59
Proper Function
The proper function of a proviso is that it qualifies the generality of the main enactment by providing an exception
and taking out, as it were, from the main enactment, a portion which, but for the proviso, would fall within the main
enactment. Ordinarily, it is foreign to the proper function of a proviso to read it as providing something by way of an
addendum or dealing with a subject which is foreign to the main enactment. It is a fundamental rule of construction
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that a proviso must be considered with relation to the principal matter to which it stands as a proviso. Therefore, it is
to be construed harmoniously with the main enactment. To put it in other words, a sincere attempt should be made
to reconcile the enacting clause and the proviso, and to avoid the repugnancy between the two.60
In Satnam Singh v Punjab and Haryana High Court,61 the Court had to consider the proviso to Article 229 (2)of the
Constitution of India, which carved out an exception requiring approval of the Governor in respect of rules so far as
they relate to salaries, allowances, leaves or pensions. On the question of whether all rules framed by the High
Court required the approval of the Governor, the Court answered in the negative, and held:
It is a rule of law that a proviso should receive a strict construction. A proviso has to be strictly construed in as much as it
carves out an exception to the general rule. The general rule enacted in the main part is not to be unduly restricted by
expanding the context of the proviso which is intended to carve out the exception from the general rule...To read the
proviso to require approval of entire set or rules, including those which do not relate to salaries, allowances, leave or
pensions would be to enlarge the scope of proviso by reading into it more than what is enacted therein.
In Broach Co-operative Bank v Commissioner, Income-tax,62 it was contended that Section 8 of the Indian Income
Tax Act, 1922, that had three provisos appended to it, ought to be construed in light of proviso 1 and that provisos 2
and 3 must be given effect to after due effect has been given to proviso 1. Chagla CJ, repelled the contention, and
observed:
But to my mind the proper canon of construing a section which has several provisos is to read the section and the provisos
as a whole, try and reconcile them and give a meaning to the whole of the section along with the provisos which is a
comprehensive and logical meaning.
In TS Kothandaraman v Sub-collector, Mettur,63 the petitioner argued that the provisos to amended Section 3
(d),Tamil Nadu Debt Relief Act, 1980, were to be read in order of priority i.e. the first proviso would prevail over the
others, and so on. The Court rejected this argument, and held:
When the three provisos (v), (vi) and (vii), are intended to serve the same purpose, that is, finding out whether a particular
person comes within the purview of the Act or not, the legislature could not have provided different and inconsistent tests in
respect of the same person. Therefore, giving a harmonious construction to the said provisos and reading them conjointly,
the only conclusion possible is that the proviso acts on different sets of individuals and not on due and the same set of
persons.
Hence, the true principle undoubtedly is that the sound interpretation and the meaning of the statute on a view of
the enacting clause, saving clause and proviso, taken and construed together, is to prevail.64
In CIT v Shelly Products65 the court held:
Where the proviso consists of two parts, one part may be declaratory but the other part may not be so. Therefore, merely
because one part of the proviso has been held to be declaratory it does not follow that the second part of the proviso is also
declaratory.
Proviso Repugnant to Enacting Part
Where a section of an Act contains two provisos and the latter of the two is repugnant in any way to the first
proviso, it must prevail, for it stands last in the enactment and so to quote Lord Tenterden CJ in Rex v Justices of
Middlesex,66 speaks the last intention of the makers.67
Repeal of Enactments
When the enactment is repealed, the proviso falls with it.68
In Togru Sudhakar Reddy v Govt of Andhra Pradesh,69 the Court had to consider the provisos to Section 31 (1)(a)
of A.P. Co-operative Societies Act, 1964. A third proviso had been added to the Section, which read as provided
also that two women members shall be nominated by the Registrar to the Committee...such nominated women
members shall...have the right to vote and otherwise to take part in the proceedings of the meetings of the
Committee. However, Section 31 (1)(a) did not confer any power of nomination on the Registrar. Hence, it was
argued that the proviso was repugnant to the main provision. The Court rejected this contention, and held:
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But when we come to the impugned third proviso, there is a marked departure. It confers power on the Registrar to
nominate two women members to the managing committees of the prescribed societies. The power of nomination is not
covered by the enacting clause; nor does the third proviso speak of power of nomination in accordance with the bye-laws.
The third proviso is, therefore, no doubt at variance with what is contemplated by the enacting clause. On this basis, we are
not inclined to set aside the proviso. As already stated by us, we have not come across any ruling in which a proviso at
variance with the enacting clause was struck down. We consider the impugned third proviso as an independent provision
since it dispenses with resort to bye-laws for the purpose of nomination of women members. The express language
employed in the proviso cannot be ignored by us. The impugned third proviso ought to have been inserted by the draftsman
as an independent provision and that would have avoided the present controversy.
Exception
An exception exempts something which would otherwise fall within the purview of the general words of the statute.
It is a familiar principle of statutory construction that where you find in the same section express exceptions from the
operative part of the section, it may be assumed, unless it otherwise appears from the language employed, that
these exceptions were necessary, as otherwise the subject-matter of the exceptions would have come within the
operative provisions of the section.70 It is not possible to hold that an exception refers to a different subject from the
general rule to which it is an exception.71 Sometimes, it is also used to explain the general words of the Act and to
exclude some ground of misinterpretation which would extend it to cases not intended to be brought within its
operation or purview.72 Where the legislature desires to enact an exception to any provision, it normally does so by
way of a proviso or an exception to the section itself; and it is seldom that an exception to the particular exemption
is in itself a separate exemption.73 When an exception is attached to a provision in a statute, it is prima facie to be
assumed that the legislature thought that the thing excepted would otherwise have been within the enactment.74
Halsbury considers an exception as a part of the enacting part of a section, while a proviso follows the enacting part
of it and is in a way independent of it.75 Wilberforce, says, in his Statute Law:76
The substantial distinction between a proviso and an exception is that the former follows an enacting clause, and qualifies it
in certain specified cases, while the latter is part of the enacting clause, and is of general application.
Crawford in Statutory Construction opines:
While there is considerable similarity between an exception and a provisoeach restrains the enacting clause and operates
to except something which would otherwise fall within the general terms of the statute. There is a technical distinction
between them, although even that is frequently ignored and the two terms used synonymously. The exception, however,
operates to affirm the operation of the statute to all cases not excepted and excludes all other exception; that is, it exempts
something which would otherwise fall within the general words of the statute. A proviso, on the other hand, is a clause
added to an enactment for the purpose of acting as a restraint upon, or as a qualification of the generality of the language
which it follows.
In Brown v Maryland,77 Marshall, CJ.observed:
If it be a rule of interpretation to which all assent, that the exception of a particular thing from general words, proves that, in
the opinion of the law-giver, the things excepted would be within the general clause had the exception not been made, we
know no reason why this general rule should not be as applicable to the Constitution as to other instruments.78
Assumption Regarding Necessity of Exceptions
If an exception has been crafted into the substantive provision, it will come into play whenever the substantive
provision will apply.
In Bhavnagar University v Palitana Sugar Mills Pvt Ltd,79 the question before the Court was whether by reason of
inaction on the part of the state and its authorities under the Gujarat Town Planning Act, 1976, to acquire the lands
in question for a period of more than ten years, in terms of the provisions of the Land Acquisition Act, 1894, despite
service of notice, the same stood de-reserved or de-designated or in view of the issuance of draft revised plan
under Section 21 thereof the term of ten years stood extended. Section 20 of the Gujarat Act provides for
acquisition of land whereas Section 20 (2) carves out an exception to the exercise of powers by the state as
regards acquisition. Section 21 provides for revision of development plan. It was held that Section 21 of the Act
imposes a statutory obligation on the part of the state and the appropriate authorities to revise the development
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plan and for the said purpose Sections 9 to 20 so far may be would be applicable thereto, but thereby the rights of
the owners in terms of Section 20 (2) are not taken away. Thus, where the State fails to acquire land under Section
20 (1) or commence proceedings under the Land Acquisition Act, then in the event of an owner or a person
interested serving a notice, consequences will ensue, namely, the designation of land shall be deemed to have
lapsed.
Exception to be Ignored if Repugnant to Enactment
Where there is an exception coextensive with, and therefore repugnant to, the enactment, it must be ignored for
contrariety. A proviso in similar circumstances might, so far as relates to cases falling within it, repeal a foregoing
enactment.80
Particular Intention Incompatible with General Intention Serves as Exception
An exception out of the provisions of a general statute may be a ground from which an intention may be implied to
repeal a statutory provision which would, if not repealed, have excepted a particular matter not expressly included
in the exception from the provision of the general statute.
Interpretation of Exception
It is one of the established canons of interpretation that exceptions are to be taken most strongly against the party
for whose benefit they are introduced.81 An exception must be construed strictly.82 Moreover, it cannot be
assumed but should be proved. An exemption also must be strictly construed.83
In Union of India v Commercial-tax Officer,84 the Court was concerned with sales tax deductions under Section 5
(2) of Bengal Finance (Sales Tax) Act, 1941. Certain sales of goods had been made by Shri Ganesh Jute Mills Ltd.
to the Ministry of Industry and Supplies, Government of India. The question was whether the returns were to be
deducted from the taxable turnover of the Mills so as to be exempt them from sales tax demanded by the
Commercial Tax officer of the State of West Bengal. This question arose because the aforementioned section
allowed for such deductions if goods were sold to the government of India. This notification was issued as a war
measure. The Court held:
To extend the benefit of the statutory exemption to the sales made to the newly created department of Industries and
Supplies, of goods not required for war purposes but, say, for meeting international obligations as in the present case, will
necessary widen the scope of the exemption an impose greater loss of revenue on the State of West Bengal than what the
Act by its language intends to do...This exemption is the creation of the statute and must be construed strictly and cannot
be extended to sales to other departments.
It is obvious that an exception cannot be so interpreted as to nullify or destroy the main provision.85 It cannot
swallow the general rule.86 The judicial rule of interpretation, that to exclude one by name is to include all that is not
covered by that name, has got many limitations. A specific exception may be construed as an implied inclusion of
all that is not covered by the specific exception. This rule has many exceptions.87 Even if there by overlapping or
contradiction between two provisions, the specific provision ought to be regarded as an exception to the general
provision.88
Saving Clause
Saving clause reserves something which would be otherwise included in the words of the enacting part.89 Saving
clauses may be inserted where one statute is repealed and re-enacted by another, the scope and purport of both
remaining the same. Their effect is that the repealed statute remains in force as if the second statute had not been
passed.90 A saving clause can only preserve things which were in esse at the time of its enactment and, therefore,
cannot affect transaction which were complete at the date of the repealing statute.91 In construing a saving clause,
the line of inquiry would be, not whether the new Act keeps alive the old rights and liabilities, but whether it
manifests an intention to destroy them.92 A saving clause, as its name implies, is a clause which is inserted in the
repealing statute in order to protect or save a person as regards rights which he may have acquired under the then
existing law. But to use it in determining the construction of the Act, or to extend it so as to give a wider scope of the
Act, amounts to ignoring the very purpose for which a saving clause is inserted.93
Strict or Liberal Construction

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Unlike exceptions from an enacting clause, saving clauses are liberally construed.94 Crawford considers:95
Whether the saving clause should receive a strict or liberal construction is a matter upon which there seems to be some
conflict of opinion. Perhaps the best rule would make nature of the construction of the saving clause to depend upon the
nature of the statute involved-for example, whether it was remedial, penal or procedural.
Object of Saving Clause
A saving clause in an enactment is void if it is repugnant to the main clause.96 As generally speaking, you cannot
raise any affirmative enactment out of a proviso or exception in a statute, so you cannot, generally speaking, raise
out of a saving clause, any affirmative or positive right whatever.97
In Fitzgerald v Champaney,1 Sir W Page Wood VC, observed:
The insertion of a saving clause is never safe ground for determining the construction of an Act of parliament whether local
or general. We all know the anxiety which is there on the part of everyone who imagines that his right may be infringed by
the passing of an Act, whether general or local, to procure the insertion of a saving clause to protect them, even where the
ordinary rules of construction supersedes the necessity of any such protection.
Craies opined:2
In the American case of Savings Institution v Makins,3 it was held that a saving clause in a statute in the form of a proviso,
restricting in certain cases the operation of the general language of the enacting clause, was not void, though the saving
clause, was repugnant to the general language of the enacting clause. The true principle, says the editor of Kents
Commentaries, undoubtedly is that the sound interpretation and meaning of the statute on a view of the enacting clause,
saving clause, and proviso, taken and construed together, are to prevail. If the principal object of the Act can be
accomplished and stand under the restriction of the saving clause or proviso, the same is not to be held void for
repugnancy.
Saving Clause in Temporary Statute
In State of Madhya Bharat v Hiralal Sutwala,4 prosecution was pending under the Essential Supplies (Temporary
Powers) Act, 1946 read with Clause 3 of the Cotton Textiles (Control of Movement) Order, 1948. Both these
statutes were temporary, and it was argued by the accused that by the time the charges were framed, the Act had
ceased to be law because it was temporary. Hence, as per the accused, no prosecution could be continued after
the expiry of a temporary Act.
The Parliament was empowered to enact such laws under Article 369 of the Constitution of India. Article 369
contained a saving clause which read asexcept as respects things done or omitted to be done before the expiration
thereof.
The Court held as follows:
the phrase was sufficiently wide to continue a prosecution not completed under a temporary Act. Article 369 contains its
own saving clause and the full operation of that saving clause is to keep intact not only the savings enacted by Sub-section
(3) of Section 1 of the Act, but, for purposes of prosecution -- both in continuation and to be commenced -- the entire Act.
30 .R v Taunton St James (Inhabitants) [1829] 109 ER 309, per Bayley J: the presumption is that a proviso in a statute
refers only to the provisions to which it is attached; US v Mcclure 305 US 472, 83 L Ed 296.
31 .Kartar Singh v Lallusingh AIR 1962 MP 104 [LNIND 1960 MP 47], 1961 Jab LJ 405, 1961 MPLJ 1241.
32 .Valliammal v Area Committee for Madras City (1962) ILR Mad 812, (1962) 1 Mad LJ 320, 75 MLW 36.
33 .MadanlalFakirchand v Changdeo Sugar Mills AIR 1962 SC 1543 [LNIND 1962 SC 125].
Page 8 of 11
34 .Balachandra Anantrao Rakvi &Ors v Ramchandra Tukaram (deceased) &Anor (2002) 8 SCC 616.
35 .Rampratap Sah v Ayodhya Prasad Srivastava (1991) 1 Pat LJR 839; S Sundaram v VR Pattabhiraman AIR 1985 SC
582 [LNIND 1985 SC 20], Craies, Statute Law, seventh edn, p 208; Odgers on Consititution of Deeds and Statute, fifth
edn p 317; AN Sehgal v R Shevram AIR 1991 SC 1406 [LNIND 1991 SC 196]; Rhodde Arvan District Council v
Taffvale Rly Co [1909] AC 253; Jagroop Singh Gill v State of Punjab AIR 1995 P&H 303.
36 .Vedehi Saran v Municipal Board, Konch 1978 All LJ 907; BM Mundkur v Life Insurance Corpn of India (1976) 89 LW
587; State of Rajasthan v Leela Jain AIR 1965 SC 1296 [LNIND 1964 SC 228].
37 .Rameshchandra v Union of India 1991 MPLJ 271; Border Security Force (BSF) v State of Meghalaya AIR 1989 Gau
81 [LNIND 1988 GAU 42]; Modern Homeopathy Society, Hubli v State of Karnataka (1992) 1 Kant LJ 349; New India
Assurance co Ltd v Minalata Ray (1992) 74 CLT 251; M & SM Rly v Bezwada Municipality AIR 1944 PC 71, p 73, per
Lord Macmillan; Mullina v Surrey Treasurer [1880] 5 QBD 170, per Lush J; Duncan v Dixon (1990) 44 Ch D 211, per
Kekewich J; Halliswell v Corpn of Bridgewater 2 Anderson 192; Broach Co-op Bank v Commr of Income-Tax AIR 1950
Bom 45-56; Juggilal Kamlapat v Seva Chand AIR 1960 Cal 463 [LNIND 1959 CAL 146]; Kedarnath Jute Mfg Co v
Commercial-Tax Officer AIR 1966 SC 12 [LNIND 1961 CAL 142], (1965) 16 STC 607; Duggirala Amara v State (1966)
1 Andh LT 114; Dwarka Prasad v Dwarka Das Saraf 1975 All LR 516 (SC); Dr B Sudhakar v Union of India AIR 1995
AP 86 [LNIND 1994 AP 208].
38 .Dwarka Prasad v Dwarka Das Saraf 1975 All LR 516 (SC).
39 .Basant v AG of Madras (1920) ILR 43 Mad 146, p 155, per Lord Phillimore.
40 .Raj Rani v Dwarka Nath AIR 1933 Oudh 491, p 500; GS Chooramani v State of Uttar Pradesh AIR 1969 All 43 [LNIND
1967 ALL 114]: for the proviso was considered as a positive independent provision; Commr, Commercial-taxes v
Ramakrishna AIR 1968 SC 59 [LNIND 1967 SC 224]; Rupchand Hemandas v Heera Jawaharamat AIR 1968 Bom 100
[LNIND 1967 BOM 26].
41 .Anwar Hasan Khan v District Judge, Shahjahanpur&Ors 2000 AIHC 3152, p 3160 (All).
42 .Jagdat Singh v State of Uttar Pradesh AIR 1962 All 606 [LNIND 1961 ALL 148], p 608, per Jagdishsahai J.
43 . (1979) 81 Punj LR 331.
44 . 1975 PLJR 109; Togru Sudhakar Reddy v Govt of Andhra Pradesh AIR 1992 AP 19 [LNIND 1991 AP 317], (1991) 3
ALJ 173, (1991) 2 APLJ 308 [LNIND 1991 AP 317].
45 . AIR 1957 Bom 20 [LNIND 1956 BOM 131].
46 . 1978 All LJ 1187.
47 .AN Seghal v Ram Sheoram AIR 1991 SC 1406 [LNIND 1991 SC 196], 1991 Lab IC 1227; Tribhovandas Harbhai
Tamboti v Gujarat Revenue Tribunal AIR 1991 SC 1538 [LNIND 1991 SC 282], (1991) 3 SCC 442 [LNIND 1991 SC
282], 1991 (2) JT 604, AIR 1991 SCW 1459; KohotaHollohan v Zachilthu AIR 1993 SC 412 [LNIND 1992 SC 175];
Vanda Singh v Steel Authority of India Ltd 1993 JLJ 55; Mahadeo Aon v Chairman of the Howrah Municipality (1910)
ILR 37 Cal 697, p 702; quoting Lord Macnaughten in Commr for Special Purposes of Income-tax v Pemsel [1891] AC
531, p 539; Lord Herschell LC in West Derby Union v Metropolitan Life Assurance Society [1897] AC 647, p 652.
48 .Bachan Singh v Election Commr AIR 1966 Punj 472; Hindustan Life Insurance v Life Insurance Corpn AIR 1963 SC
1083 [LNIND 1962 SC 164].
49 .Sri Ram v State AIR 1958 Punj 47, p 51.
50 . AIR 1950 Mad 410 [LNIND 1949 MAD 162], p 414, per Satyanarayan Rao J: the effect of a proviso to a statute is to
except something from the operative effect or to qualify or restrain the generality of the substantive enactment to which
it is attached; Cox v Hurt 67 L Ed 332.
51 . Re Crown Flour Mills AIR 1956 Punj 5.
52 . AIR 1966 Punj 423, (1966) ILR 2 Punj 447, 68 Punj LR 543; Commr of Income-tax v Jagannathmahadeo Prasad AIR
1969 SC 209 [LNIND 1968 SC 189]: where it was held that when language is quite clear and no other interpretation is
possible, it is pitiable to go into the question whether the proviso operates as a provision or only by way of an
exception.
53 .State of Punjab v Kailashnath AIR 1989 SC 558, (1989) 1 SCC 321, (1989) SCC 128 (Cr); 1989 Cr LJ 813, 1988 (4)
JT 502, (1989) 1 Cur LR 60, (1989) 1 ATLJ 55, 1989 Cr LR 16 (SC); 1989 (1) Crimes 126, (1989) 58 Fac LR 32, (1989)
1 Lab LW 256, (1989) 1 Rec Cr R 139, (1989) 1 Serv LR 12, (1989) 1 UPLBEC 113, 1989 Bank J 121, Abdul Jabar v
State of Jammu and Kashmir AIR 1957 SC 284; Dorothy v Mullik AIR 1958 Pat 240, p 242.
54 .AG for New South Wales v Trethowan [1932] AC 526, p 533, per Lord Sankey LC; Ex p Partington [1844] 6 QB 649
, p 653: s 27, Indian Evidence Act was held to be a proviso to both, ss 25 and 26; had the proviso been intended to
Page 9 of 11
be a proviso to s 26 only, it would not have been put in the form of a separate section;Queen-Empress v Babulal (1884)
ILR 6 All 509, p 511, per Oldfield J.
55 .Commissioner of Income-tax. Mysore, Travancore-Cochin and Coorg v Indo-Mercantile Bank Ltd [1959] Supp. 2
S.C.R. 256; Commr of Income-tax v Ajay Products AIR 1965 SC 1358 [LNIND 1964 SC 263]; Belapur Co v MS
Farming Co AIR 1969 Bom 231 [LNIND 1968 BOM 93]; BhageluMian v Mahboob Chick 1978 BLJ 123; Starling Steel
and Wires Ltd v State of Punjab 1980 Cur LJ 411 (Civil).
56 .United States v Dickson [1841] 14 Pat 141; MA Mohommad v RT Authority AIR 1958 Ker 140 [LNIND 1957 KER 226],
p 142.
57 .Sankaran Nambudripad v Ramaswamiayyar (1918) ILR 41 Mad 691, p 695, 34 MLJ 446, 8 LW 12, per Ayling J; Ram
Chander v Gouri Nath AIR 1926 Cal 927, p 932, (1926) ILR 53 Cal 492; per Rankin J in Mahadeb v Chairman, Howrah
Municipality (1910) ILR 37 Cal 697, p 702.
58 .Cambatta& Co Ltd v Commr of Income-tax, Bombay AIR 1952 Bom 290, 54 Bom LR 202.
59 .SheoNarain Chaudhary v Dist Judge 1982 All Rent Cas 441.
60 .Tahsildar Singh v State of Uttar Pradesh AIR 1958 SC 1012 [LNIND 1958 SC 87], p 1022; Dwarka Prasad v Dwarka
Das Saraf 1975 Ren CJ 593.
61 . (1997) 3 SCC 353 [LNIND 1997 SC 216].
62 . AIR 1950 Bom 45, p 46.
63 . 95 LW 433.
64 .Gangamoyee v Manindra Chandra 53 CWN 718, p 722, AIR 1950 Cal 225 [LNIND 1949 CAL 29]; Jenning v Killy
[1920] AC 206 , p 229.
65 . (2003) 5 SCC 461.
66 .[1831] 2 B & Ad 818, p 821.
67 .Togru Sudhakar Reddy v Govt of Andhra Pradesh AIR 1992 AP 19 [LNIND 1991 AP 317], (1991) 3 ALT 173, (1991) 2
APLJ 308 [LNIND 1991 AP 317]; King v Dominion Engineering Co 1947 PB 94-95, per Lord Macmillan; AG v Chelsea
Water Works 94 ER 716; Khan Chand Tilokaram v State of Punjab AIR 1966 Punj 423; Thangliana v Bawichhuaka AIR
1971 A&N 78, p 79, per Goswami CJ quoted therein; Pfizer Employees Union, Bombay v Mazdoor Congress, Bombay
1979 Mah LJ 571.
68 .Horsnail v Bruce [1873] LR 8 CP 378, p 385, per Bovil CJ.
69 . AIR 1992 AP 19 [LNIND 1991 AP 317], (1991) 3 ALT 173, (1991) 2 APLJ 308 [LNIND 1991 AP 317].
70 .Govt of the Province of Bombay v Hormusji Manekji AIR 1947 PC 200, pp 205 and 06; Punjab National Bank v Punjab
Property Development Co AIR 1958 Punj 57, p 59.
71 .Shankarlal v Gangabisen AIR 1972 Bom 326 [LNIND 1972 BOM 15], p 333, per Kotwal CJ.
72 . Crawford, Statutory Construction, pp 128, 891.
73 .JK Trust, Bombay v Commr of Income-tax AIR 1958 Bom 191, p 193.
74 .Richardson v Austin 12 CLR 463, p 470: the argument must not be pressed too far; Duncan v State of Queensland 22
CLR 556, p 592: rule applies to interpretation of Constitution.
75 .Laws of England, fourth edn, vol 44, para 882; Kartar Singh v Lallu Singh AIR 1962 MP 104 [LNIND 1960 MP 47]-05,
per PR Sharma J; dissents from Sri Ram v State AIR 1958 Punj 47, per Tek Chand J.
76 . 1881, p 304.
77 . 12 Wheat 419, p 438.
78 .Duncan v State of Queensland 22 CLR 556, p 592, per Barton J.
79 .Ibid.
80 .Rupchand Hemandas v Heera Jawaharmal AIR 1968 Bom 100 [LNIND 1967 BOM 26].
81 .Madho Singh v James Skinner AIR 1942 Lah 243, p 248, per Din Mahommad J: a provision of law which is an
exception to the general rules of evidence must be applied only to the cases to which it is confined by the legislature;
Emperor v Pyn Sin AIR 1920 LB 86, per Maung Kin J; Gaya Prasad v Kalapnath AIR 1929 Oudh 389: exemptions from
operation of a statute made in detail preclude their enlargement by implication; Addison v Holly Hill Fruit Products 322
US 607, 88 L Ed 1488: an exception clause in a statute limiting the time for a criminal prosecution though denominated
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a proviso is to be narrowly construed; US v Schartan 285 U Section 518, 76 L Ed 917; Harcharan Singh v Shashpal
Singh 1966 Cur LJ 252; Desu Rayudu v Andhra Pradesh Public Service Commission AIR 1967 AP 353 [LNIND 1965
AP 45].
82 .Mahalingam v Kanniappan (1990) 1 MLW 246.
83 . Sutherland, Statutory construction, third edn, vol 2, pp 474-75: dealing with the matter thus:
provisos and exceptions both operate to restrict the generality of legislative language. Normally, a proviso occurs within the
body of a section while an exception is drafted as an individual section. The older rule strictly interpreted both
exceptions and provisos but today exceptions and to some extent provisos are interpreted principally in view of the
legislative intent and no presumptionarises because of the form of the Act that the interpretation must be strict.
Generally, an exception is considered as a limitation only upon the matter which precedes it, but if it is clear from the
legislative intent that it is considered a general limitation on the entire Act, it will operate to restrict all provisions of the
Act. In drafting legislation, the exception is to be preferred as a method of limiting generality over the proviso. This is
true not only because the exception can be drafted in a simpler form than the proviso but also because the proviso has
frequently been used as conjunctive and may not be interpreted as a limitation. The exception, both because of its
caption and its form, clearly indicates the legislative intent.
84 . AIR 1956 SC 202 [LNIND 1955 SC 113]; State of West Bengal v Ashutoshlahari 1995 (7) JT 443 (SC); referring to
Union of India v Wood Papers Ltd 1991 (1) JT 151 [LNIND 1990 SC 267] (SC); Novopal India Ltd, Hyderabad v CCE &
Customs, Hyderabad 1994 (6) SC 80; Devi Ram v Chet Ram (1995) 2 Sim LC 222.
85 . Shree Raghuttilakathirtha Sreepadangalvaru Swamiji v State of Mysore [1963] 2 SCR 226 [LNIND 1962 SC 176], p
236, per Gajendragadkar J.
86 . Re Calcutta Stock Exchange Assn AIR 1957 Cal 438 [LNIND 1957 CAL 42], p 441, per PB Mukharji J.
87 .Bakhshish Singh v Hazra Singh AIR 1957 Punj 155, p 157, per Chopra J.
88 .Maxwell on Interpretation of Statutes, eleventh edn, p 154.
89 .Halsburys Laws of England, fourth edn, vol 44, para 883.
90 .Arnold v Mayor of Gravesend Corpn [1856] 69 ER 911: it is intended to prevent the enactment from interfering with
rights already acquired; Re Thompson, Bedford v Teal [1890] 45 Ch D 161; Gulab Chand v Kudi Lal AIR 1951 MB 1;
Ramdas Shriram v Regional Asst Commr, Sales-tax 1967 Jab LJ 38, 1967 MPLJ 142.
91 . Halsburys Laws of England, fourth edn, vol 44, para 884; State of Maharashtra v Atmaram 1979 Jab LJ 57 (SC).
92 .Gulab Chand v Kudi Lal AIR 1951 MB 1, p 28.
93 .Govindan Nair v Narayani Ammal AIR 1955 Tr&Coch 235.
94 .R v West Riding of Yorkshire Justices [1876] 1 QBD 220; Narula Tpt Service v State of Madhya Pradesh 1978 MPLJ
654, 1978 Jab LJ 857.
95 . Crawford, Statutory Construction, pp 300-01.
96 .Strouds case 73 ER 700; AG v Bushopp 75 EQ 89; Riddell v White 145 ER 873: it will cease to operate if it is
inconsistent with the operation of a subsequent special statute; Halsburys Laws of England, fourth edn, vol 44, para
930; quoting Yarmouth Corpn v Simmons [1878] 10 Ch D 518.
97 .Lord Advocate of Scotland v Hamilton [1852] 1 Macq 46 (HL).
1 . 30 LJ Ch 777, p 783; the insertion of words in a statute protecting or excepting certain persons does not necessarily
by implication exclude others; many things find their way into saving clauses ex abudanticautela and upon the
insistence of particular bodies of persons: Halsburys Laws of England, fourth edn, vol 44, para 883; quoting Smyth v R
[1898] AC 782; McLaughtein v Westgarth[1906] 75 LJ PC 117; Crawford, Statutory Construction, para 300 writes:
As we have stated elsewhere the saving clause is used to exempt something from immediate interference or destruction. It
is generally used in repealing statutes in order to prevent them from affecting rights accrued, penalties incurred, duties
imposed, or proceedings started under the statute sought to be repealed. Its position or verbal conflict is unimportant.
But if it is in irreconcilable conflict with the body of the statute of which it is a part, it is ineffective or void.
Maxwell, Interpretation of Statutes, twelfth edn, 1993 says:A difference, indeed, has been said to exist in this respect
between the effect of a saving clause, or exception, and a proviso in a statute. When the proviso appended to the
enacting part is repugnant to it, it unquestionably repeals the enacting part, but it is said by Lord Coke that when the
enactment and the saving clause (which reserves something which would be otherwise included in the words of the
enacting part) are repugnantthe saving clause is to be rejected because otherwise the enactment would have been
made in vain.
Sham Sunder v Ram Das AIR 1951 Punj 52, 57 (FB).
Page 11 of 11
2 . Fourth edn, p 199.

3 .[1845] 23 Maine 300.
4 . AIR 1959 MP 93 [LNIND 1958 MP 37]; following Wicks v Director of Public Prosecutions [1947] AC 362; JK Gas Plant
Mfg Co v Emperor AIR 1957 FC 38; DhawanjiRawji v Emperor AIR 1949 Nag 134; Jogendrachandra Ray v Suptd of
Dum Dum Special Jail (1933) ILR 60 Cal 742, AIR 1933 Cal 280.
End of Document
Explanation
NS Bindra
and its Parts
Explanation
An explanation does not enlarge the scope of the original section that it is supposed to explain.5 An explanation
cannot be read into a definition as limiting or restricting the scope of the latter.6 The mere description of a certain
provision, such as explanation, is not decisive of its true meaning, and ultimately it is the intention of the legislature
which is paramount.7 An explanation must be interpreted according to its own tenor. It is an error to explain the
explanation with the aid of the section to which it is annexed.8
The Supreme observed in Sulochana Amma v Narayanan Nair:9
It is settled law that explanation to a section is not a substantive provision by itself. It is entitled to explain the meaning of
the words contained in the section or clarify certain ambiguities or clear them up. It becomes a part and parcel of the
enactment. Its meaning must depend upon its terms. Sometime, it would be added to include something within it or to
exclude from the ambit of the main provision of some condition or words occurring in it. Therefore, the explanation normally
should be so read as to harmonise with and to clear up any ambiguity in the same section.
The Supreme Court observed in N Nagamancham Setty v Collector of Central Excise:10
The explanation should be read so as to harmonise with and clear up any ambiguity in the main section. It should not be so
construed as to alter the ambit of the section.
The object of an explanation to a statuary provision is:11

(i) to explain the meaning and intendment of the Act itself;
(ii) where there is any obscurity or vagueness on the main enactment, to clarify the same so as to make it
consistent with the dominant object which it seems to observe;
(iii) to provide an additional support to the dominant object of the Act in order to make it meaningful and
purposeful;
(iv) 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 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
(v) 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 an hindrance in the interpretation of the same.
In Jagannath v Ram Chander Srivastava,12 the Court was dealing with Order XV, Rule 5 of the CPC. Through a
State amendment, an Explanation had been added to it. The question before the Court was whether, when the
court adjourns the hearing of a suit to a date other than that fixed for that purpose in the summons served on the
Defendant, the date of the first hearing would be the adjourned date or the date originally fixed in the summons
within the meaning of Order XV, Rule 5. The Explanation read as The expression first hearing means the date for
filing written statement or for hearing mentioned in the summons or where more than one of such dates are
mentioned the last of the dates mentioned. The Court held that in light of the Explanation, the first hearing would be
the date or dates specifically mentioned in the summons.
In arriving at this decision, the Court observed:

Page 2 of 3
Explanation
The role of an explanation in statutory construction is to remove any ambiguity in the main section or to make explicit that
may be otherwise ambiguous. Its basic function is to elucidate the main enactment. However, the construction of an
Explanation must depend in the ultimate analysis upon its plain terms and the language used therein...in the ultimate
analysis the object of the Explanation can best be understood by referring to the language in which it is expressed. The
explanation under consideration is, in our opinion, a plain and simple definition clause enacted to define the expression first
hearing and in view of the language used therein, it is clear that the object was to exclude the general notions of the fist
hearing in a civil suit governed by the Code of Civil Procedure.
In State of Bihar v Mohd Ismail,13 the Court was dealing with Section 12 of the Limitation Act, 1963. The
Explanation in question read as In computing under this section the time requisite for obtaining a copy of a decree
or an order, any time taken by the Court to prepare the decree or order before an application for a copy thereof is
made shall not be excluded. The controversy before the Court was whether the time taken by the Court to prepare
the decree, before an application for a certified copy was made, ought to be excluded in favour of the appellant as
time requisite for obtaining a copy of the decree or not. The majority held that the time taken by the Court to prepare
the decree before an application for copy is made would not be excluded in favour of the appellant as time requisite.
The Parliament expressed its intention through the language of its enactment. Explanation or proviso is added to a section,
generally, by way of exception to what is stated in the main section. Sometimes an explanation is appended to stress upon
a particular thing which, ordinarily, would not appear clearly from the provision in the section. This artifice seems to have
been adopted in drafting the explanation to Section 12...it is well settled that when any word, phrase or expression in any
enactment is explained by the legislature, the Act has to be applied with the authoritative explanation of that expression,
phrase or word, as the case may be for the very object of the authoritative explanation is to enable the Court to understand
the Act in the light of the Explanation, and the construction of the Explanation must depend upon its terms, and no theory or
hypothesis as to its purpose can be entertained unless it is to be inferred from the language used.
In MP Cement Manufacturers Association v State of Madhya Pradesh,14 the State Government imposed a levy on
electrical energy produced, whether for sale or supply. This field of legislation fell under Entry 84 of List I and the
State Legislature was empowered to legislate only on the imposition of taxes on the consumption or sale of
electricity under Entry 53 of List II. In 2003, the legislature added an explanation to Section 3 (2) of the Madhya
Pradesh Upkaradhiniyam, 1981. The issue was whether the explanation introduced in 2003 could cure the defect
existing in 2001. The court observed that the legislature has the power to validate retrospectively an invalid levy, so
long as it has not been judicially invalidated. In the present case, the levy had not been invalidated until the
introduction of the explanation in 2003. This principle, the court clarified, would not apply to the 2003 amendment
since it was in the form of an explanation. Reliance was placed on S. Sundaram Pillai and Others v VR
Pattabiraman and Others,15 to reiterate that an explanation cannot in any manner interfere with or change the
enactment or any part thereof. The expression used by the explanation is for the purpose of Section 3 (2), the cess
shall be levied on units of electrical energy sold or supplied. Thus despite the explanation, the charge in Section 3
(2) continues to be on the production of the electrical energy units and nothing else. The proviso to Section 3 (2)
continues to except electrical energy produced in certain cases. The explanation, if it is read with the main
provision, introduces certain contradictions and vagueness. The court held that the outcome of the introduction of
the explanation to an otherwise unchanged Section 3 (2) is a singularly ill drawn provision. The 2003 amendment
was obviously introduced for the purpose of rectifying the obvious error in Section 3 (2), an object which cannot be
achieved by introducing an explanation since an explanation cannot be read as changing or as interfering with the
incidence of the levy. The court observed that it was not for them to untangle the legislative confusion, particularly
when legislative clarity is required, since the statutory provision imposes a tax.
In Commissioner of Trade Tax, UP v Kajaria Ceramics,16 the appellant department contended that the phrase fixed
capital investment occurring in the exemption notification made under the Uttar Pradesh Trade Tax Act 1948 when
read in case of a new unit should mean original fixed capital investment and in the case of a unit undertaking
expansion should mean additional fixed capital investment. This was opposed by the respondents who contended
that in case of undertaking expansion also the entire investment on the fixed capital including the original fixed
capital investment will have to be exempted under the relevant notification. The court rejected this contention of the
respondents and held in favor of the department. While providing the reasoning for its decision the Court heavily
relied on the explanation to the relevant section in the enactment. It observed that the language of the explanation
was clear and unambiguous. These were internal aids permissible in interpretation. The explanation also used the
word means. The court observed that whenever the legislature uses words like means it intends the definition to be
Page 3 of 3
Explanation
exhaustive. Therefore, what are exempted under the language of the explanation are only the additional fixed
capital and not the entire investment.
Explanation may not Relate to Same Subject
It offends all canons of construction to transplant the explanation added to one section to another.17 If on a true
reading of an explanation, it appears that it has widened the scope of the main section, effect must be given to the
legislative intent notwithstanding the fact that the legislature named that provision as an explanation.18
5 .Kishen Singh v Prem Singh AIR 1939 Lah 587, (1940) ILR Lah 223.
6 .Rai Saheb Rekchand Mohota Spg and Wvg Mills v Labor Court AIR 1968 151: explanations simply explain what has
been said in substantive provisions of the enactment; Chotabhai Jethubhai Patel & Co v State of Madhya Pradesh AIR
1968 MP 127 [LNIND 1967 MP 99].
7 .Dattatraya Govind Mahajan v State of Maharashtra AIR 1977 SC 915 [LNIND 1977 SC 56], p 928, (1977) 2 SCC 548
[LNIND 1977 SC 56], [1977] 2 SCR 790 [LNIND 1977 SC 56], 1977 UJ 129 (SC), 1977 RD 160 (SC), 1977 All WC 180
(SC).
8 .Burmah-Shell Oil Ltd v Commercial-tax Officer AIR 1961 SC 315 [LNIND 1960 SC 496], p 321.
9 . AIR 1994 SC 152; Nabin Majhi v Tela Majhi AIR 1978 Cal 440 [LNIND 1978 CAL 360]; Promode Rangan v Nirapada
Mondal AIR 1980 Cal 181 [LNIND 1979 CAL 232]overruled; PP v AI Gladstone (1963) MLJ 555 (Cr), (1963) 2 Andh
WR 388.
10 . AIR 1983 Kant 193 [LNIND 1983 KANT 54], (1983) 1 Kant LJ 457 [LNIND 1983 KANT 54].
11 .S Sundram v VR Pattabhiraman AIR 1985 SC 582 [LNIND 1985 SC 20].
12 . 1982 All Rent Cas 665.
13 . AIR 1966 Pat 1, p 4, per UN Sinha J.
14 . (2004) 2 SCC 249.
15 . (1985) 1 SCC 591 [LNIND 1985 SC 20], p 613
16 . (2005) 11 SCC 149 [LNIND 2005 SC 521].
17 .Govt of Andhra Pradesh v Govindarajulu AIR 1958 AP 109, p 111, per Subba Rao CJ.
18 .Hiralal Ratanlal v State of Uttar Pradesh (1973) 1 SCC 216 [LNIND 1972 SC 476], p 225, per Hegde J; Hari Singh v
Sringarkanwar 1981 Raj LW 190.
End of Document
Schedule
NS Bindra
and its Parts
Schedule
The schedule is as much a part of the statute, and is as much an enactment as any other part, and may be used in
construing provisions in the body of the Act.19 A schedule in an Act of Parliament is a mere question of draftinga
mere question of words.20 The liability imposed in the schedule is equally binding.21 It must be read together with
the Act for all purposes of construction.22 The purpose and usefulness of a schedule is succinctly set out by the
Supreme Court as: A schedule in an Act of parliament is a mere question of drafting. It is the legislative intent that is
material. An explanation to the schedule amounts to an explanation in the Act itself.The schedule may be used in
construing a provision in the body of the Act. It is as such an Act of legislature as the Act itself and it must be read
together with the Act for all purposes of construction. Expressions in the schedule cannot control or prevail against
the express enactment in case of any inconsistency between the schedule and the enactment.
Lord Sternadale in Inland Revenue Commissioner v Gittus23 said:
It seems to me there are two principles of rules of interpretation which ought to be applied to the combination of Act and
schedule. It the Act says that the schedule is to be used for a certain purpose and the heading of the part of schedule in
question shows that it is prima facie at any rate devoted to that purpose then you must read the Act and the schedule as
though the schedules were operating for the purpose and if you can satisfy the language of the section without extending it
beyond that purpose you find in the language of the schedule the words and terms that go clearly outside that purposes
then you must effect to them and you must not consider them as limited by the heading of that part of the schedule or by
the purpose mentioned in the Act for which the schedule is prima facie to be used. You cannot refuse to give effect to clear
words simply because prima facie they seem to be limited by the heading of the schedule and the definition of the purpose
of the schedule contained in the Act.24
However, a schedule cannot be referred to on the construction of an enacting part of a statute, unless the language
of that enacting part is ambiguous.25 Very little weight is attachable in any case to the mere title of a schedule, as
qualifying the enacting words of a statute.26
In Indira Bai v Gift-tax Officer,27 the Court was dealing with Section 3 of the Gift Tax Act, 1958, and the Schedule
appended to it. Section 3 was the charging section and the Schedule laid down the rates of gift tax liable to be paid
at the end of the previous year. The Schedule defined the expression value of all gifts as the total value of gifts and
fixed the rates of duty on the basis of the value of all gifts made during the specified period subject to certain
exemptions. The argument of the petitioners was that they were eligible for an exemption on the value of each gift
and not on the total value of all gifts.
Rejecting this argument, the Court held:
It is axiomatic that the statute has to be read as a whole and that the schedule to the Act is as much part of the Act as any
other provision thereof. Rules of interpretation even require that if an enactment in a schedule other than one merely of
form contradicts an earlier clause, it is the schedule that would prevail. Not only is the schedule to the Gift Tax Act clear and
specific in its requirement that the tax is in respect of the total value of the taxable gifts made during the previous year but
the other relevant provisions of the Act, including in particular the charging section itself, give no room for entertaining a
contrary view.
Page 2 of 2
Schedule
19 . ReRanchhoddasGovinddasBanatwala 1976 Mah LJ 636.
20 .AG v Lamplough [1878] 3 Ex D 214, p 229, per Brett LJ; Indira Bai v Gift-tax Officer (1961) ILR Mad 1214, 74 MLW
552.
21 . Re Abdul Gaffor AIR 1958 AP 267, p 269, per Kumarayya J.
22 .Dhonessur Kooer v Roy Gooder Sahay (1876) ILR 2 Cal 336, p 339; Altaf Ali v Jamsur Ali AIR 1926 Cal 638; Re
Swatanath Bhatia AIR 1948 Mad 427 [LNIND 1948 MAD 61], p 429: schedules showing form of permit and conditions
of licence form part of the Madras Cotton cloth Dealers Control Order; Canadian Northern Pacific Rly Co v Corpn of
New Westminster AIR 1918 PC 303: Agreement in the schedule operates as if it were a clause in the Act. A plan
annexed as a schedule to an Act may be regarded as illustrating the scope and meaning of the enactment without of
course restricting the extent of rights conferred in the enacted part. Simpson v South Staffordshire Waterworks Co
(1865) 34 LJ Ch 380, per Lord Westbury; Muneshwara Nand v State AIR 1961 All 24 [LNIND 1960 ALL 79], p 30.
23 . [1920] 1 KB 563.
24 .Aphali Pharmaceuticals Ltd v State of Maharashtra AIR 1989 SC 2227 [LNIND 1989 SC 454].
25 .Ellerman Lines Ltd v Murray [1931] AC 126.
26 .Trustees of Clyde Navigation v Laird [1884] 8 AC 658 , pp 672 and 73, per Lord Watson.
End of Document
Forms
NS Bindra
and its Parts
Forms
Forms appended to schedules are inserted merely as examples and are only to be followed implicitly so far as the
circumstances of each case may admit.28 It would be quite contrary to the recognised principles upon which courts
of law construe Acts of parliament to enlarge the conditions of the enactment, and thereby restrain its operation, by
any reference to the words of a mere form, given for convenience sake in a schedule, and still more so, when that
restricted operation is not favorable to the liberty of the subject, but the reverse. It is needless to cite authorities for
these principles of construction, but it so happens that there is in existence a most apposite one by a judge of high
repute (Lord Cottenham) in relation to the schedules of this very statute.29 If the enacting part and the schedule
cannot be made to correspond, the latter must yield to the former.30 Forms appended to a schedule to a statute
may be referred to for the purpose of throwing light on the construction of the statute.31 If such forms are merely
given as models, and by way of example, or for departmental purposes, their bearing on the construction of
enacting sections is less than if they form an essential element in the operation of a statute. If a form included in a
schedule to a statute is made imperative by the statute, or is in terms which indicate that it is intended to be
imperative, it must be strictly followed.32 The meaning of an Act should not be derived from the forms which may
be prescribed by the government under its rule-making power.33 Moreover, schedule forms are always dangerous
guides to the meaning of a statute.34 But courts can derive support by a reference to the statutory forms and rules
with a view to show that they are not alone in the view which they have taken of the section.35 Form prescribed
under the rules can be used as an aid on the basis of principles of contemporaneous exposition, which is a well-
settled rule of interpretation of a statute.36
28 .Batlett v Gibbs 13 LJ CP 40.
29 . Re Baines 10 LJQB 34.
30 .Dean v Green [1882] PC 79, pp 89 and 90, per Lord Penzance.
31 .Jashoda Factories Pvt Ltd v Judge, Labour Court, Nagpur 1980 Mah LJ 453.
32 .Commr of Agricultural Income-tax v Keshabchandra Mandal AIR 1950 SC 265 [LNIND 1950 SC 21]; Banarsidas v
Cane Commr AIR 1963 SC 1717, p 1425; ReSwara Nath Bhatia AIR 1948 Mad 427 [LNIND 1948 MAD 61], p 429;
Saunders v White [1902] 1 KB 473 ; Ryan v Oceanic Steam Navigation Co [1914] 3 KB 731; Davison v Gill 1 East
64; R v Pinder 24 LJQB 148; Liverpool Borough Bank v Turner 29 LJ Ch 827, 30 LJ Ch 379.
33 .Pandiri Sarveswara Rao v Maturi Umamaheswari (1941) ILR Mad 383, AIR 1941 Mad 152 [LNIND 1940 MAD 308]-
53.
34 .Ma Tin Tin v Maung Aye AIR 1941 Rang 135; Pandiri Sarveswara Rao v Maturi Umamaheswari(1941) ILR Mad 383;
Chellappa Pillai v Bhargavan Paniker (1963) 1 Ker LR 206; 1963 Ker LT 639.
35 .Commr of Wealth-tax v Raipur Mfg Co Ltd AIR 1964 Guj 151, (1963) 4 Guj LJ 741.
36 .Abdul Rahim v Padma AIR 1982 Bom 341 [LNIND 1982 AP 22].
Page 2 of 2
Forms
End of Document
Erratum
NS Bindra
and its Parts
Erratum
Ordinarily, the erratum should take effect to rectify the error with effect from the date of the original publication of
the statutory provision.37
37 .Narasimhaswamy v Indian Dominion AIR 1951 Ori 31 [LNIND 1950 ORI 20]-32: notification.
End of Document
Conclusion
NS Bindra
and its Parts
Introduction (3)
Conclusion
A statute is meant to be read as a whole and the whole is more than a sum of its parts. In this chapter the
significance of each part on its own as a part of the whole has been documented. Yet again the principle of
legislative intention continues to have overwhelming relied upon in determining the importance of each part of the
statute.
End of Document
NS Bindra
Edition > PART II TECHNIQUES, TOOLS AND RULES OF INTERPRETATION > Chapter 6 Rules
of Interpretation
Chapter 6 Rules of Interpretation

Chapter 6 Rules of Interpretation
End of Document
Introduction
NS Bindra
of Interpretation
Introduction
The rules of interpretation encapsulate the various ways of reading a statute. GW Paton and Ogders1 have
described three rules of interpretation. First, the literal rule that, if the meaning of a section is plain, it is to be
applied whatever the result; second, the golden rule that the words should be given their ordinary sense unless that
would lead to some absurdity or inconsistency with the rest of the instrument; and the mischief rule which
emphasises the general policy of the statute and the evil at which it was directed. Crawford has discussed the
various ways by which the meaning of statutes is to be ascertained.2 He opined:
The first source from which the legislative intent is to be sought is the words of the statute. Then an examination should be
made of the context, and the subject matter and purpose of the enactment. After the exhaustion of all intrinsic aids, if the
legislative intent is still obscure, it is proper for the court to consult the several extrinsic matters for further assistance. And
during the consideration of the various sources of assistance, further help may, of course, be found on the use of the
numerous rules of construction.
Sutherland noted:
Normally, in the case of genuine interpretation the court assumes that the words used by the legislature express the reason
of the statute. To be sure if the words are ambiguous the court may itself determine otherwise the reason of the statute, but
only as a guide to show which is the correct sense of the words. It gives effect to its independent determination only so far
as the words will allow; it is truly construing words. Here it give effect to such determination further than the words will
alloweven though the words cannot without qualification bring about any such result. It is no longer merely construing
words, but might be said to construe the reason of the statute. To do so is in effect to amend the words; where the
legislature has failed to use apt words, the court steps in. Dean Pound has likened this to the compensations in the human
system when some member fails to function properly. The line between interpretation and judicial legislation here becomes
shady. So far as the words go, this looks like the latter, but inasmuch as the court attempts to apply the reason of the
statute, it may well be called one form of interpretation. Its peculiarities should, however, be recognised. To admit such a
rule is to enter upon a dangerous round. Once the jurisdiction to apply some other standard case than that indicated by the
words of the statute is admitted, then in a doubtful case it becomes open to question whether the law as written is really
applicable. The courts discretion is in some measure substituted for the written law. There is the danger of abuse. Ground
is furnished for the belief that the courts make and unmake the law at will. This leads to the desire for political control of the
courts and demand for an elective judiciary. Whether this jurisdiction should nevertheless be entered upon involves large
problems of jurisprudencethat arising out of the conflicting desires for certainty in the laws, and for due regard for the
equities of individual cases. Suffice it here to say that under prevailing methods of drawing statutes this sort of interpretation
seems at times necessary to avoid absurd and untimely results from ill-framed legislation.
Austin divided the interpretative process into three sub-processes:

(a) finding the rule;
(b) finding the intention of the legislature; and
(c) extending or restricting the statute so discovered to cover cases which should be covered.
De Sloovere recommended the following steps:

(a) finding or choosing the proper statutory provisions;
Page 2 of 2
Introduction
(b) interpreting the statute law in its technical sense; and

(c) applying the meaning so found, to the case in hand.
1 . Odgers, Construction of Deeds and Statutes, second edn, pp 289-90.

2 . Crawford, Statutory Construction, p 274.
End of Document
Literal Rule of Interpretation and Golden Rule of Interpretation3
NS Bindra
of Interpretation
Literal Rule of Interpretation
The first and primary rule of construction is that the intention of the legislature must be found in the words used by
the legislature itself. If the words used are capable of one construction only, then it would not be open to the courts
to adopt any other hypothetical construction on the ground that such hypothetical construction is more consistent
with the alleged object and policy of the Act. The legislature must be deemed to have intended what it has said. It is
no part of the duty of the court to presume that the legislature meant something other than what it said. If the words
of the section are plain and unambiguous, then there is no question of interpretation or construction. The duty of the
court then is to implement those provisions with no hesitation. The words used in the material provisions of the
statute must be interpreted in their plain grammatical meaning, and it is only when such words are capable of two
constructions, that the question of giving effect to the policy or object of the Act can legitimately arise. When the
material words are capable of two constructions, one of which is likely to defeat or impair the policy of the Act whilst
the other construction is likely to assist the achievement of the said policy, then the courts would prefer to adopt the
latter construction. A statute must be taken to mean what it says, and it must be remembered that, if the words of a
statute be plain and clear, it is not for the court to raise any doubt as to what they mean.4 The first canon of
construction of a statute is that you must take the language as it stands and if it is clear give effect to it.5 It must be
remembered that the duty of the court is not to put a construction which seems to the court to be best in the sense
that it will work out with the most justice or with the least inconvenience but to put a construction which seems to the
court to be the best in the sense that it is nearest to the language of the legislature.6
Maxwell stated:7
In a word then it is to be taken as a fundamental principle, standing as it were on the threshold of the whole subject of
interpretation, that the plain intention of the Legislature, as expressed by the language employed, is invariably to be
accepted and carried into effect, whatever may be the opinion of the judicial interpreter of its wisdom or justice. If the
language admits of no doubt or secondary meaning it is to be obeyed.
In New Piece Goods Bazar Co Ltd v Commissioner of Income-tax, Bombay,8 the Supreme Court held: It is an
elementary duty of a court to give effect to the intention of the Legislature as expressed in the words used by it and
no outside consideration can be called in aid to find that intention.
3 . This rule is accorded greater significance when the court casts its role in essentialists terms and sees lawmaking as
the exclusive domain of the legislature. For the connection between this rule and the judicial deference to legislative
intention see Part I chapter 1 supra.
4 .Padam Prasad v Emperor AIR 1929 Cal 617, p 630, per Jack J.
5 .Meher Sardar v Emperor AIR 1930 Cal 577, p 578.

Page 2 of 2
6 .Mukerjea v Karnani Industrial Bank Ltd AIR Cal 770, p 773, per Rankin, CJ: it may sometimes be difficult to ascertain
what the legislature exactly meant, but we must determine what its language means: Guha J, in Bejoy Kumar v Corpn
of Calcutta AIR 1933 Cal 322, p 324.
7 . Maxwell, Interpretation of Statutes, sixth edn, 1920, p 94.
8 . AIR 1950 SC 165 [LNIND 1950 SC 28], p 168; Madan Lal v Changdeo Sugar Mills AIR 1958 Bom 491 [LNIND 1957
BOM 122], 495.
End of Document
Illustrations of the Literal Rule
NS Bindra
of Interpretation
In Imperial Bank v U Raigyaw Thu & Co Ltd,9 the Court was called upon to decide the question of priority between
the bank, who held the title deeds of the debtor, and the respondent who held a mortgage by registered deed from
the same debtor, which depended upon the correct interpretation of Sections 58-59, 78-80 of the Transfer of
Property Act 1882. The consideration on which the bank laid most stress was that it was evident that the legislature
wished to preserve the system of mortgaging by deposit of title deeds in the towns mentioned in Section 59 of the
Transfer of Property Act. Such mortgages, it was pleaded, were only useful for the exigencies of business,
especially timber and rice trades (case being from Burma), where balances fluctuated from day to day. It would be
impossible at each subsequent advance that there should be a search of registers, because the registers searched
would not only be the registers in the town itself but all those where the security lands mentioned in the deposited
title deeds might be situated, and the exigencies of business required immediate advances without a delay which
might be of many days. Therefore, it was pressed that they should give such an interpretation to the Act as would
not defeat one of its avowed objects. But their Lordships repelled this contention and Lord Dunedin observed:
Such consideration while founded on views as to businesses which are obviously of the greatest practical importance
would, in their Lordships opinion, be rather arguments for the invocation of the Legislature than an incentive to the putting
of a forced construction on sections of an Act which in themselves were, in their Lordships judgment, capable of only one
interpretation.
In Pakala Narayana Swami v Emperor,10 the Court was considering Section 162 of the Code of Civil Procedure.
Section 162 read as follows:
No statement made by any person to a police officer in the course of an investigation under this Chapter shall if reduced
into writing be signed by the person making it: nor shall any such statement or any record thereof whether in a police diary
or otherwise or any part of such statement or record be used for any purpose (save as hereinafter provided) at any inquiry
or trial in respect of any offence under investigation at the time when such trial was made.
The controversy arose because giving Section 162 its plain construction was contended to be impliedly repealing
Section 27 of the Evidence Act. This was because while Section 27 allowed for the discovery of an object to be
made on the basis of a statement by the accused, the apparent effect of Section 162 would be to make such a
statement inadmissible. Hence, it was contended that Section 162 ought to be read differently from its plain and
literal meaning. The Court rejected such an interpretation, and observed:
The first words of the Section prohibiting the statement if recorded from being signed must apply to all the statements made
at the time and must therefore apply to a statement made by a person possibly not then even suspected but eventually
accused. Any such statement” must therefore include such a case: and it would appear that if the statement is to be
admitted at all it can only be by limiting the words “used for any purpose” by the addition of such words “except as evidence
for or against the person making it when accused of an offence.” If such an exception were intended one would expect to
find it expressed: and their Lordships cannot find sufficient grounds for so departing from the plain words used. If one had
to guess at the intention of the Legislature in framing a Section in the words used, one would suppose that they had in mind
to encourage the free disclosure of information or to protect the person making the statement from a supposed unreliability
of police testimony as to alleged statements or both. In any case the reasons would apply as might be thought a fortiori to
an alleged statement made by a person ultimately accused. But in truth when the meaning of words is plain it is not the duty
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of the Courts to busy themselves with supposed intentions...In this case the words themselves declare the intention of the
Legislature. It therefore appears inadmissible to consider the advantages or disadvantages of applying the plain meaning
whether in the interests of the prosecution or the accused.
In Rananjaya Singh v Baijnath Singh,11 the Court was considering Section 77 of the Representation of the People
Act, 1951. The Section provided that the maximum scales of election expenses at elections and the numbers and
descriptions of persons who may be employed for payment in connection with election shall be as may be
prescribed. As regard the maximum expense, Rule 117 of the Representation of People laid down that no expenses
shall be incurred or authorised by a candidate or his election agent on account of the conduct and management of
an election in any one constituency in a State in excess of the maximum amount specified in respect of that
constituency in Schedule V. The contravention of the provisions of section 77, read with rules 117 and 118 and
Schedules V and VI, was made a corrupt practice by section 123 (7). Section 123 (7) stated that in order to amount
to a corrupt practice the excess expenditure must be incurred or authorised by a candidate or his agent and the
employment of extra persons must likewise be by a candidate or his agent. It was argued that the employment of
volunteers had to be accommodated in the plain language of Section 123 to address lacunae in the Rules. It was
held that Rules 117-18 follow the language of Section 123 (7) of the Representation of the People Act, 1951, in that
they prohibit the employment of persons other than and in addition to those specified in Schedule VI and the
incurring or authorising of expenditure in excess of the amount specified in Schedule V in both cases by a
candidate or his agent. In the case under consideration, the employees of the father had assisted the son in his
election, butqua the appellant, these persons were neither employed nor paid by him. So far as the appellant was
concerned, they were mere volunteers, and the employment of volunteers did not bring the candidate within the
mischief of the definition of corrupt practice in Section 123 (7) . Das J., delivering the judgment on behalf of the
court, observed:
The spirit of the law may well be an elusive and unsafe guide and the supposed spirit can certainly not be given effect to in
opposition to the plain language of the section of the Act and the rules made thereunder. If all that can be said of these
statutory provisions is that construed according to the ordinary, grammatical and natural meaning of their language they
work injustice by placing the poorer candidates at a disadvantage, the appeal must be to Parliament and not to this court.
In Amar Singhji v State of Rajasthan,12 the Supreme Court observed that recourse to rules of construction would
be necessary only when a statute is capable of two interpretations. Where the language is clear and the meaning
plain, effect must be given to it. It was contended in the said case that Section 171 of the Rajasthan Land Reforms
and Resumption of Jagirs Act, 1952, classifies jagirs as listed jagirs and scheduled jagirs; there is an enumeration
thereof in Sch. I-II of the Act; no estate held on Bhumiichara tenure was mentioned therein; and that was an
indication that it was not included in s 169 of the Act. The contention was, however, not accepted. It was pointed
out: Section 171 does not exhaust all the jagirs or similar proprietary interest falling within Section 169 . The
scheme of the Act is that for purposes of succession and partition, jagirs are divided into three groups, scheduled
jagirs, listed jagirsand other jagirs... As the Bhumihara tenure descends like personal property and is divisible
among the heirs, it will be governed by Section 172, and cannot find a place in the schedule of listed or scheduled
jagirs. It was further observed that the word deemed in Section 169 imports that in fact there was no grant, and
therefore interests which were held otherwise than under a grant were obviously intended to be included. The Court
observed:
Reading the provisions of the Act as a whole, it is abundantly plain that what was meant by resumption was only
acquisition. Indeed, if the Act purported to be one for acquisition of jagirs, its provisions could not have been different from
what they are...These rules of construction are well settled, but recourse to them would be necessary only when a statute is
capable of two interpretations. But where, as here, the language is clear and the meaning plain, effect must be given to it. It
must also be added that the Act is one not merely to consolidate the law on the subject but also to amend it.
In Jogodishury Debea v Kailash Chandra Lahiry,13 the question referred to the decision of the full bench was
whether having regard to the provisions of Section 265 of the Code of Civil Procedure,1882, the civil court could
make a partition of land of revenue paying estate when no separate allotment of the government revenue was
asked for. In this case, a document was in the first instance presented for registration to the sub-registrar of
Sealdah who refused to register it on the ground of denial of execution. An application was thereupon made under
Section 73 (1) of the Registration Act to the Registrar at Alipore. This was dismissed on 26 January 1914. On 2
February 1914, the plaintiff lodged a plaint in the court of munsif at Alipore under Section 77 (1) of the Registration
Act. The munsif had no jurisdiction to entertain the suit, which should have been instituted in the civil court within
the local limits of whose original jurisdiction was situated the office in which the document was sought to be
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registered. This was plainly the court of the munsif at Sealdah and not the court of the munsif at Alipore within the
local limits of whose original jurisdiction was situated, not the office in which the document was sought to be
registered, but the office of the registrar who had exercised jurisdiction under Section 78 (1) of the Registration Act.
The munsif accordingly returned the plaint for presentation to the proper court. This order was made on 19 June
1914, and on the same day, the plaint was lodged in the court of the munsif at Sealdah. In these circumstances, the
defendant contended that the suit was barred by limitation, inasmuch as it had been instituted in a court of
competent jurisdiction beyond the expiry of the period of 30 days prescribed by s 77 (1). The plaintiff urged that he
was entitled to the benefit of Section 14, Indian Limitation Act, 1908, which read as follows:
In computing the period of limitation prescribed for any suit, the time during which the plaintiff has been prosecuting with
due diligence another civil proceeding, whether in a court of first instance or in a court of appeal, against the defendant,
shall be excluded, where the proceeding is founded upon the same cause of action and is prosecuted in good faith in a
court which, from defect of jurisdiction, or other cause of like nature, is unable to entertain it.
The defendant relied on Section 29 of the 1908 Act, which provided that nothing in the Act shall affect or alter any
period of limitation specially prescribed for any suit, appeal or application by any special or local law now or
hereafter in force in British India. It was not disputed that the Indian Registration Act was a special law and that
Section, which created the right to bring a suit to compel registration of a document, also specially prescribed a
period of 30 days as the period of limitation for the institution of such a suit. The question thus arose, whether the
rule contained in Section 14 of the Indian Limitation Act would, if applied to a suit under s 77 of the Indian
Registration Act, affect or alter the period of limitation prescribed thereby.
Mookerjee J. was of the opinion that on a plain reading of Section 29 of the Indian Registration Act, the cases of the
description such as under Section 77 of the Act, where neither the commencement of the period of limitation was
postponed nor the length of the period modified, but a portion of the time which had elapsed was eliminated might
well be deemed to furnish instances where the period of limitation had been affected or altered. Accordingly, the full
bench held that the provisions of Section 14 of the Indian Limitation Act, could not be applied in computing the
period prescribed under Section 77 of the Indian Registration Act.
In Gopal Chandra v Guru Charan,14 the question turned on the construction to be put on Section 105 (3),Bengal
Tenancy Act, and on the notification of government made under this section, which provided:
That an application made under section 105, sub-section (3) of the said Act, for a settlement of rent during the preparation
of a Record of Rights under Chapter 10 of the Act, should bear: (a) a stamp of 12 annas for each tenant making or joining
or joined in an application: and (b) if at any time, during the hearing of the application, an issue was raised by the applicant
under Section 105A of the said Act, in addition a stamp to the amount of an ad valorem fee chargeable under Article 1,
Schedule 1, Court Fees Act, 1870, as amended by the Bengal Court Fees (Amendment) Act, 1922, subject to a maximum
of Rs. 20.
It was argued for the petitioners that it could not have been the intention of the legislature that an application under
Section 105A would bear a higher court fee than a plaint in a suit for the same relief in the civil court. Mitter J.
thereupon observed:
But the intention of the Legislature can only be gathered from the plain words of the notification under section 105 (3) and it
is not permissible to a court while construing the plain words of a statute or a statutory rule to speculate whether the
intention of the Legislature was to impose a higher court fee than that provided for by the Court Fees Act in suits where
similar reliefs are asked for in the civil courts.As the notification was clear, the court held that the court fee payable was the
ad valorem fee on the subject matter of dispute.
In the case of Superintendent and Remembrancer of Legal Affairs, West Bengal v Nandaram Agarwala,15Section 6
(9)(ii) of the Taxation on Income (Investigation Commission) Act, 1947 was considered, and its effect on Rule 8 (i)
of the Taxation on Income (Investigation Commission) Rules.
Section 6 (9)(ii) read as follows: Subject to any rules made in this behalf under this Act, any authorised official shall
have power. (ii) if specially authorised in this behalf by the Commission, to enter any building or place where he has
reason to believe that any such books of account or documents may be found. The same powers had been granted
to the Investigation Commission under Rule 8 (i) of the Rules.
Page 4 of 5
Guha Ray and Sen JJ., held that reading Section 6 (9)(ii) of the Act along with Rule 8 (i), it was obvious that it was
open to the Commission to issue a search warrant even without specifying the buildings or places and leaving the
discretion as to which buildings and places should be searched entirely to the authorised official. Guha Ray J.,
delivering the judgment on behalf of the court, observed:
As regards the reasonableness of this construction of section 6 (9)(ii) and rule 8 (i), all we need to say is first that the
construction we have put on them appears to us to be the plain literal meaning of the terms and where such is the case, it is
not open to the court to go behind the words and speculate on this expediency or reasonableness; and secondly, that the
exigencies of a particular case amongst those for which special provision is made in this Act.
In Satheedevi v Prasanna,16 the Court was considering the expression `value of the property used in Section 40
(1) Kerala Court-Fees and Suits Valuation Act, 1959. The Court held that it should not be substituted with the
expression `market value of the property. The legislature had designedly used different language in Section 40 of
the Act and the term `market value had not been used therein. Hence, the intention of the legislature was to
determine court fee on the basis of valuation of the subject-matter in the suit, and not on the market value. The
Court observed:
The words used in the material provisions of the statute must be interpreted in their plain grammatical meaning and it is
only when such words are capable of two constructions that the question of giving effect to the policy or object of the Act
can legitimately arise; The Court cannot rewrite, recast or reframe the legislation because it has no power to do so. The
Court cannot add words to a statute or read words which are not therein it. Even if there is a defect or an omission in the
statute, the Court cannot correct the defect or supply the omission.
In Special Land Acquisition Officer v Karigowda,17 the Court had to consider whether the authority established
under the Land Acquisition Act, 1894, could go beyond the mandate of the Act to calculate the fair market value of
the land so as to determine compensation. The Court held that going by the principle of literal interpretation, it
would not be permissible for the authorities to go beyond the scope and purview of the provisions or the pre-
requisites stated in Sections 23 and 24 for determination of the fair market value of the land. Compensation had to
be determined strictly in accordance with the provisions, and the matters which were governed by the terms of
Section 24 of the Act could be taken into consideration by extending discretion in matters which ought to be
considered by courts in terms of Section 23 of the Act. The Court observed:
Literal interpretation would not look beyond litera legis, while functional interpretation may make some deviation to the letter
of the law. Unless, the law is logically defective and suffers from conceptual and inherent ambiguity, it should be given its
literal meaning. Where a statutory provision confers rights and also states mandatory or implied conditions which would
have to be satisfied before the claim, can culminate into a relief, such considerations or conditions are relevant for the
purposes of interpretation as well...The court should apply the principle of literal or plain construction to these provisions, as
the Legislature in its wisdom has not given to the court absolute discretion in matter relating to awarding of compensation
but has intended to control the same by enacting these statutory provisions.
9 . AIR 1923 PC 211.
10 . AIR 1939 PC 47 [LNIND 1939 PC 1], p 51.
11 . AIR 1954 SC 749 [LNIND 1954 SC 119]; Commr of Wealth-tax v Hashmalunnisa Begum AIR 1989 SC 1024 [LNIND
1989 SC 29], (1989) 1 JT 92, (1989) 40 ELT 239, (1989) Tax LR 393, [1989] 176 ITR 198 l, (1989) 42 Taxman 133,
(1989) 75 CTR 194, (1989) 93 (2) Taxation 1.
12 . AIR 1955 SC 504 [LNIND 1955 SC 36].
13 . (1897) ILR 24 Cal 725, p 741.

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14 . AIR 1929 Cal 141: the general principal of interpretation of statutes is that the ordinary meaning of the language
employed is to be looked at and it ought never to be necessary to introduce words of limitation or words of qualification
to explain the intention of the drafters of the Act; Mrinalini v Harlal Roy AIR 1936 Cal 339.
15 . AIR 1954 Cal 134 [LNIND 1953 CAL 181].
16 . (2010) 5SCC 622.
17 . (2010) 5 SCC 708.
End of Document
Golden Rule of Interpretation
NS Bindra
of Interpretation
The Golden Rule permits the plain meaning to be departed from if a strict adherence to it would result in an
absurdity, says Odgers.18 Burton J. observed in Warburton v Loveland: 19
I apprehend it is a rule in the construction of statutes, that, in the first instance, the grammatical sense of the words is to be
adhered to. If that is contrary to, or inconsistent with any expressed intention, or declared purpose of the statute, or if it
would involve any absurdity, repugnance, or inconsistency, the grammatical sense must then be modified, extended, or
abridged so far as to avoid such inconvenience, but no further.
Parke J. observed in Becke v Smith:20
If the precise words used are plain and unambiguous, in our judgment, we are bound to construe them in their ordinary
sense, even though it does lead, in our view of the case, to an absurdity or manifest injustice. Words may be modified or
varied where their import is doubtful or obscure, but we assume the function of legislators when we depart from the ordinary
meaning of the precise words used merely because we see, or fancy we see, an absurdity or manifest injustice from an
adherence to their literal meaning.
Lord Wensleydale called it the golden rule and adopted it in Grey v Pearson21 and thereafter it is usually known as
Lord Wensleydales Golden Rule. This is another version of the golden rule. His Lordship expressed himself thus:
I have been long and deeply impressed with the wisdom of the rule, now I believe universally adopted at least in the courts
of law in Westminster Hall that in construing wills, and indeed statutes and all written instruments, the grammatical and
ordinary sense of the words is to be adhered to, unless that would lead to some absurdity or some repugnance or
inconsistency with the rest of the instrument, in which case the grammatical and ordinary sense of the words may be
modified, so as to avoid that absurdity and inconsistency, but no further.
Jervis CJ. also described it as the golden rule in Matteson v Hart:22
We must, therefore, in this case have recourse to what is called the golden rule of construction, as applied to Acts of
parliament, viz to give to the words used by the Legislature their plain and natural meaning, unless it is manifest, from the
general scope and intention of the statute, injustice and absurdity would result from so construing them.
In Promode Ranjan v Mullick,23 KC Das Gupta J. observed:
The golden rule of interpretation is that we must first try to ascertain the intention of the Legislature from the words used, by
attaching the ordinary meaning of the word on the grammatical construction adding nothing and omitting nothing; and to
give effect to the intention thus ascertained, if the language is unambiguous, and no absurdity results. If the language is not
free from ambiguity, it becomes necessary and proper to take into consideration the background of the legislation and other
circumstances which may help the ascertainment of the intention. If, even though free from ambiguity, the ordinary meaning
of the words used gives rise to an absurdity, we have to endeavour to avoid the absurdity, by adding, if possible, some
words and omitting some words, to ascertain the Legislatures intention.
Page 2 of 7
In Priyavarte Mehta v Amrendu Banerjee,24 the Court held as follows:
The intention of the legislature is to be gathered from the language of the statute itself. If the language or words are plain,
clear, unambiguous and explicit and the meaning of the statute is clear and sensible and admits of only one meaning then
no question of construction arises as the provision speaks of itself. However, when the plain meaning results in absurdity,
inconsistency or ambiguity or defeats the purpose or object of the provisions, then the rule of interpretation can be applied
to find out the intendment or the object of the relevant provision. If two views are possible, one effectuates the purpose or
intendment of the provision and the other frustrates it, the former must be preferred. Every effort should be made to have a
purposive construction with a view to effectuate the purpose and object of the statutory provision.
Illustrations for the Golden Rule
In Bootamal v Union of India,25 the golden rule of grammatical construction was adopted by the Supreme Court in
resolving the divergent views of different High Courts on the interpretation of the words when the goods ought to
have been delivered occurring in Article 31 of the Limitation Act 1908 (Article 11 of the 1963 Act). The view taken by
some of the High Courts, that the time from which limitation was calculated began to run from the date on which the
railway finally refused to deliver the goods, was overruled by the Supreme Court.
In Yashpal v State of Chattisgarh,26 The Supreme Court while interpreting the term universities observed that the
golden rule of interpretation is that words should be read in their ordinary, natural and grammatical meaning. The
State List conferred the power on the state legislatures to incorporate universities whereas the Centre has been
given the power to determine and co-ordinate standards of education. The state legislature could make an
enactment providing for incorporation of universities under Entry-32 of List II and also generally for universities
under Entry-25 of List III. The Court held that the subject University as a legislative head must be interpreted in the
same manner as it was generally or commonly understood, namely, with proper facilities for teaching of higher level
and continuing research activity. An enactment which simply clothed a proposal submitted by a sponsoring body or
the sponsoring body itself with the juristic personality of a university so as to take advantage of Section 22 of the
UGC Act, 1956, thereby acquiring the right of conferring or granting academic degrees but without having any
infrastructure or teaching facility for higher studies or facility for research was not contemplated by either of these
Entries. Hence, Sections 5 and 6 of the Chhattisgarh Niji Kshetra Vishwavidyalaya (Sthapana Aur Viniyaman)
Adhiniyam, 2002 were held to be whollyultra vires and being a fraud on the Constitution.
In Ishwari Prasad v Registrar, Allahabad University,27 the Court was considering Section 42 of the Allahabad
University Act, 1921. Section 42 read as follows:If any question arises whether any person has been duly elected or
appointed as, or is entitled to be, a member of any authority or other body of the University, the matter shall be
referred to the Chancellor, whose decision thereon shallbe final. The question before the Court was whether the
section imposed on the Chancellor the duty of deciding the dispute referred to him in accordance with the
provisions of the University Act and the Statutes made thereunder, or did he have to consider the matter from the
point of view of policy and expediency. The Court went beyond the literal language of Section 42, and Mootham J.
held:
Expressions duly elected or appointed and entitled to be clearly refer, in my opinion, to the legal rights of the person
concerned under the Act and Statutes, and the Advocate-General agreed that the Chancellor could not otherwise dispose
of the question referred to him. In such circumstances I can entertain no doubt that the section imposes on the Chancellor
the duty to act judicially in arriving at his decision.
In Omprakash v State28 the question was whether the rule about sanction for prosecution as laid down in Section 6
of the Prevention of Corruption Act 1988, was applicable to prosecution of a public servant under Section 409 of the
Indian Penal Code 1860. An offence under s 5 (1)(c) of the Prevention of Corruption Act, was almost identical with
an offence under Section 409, IPC, with the difference that for a prosecution under Section 5 (1)(c), sanction was
necessary by virtue of the provisions of Section 6 . The legislature did not choose to include Section 409, IPC,
within the ambit of s 6, and the court was held not competent to extend its meaning so as to include Section 409,
IPC, which is not there. It was observed:It is a well recognised principle that a statute should be interpreted
according to the plain meaning of the words and should not be given a wider meaning that what the words would
actually denote.
Page 3 of 7
In Misrilal v Bhagwati Prasad,29 the Court held that the starting point of limitation under Article 178 of the Limitation
Act as amended in 1940, was the date of the service of notice and not the date of the award, or the knowledge of
the award. If a party did not receive a notice of the award as prescribed by Section 14 (2) of the Arbitration Act, he
would be within his rights to wait for the receipt of such notice. If he finds some time later that no notice had been
received by him, it would be open to him to make an application for the filing of the award, even if no notice has
been received, but in all such cases, the application would not become barred by time unless it is presented more
than 90 days after the receipt of a written notice of the award. The Court observed:
In view of the clear provisions of the enactment, there is no necessity to probe into the intention of the legislature. In
construing the provisions of the Limitation Act, the golden rule is that it should not be so construed that it would result in
time commencing to run against a party even before the right to sue accrued in his favour, because it results in obvious
injustice and absurdity.
In the case of Bansraj v State,30 Upadhya and Desai JJ., on reference held that Section 123 of the Motor Vehicles
Act, 1939, punishes the doing of only that act which is prohibited from being done by Section 42 (1), and it does not
punish any act prohibited by some other provision. If a driver takes out a motor vehicle in a public place without a
permit and without consent of the owner, the owner cannot be said to permit him to use the vehicle and would not
be guilty under Section 123 of the Act. Upadhya J. dealing with the said sections observed:
Courts have to interpret the statutes primarily according to their plain meaning and I am unable to find any authority for the
view that the meaning of the words used has to be strained so as to make it conform to some assumed intention of the
Legislature.
Desai J. observed:
The Legislatures intention is relevant only when the language used by it is ambiguous, capable of two interpretations, and
the court is required to adopt that interpretation which is in accordance with the legislatures intention. If the language is
simple and plain, capable of only one interpretation, the courts duty is to adopt that interpretation and it would not be
justified in embarking upon any inquiry into the Legislatures intention. Moreover, even when a court has to ascertain the
Legislatures intention, it has to do so from the words used by itself; it cannot speculate about the Legislatures intention or
assume it without any data.
In Ramkrishna v Ratan Chand,31 the Court observed that each article of the Limitation Act had its own language,
and it was that language which was to be interpreted in each case. Hence, an explanation which was peculiar to
Article 182 only, and which did not find a place in Article 183, laid down that where two persons are jointly liable
under a decree, an application made against any one of them will keep the limitation alive against the other. Since
these provisions do not find place in Article 183, the Court held that they cannot be applied to proceedings
governed by Article 183.
In reSubramanyam,32 the Court held that where the statute uses different words with definite connotation, it was
not open to the court to probe into the legislative intention and give the same meaning to the different words, when
there was no ambiguity. In the absence of any ambiguity, courts were bound to give full meaning to the words used
by the legislature. With this legal basis, the Court held that the in the case of an order under Order 7, Rule 11 of the
Code of Civil Procedure, 1908 (rejection of plaint), there was no provision for collecting the court fee due to the
government for the simple reason that the plaint would be treated as if it were not filed at all, whereas in the case of
dispaupering under Order 33, an express provision had been made enabling the court to make an order for
payment of court fee. For that very reason, the authors of the rule designed the word dismissal in contradistinction
to the word rejection.
Westropp CJ. adopted the most natural construction in Re Ratansi v Kalyanji33 in interpreting Section 342 of the
Code of Civil Procedure, 1872, which was thus held not to be retrospective in its effect. What Lord Wensleydale
called the grammatical and ordinary sense in Grey v Pearson,34 has been called the ordinary idiomatic sense in
another case.35Section 499 of the IPC provided:
Whoever by words either spoken or intended to be read, or by signs or by visible representations, makes or publishes any
Page 4 of 7
imputation concerning any person intending to harm, or knowing or having reason to believe that such imputation will harm,
the reputation of such person is said, except in the cases hereinafter excepted, to defame that person.
The complainant had filed a suit in a civil court against the accused. In that suit, the accused in the course of his
examination as a witness for the plaintiff, made the following statement: The plaintiff has brought this false suit
against me. He has undergone imprisonment in the Thana jail, and he is a man of damaged character. After the
decision of the civil suit, the complainant prosecuted the accused on a charge of defamation under Section 500 of
the IPC. The trying magistrate found the accused guilty of the offence charged. The Sessions judge, being of the
opinion that the conviction was illegal, referred the case to the High Court under Section 438 of the Criminal
Procedure Code. The High Court held that the conviction was legal, as the language of Section 499 did not
accommodate for any exception for statements made during court proceedings.
The issue before the Karnataka High Court in Sambhav Constructions v State of Karnataka36 was whether Rule 22
of the Karnataka Transparency in Public Procurements Rules, 2000, contained any prohibition against extending
the validity of a tender beyond one extension. The State Financial Corporation Act, 1951, set up State Financial
Corporations (SFC) to advance medium and long term credit to industrial concerns. Section 29 of the Act provides
for the recovery of the amount without the intervention of the courts. The question was whether this section which
allowed the property of a borrower to be confiscated could also be extended to be applicable to the surety, without
express statutory provision. The court cited cases37 in support of the golden rule of interpretation and the rule that
it is impermissible to add or subtract words from a statute in the garb of finding out the intention of the legislation. It
therefore held that in the absence of an express statutory provision, the power to take over the property of another,
without intervention of court, cannot be a matter of inference.38 Violation of this rule, it held, would amount to a
violation of Article 300A of the Constitution.39 The court noted that it was a principle well established under the
Indian Contract Act, 1872, that the liability of the surety is co-extensive with that principal-debtor. However, the
court proceeded to rely on the principle of interpretation of statutes that each clause of the statute must be
construed in consistence with the whole statute. Based on this, the Court rejected the contention of the SFC that
Section 29 [of the Act] gives the right to the financial corporation to transfer by way of lease or sale and realise the
property pledged, hypothecated or assigned to the financial corporation, without restricting such right only in respect
of the property of the industrial concern/borrower.40 The Court held:
the legislature had made its intention clear by incorporating these wordscompletion of evaluation of tender within the period
stipulated is the rule and only in exceptional cases, the period for evaluation may be extended...to interpret the rule
regarding extension as the rule regarding extensions would amount to rewriting the legislation and going against the
intention of the legislature. Since the extension could not be continued beyond the period stipulated, the tender was
declared invalid and the government was accorded liberty to call for fresh tenders.
In Sree Gajanana Motor Transport Company Ltd v The Karnataka State Transport Appellate Tribunal,41 the issue
was whether the appellant, who was not directly concerned with the proceedings before the transport authority, was
entitled to file a revision under Section 90 of the Motor Vehicles Act, 1988, or was he only entitled to file an appeal
under Section 89 of the Act. The appellant sought to file a revision petition against the second respondents order
granting variation of conditions of the permit of the fourth respondent. The court relied on the golden rule of
interpretation, keeping in mind the objectives of the statute concerned. After discussing the interpretation of the
word any as interpreted in a catena of decisions, the Court held that what could be deduced from those
pronouncements is that the words any person may not include each and every person regardless of the context or
the circumstances in which the word any as an adjective is used, but it would surely include an aggrieved person.
The appellant, the court held, being a person aggrieved, would be entitled to file a revision petition.
In State of Kerala v M Shadevan,42 the Court observed that it was necessary to give a meaningful interpretation.
When the rule said that classified restaurants were eligible to get a bar license and when there can be no classified
restaurants anywhere in India, but only approved restaurants as per the guidelines issued by the Government of
India, the word classified had to be read as approved as the rules and regulations were framed for implementing the
government policy. The authorities were expected to bear this in mind while interpreting the rules that the rejection
of an application for grant of bar license for the sole reason that the restaurant is not a classified restaurant but an
approved restaurant would be illegal, arbitrary and would go against the declared policy of Government of India.
In Mercantile Bank of India Ltd v Official Assignee, Madras,43 the dispute was in respect of title on certain goods,
the railway receipt in respect whereof had been endorsed to the bank by the person who subsequently was
Page 5 of 7
adjudicated an insolvent. It was necessary to determine the import of the word person in Section 178 of the Indian
Contract Act read with the proviso in that section. Stone J. italicised the expressionhave not been obtained from
their lawful owner. The Court applied that rule to Section 178 and framed the question thus: Does the phrase
person not in possession of goods include (giving the words their ordinary meaning) the owner of the goods not in
possession of goods?The Court invoked the rule of plain meaning and held that it did include the latter.
The Court then considered whether there was repugnancy or inconsistency with the rest of the Contract Act. The
Court held that looking at Section 103, where the owner is expressly mentioned as a person having power to pledge
(i.e. make a bailment of goods) by pledging documents of title, there was no repugnancy between Section 178 and
the rest of the Act. The Court observed:
The duty of a court is not to draft laws so that they may be just or reasonable or consonant to accepted principles. Its duty
is to expound the laws as they stand giving meaning to all words used either according to common usage or, if defined,
according to the meaning given therein in the Act in question or in the Interpretation Act. It is of course unfortunate that an
Act should be drafted and then that definition should be added which results in most curious results, but, however curious
the results, a judge must give effect to them. The legislature must use the pruning knife if it is to be used at all.
In Secretary of State v Geeta,44 the railway company contended that the expression permanently employed in
Section 2 (l)(n)(i) of the Workmens Compensation Act, 1923, meant a railway servant who was permanently
engaged as opposed to one who was temporarily engaged. The claimants on the other hand contended that it
meant one who habitually and continuously works in office. Neogy J. stated:
I confess the construction of that expression is by no means easy. The language appears to be clear but involves difficulty
in its application. The well-known rule is to construe the language of a statute in its ordinary grammatical sense unless it
leads to some incongruity or manifest absurdity. I have therefore to see which of the two interpretations proposed stands
this test. The two interpretations proposed by the parties differ in this that while the Railway Company lays emphasis on the
duration of the employment, the claimants stress the nature and venue of the employment. If duration of the employment is
to be the test, it will logically follow that a railway servant who is not permanently employed, that is to say, a person who is
temporarily employed will fall under the definition of workman. The result will be that a privilege which is given to a
temporary servant is denied to a permanent servant. To put it more concretely, a person working as a substitute for six
months in place of permanent incumbent in the District Office will be entitled to be regarded as a workman while the
permanent servant for whom he acts as a substitute will not be a workman...It is obviously illogical for the Railway
Company to say we will compensate for the loss of the life of a substitute because he was not a permanent servant, but we
are not bound to compensate his principal because he was a permanent servant. Such a situation is untenable and could
not have been intended by the Legislature...The word employment has a two-fold meaning. It may mean: (1) engagement,
that is contract of service; or (2) work in the course of employment. It is in the latter sense that the word appears to have
been used in the list of persons described in Schedule 2 of the Workmens Compensation Act. The expression not
permanently employed on any office of a railway contemplates such servants as are not required to perform their duties
continuously or habitually in the office, that is to say, indoors, but occasionally have to do outdoor work in the course of their
employment. The word permanent denotes continuity and the expression in its concrete application will mean not
continuously working in any office. I concede that this may appear to be a forced interpretation but it yields a sense which
accords with the experience of practical life. To sum up: The plain grammatical meaning of the expression under
consideration leads to absurdity; while expending the enacting words beyond their common-place import yields a rational
meaning. The task of making the choice involves me in no difficulty. I have no hesitation in accepting the second
interpretation which avoids imputation of an absurd intention to the Legislature.
In Shridhar Krishnarao v Narayan Namaji,45 the Nagpur High Court CJ found Section 13 of the Central Province
Debt Conciliation Act, 1933, running counter to Section 12 (2) of the same Act. Stone and Vivian Bose JJ.observed:
We have now to see how and in what way the modification is to be made. As regards this we bear in mind: (1) the fact that
this legislation makes drastic inroads upon vested rights; and that therefore (2) we should not attempt to fetter the usual
freedom of contract permissible under the law for the settlement of these vested claims except insofar as we are expressly
or by necessary implication directed to do so; and (3) we note that section 12 not only imposes no restrictions upon the kind
of settlement which may be made, but on the contrary indicates that it is using at least one word, the word amounts, in a
much wider sense than usual. We also think it right to take into consideration other matters to which reference would not
have been permissible had the words of the Act been clear and unambiguous.
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In Sashi Bhusan Rai v Bhuneshwar Rai,46 Imam CJ. and Narayan J. held that it is quite wrong to read in the words
of Article 182 (2), Limitation Act, a meaning which is contrary to the plain and ordinary meaning of words actually
used in the statute. With reference to Article 182 (2) of the Limitation Act 1908, the judges held that the order of the
appellate court granting the appellant certain time to deposit the printing costs is a judicial order and further
direction that if the printing cost was not deposited within the time allowed, the appeal shall stand dismissed without
further reference to the bench, is not only a judicial order, but an order which, if not complied with, finally disposes
of the appeal and furnishes a fresh starting point of limitation.
In BS Bali v Batalia Ram,47Section 2 (c) of the Displaced Persons (Debts Adjustment) Act 1951 was under
scrutiny. The relevant part of the provision read as follows:that the debtor is any person, whether a displaced
person or not a displaced person. It was held that from the words in Section 2 (c), it was plain that the debtor may
be a displaced person or may not be a displaced person, and where a debtor is not a displaced person, no question
could arise about the debt having been incurred before the debtor came to reside in any area now forming part of
India.
18 . Odgers, Construction of Deeds and Statutes, second edn, 1946, p 294.
19
.(1929) 1 H&BIR 623, p 648:
Grammer may, no doubt, sometimes render assistance to law by helping to the construction, and thereby to the
meaning of a sentence; but grammar, with reference to a living, and therefore, a variable language, is perhaps more
difficult to deal with than law, and the rules of legal construction are more certain than the rules of grammatical
construction.
Eastern Counties and London and Blackwell Rly v Marriage 9 HLC 32, p 62: I prefer to guide my judgment by the rule
of construction laid down in Warburton v Loveland, said Lord Fitzgerald in Bradlaugh v Clark [1883] 8 AC 435 ,p
484; Regional Provident Fund Commrs, Bombay v Shree Krishana Meal Mfg Co AIR 1962 SC 1536 [LNIND 1962 SC
113], p 1540: not an invariable rule; Commr of Wealth-tax v Hasmatunnissa Begum AIR 1989 SC 1024 [LNIND 1989
SC 29], p (1989)
1 JT 92, (1989) 40 ELT 239, (1989) Tax LR 393, [1989] 176 ITR 98, (1989)_42 Taxman 133, (1989) 75 CTR 194,
(1989) 93 (2) Taxation 1; Steel Authority of India Ltd v Bihar Agriculture Products Market Board &Ors AIR 1990 Pat
146; Mithelesh Kumari v Prem Bihari Khare AIR 1989 SC 1247 [LNIND 1989 SC 96], (1989) 2 SCC 95 [LNIND 1989
SC 96], 1989 (1) JT 275, (1989) 1 Ker LJ 424, (1989) MPLJ 156 [LNIND 1989 SC 96], (1989) 2 MLJ 1 [LNIND 1989 SC
96] (SC), (1989) 1 APLJ 31 (SC), (1989) 76 CTR 27, (1989) 40 ELT 267 [LNIND 1989 SC 96], [1989] 177 ITR97,
(1989) 2 Cur C 33, (1989) Mah LJ 210, (1989) 92 (2) Taxation 23, (1989) 1 Civ LJ 635, (1989) 2 Land LR 97, (1989)
TLNJ 1, (1989) 103 Mad LW 430 [LNIND 1989 SC 96]; Jibeswar Chakravorty v Kusheswan Borah and Durga Borah
(1991) 1 Gau LR 167.
20 .(1836) 2 M&W 191, 195, 6 LJ Ex 54, 150 ER 724; Allen, Law in the Making, fourth edn, pp 402-03; Abbey v Dale,
Jervis (1851) 20 LJCP 233, p 235; followed in State of Kerala v West Coast Planters AIR 1958 Ker 41 [LNIND 1957
KER 219], p 43; Sirsilk Ltd v Govt of Andhra Pradesh AIR 1960 AP 373 [LNIND 1960 AP 10], p 375.
21 .(1857) 6 HL as 61, p 106, 26 LJ Ch 473, p 481 Abbot v Middleton [1858] 11 ER 28, 7 HLC 114, 115, per Lord
Wensleydale.
22 .(1854) 23 LJCP 108, p 144; Perry v Skinner (1837) 2 M&W 471, p 476.
23 . AIR 1959 Cal 318 [LNIND 1958 CAL 198]-19; Jessops Co-op Society v Registrar, Co-op Societies AIR 1976 Cal 309
[LNIND 1976 CAL 71].
24 . (1997) AIHC 4292 (Pat).

Page 7 of 7
25 . AIR 1962 SC 1716 [LNIND 1962 SC 133].
26 .Prof Yashpal v State of Chhattisgarh (2005) 5 SCC 420 [LNIND 2005 SC 135].
27 . AIR 1955 All 131 [LNIND 1954 ALL 204].
28 . AIR 1955 All 275 [LNIND 1954 ALL 236].
29 . AIR 1955 All 574.
30 . AIR 1956 All 27 [LNIND 1955 ALL 158].
31 . AIR 1956 All 32, p 35.
32 . AIR 1955 AP 74 [LNIND 1954 AP 85], p 77; Budhulal v Deccan Banking Co AIR 1959 Hyd 69.
33 . (1877-78) ILR 2 Bom 148, p 161; we cannot take the occasional inconvenience as a ground for rejecting the plain
construction which aims at general benefit: West J in Haji Abdul Rahman v Khoja Khaki Aruth (1887) ILR 11 Bom 6, p
18; Tukorijrao Holkar v Sowkabai AIR 1929 Bom 100, p 102, (1929) ILR 53 Bom 251.
34 .(1857) 6 HLC 61, p 106.
35 .Sorabji Edulji Warden v Govind Ramji (1892) ILR 16 Bom 91, p 100, per Telang J.
36 . AIR 2005 Ker 326, 2004 (2) CTLJ 233.
37 .Glaxo Laboratories (India) Limited v Presiding Officer, Labour Court AIR 1984 SC 505 [LNIND 1983 SC 289].
38 . The court dissented from the opinion of the Orissa and P&H High Courts in the cases of KT Sulochana Nair v
Managing Director, Orissa State Financial Corporation AIR 1992 Orissa 157 and Jasbir Kaur v Punjab State Industrial
Development Corporation Ltd AIR 2002 P& H 74 respectively. The court reasoned that these courts had ignored the
specific wording of the section to extend the power to possess and manage the property of the industrial concern only.
39 .N Narasimahaiah v Karnataka State Financial Corporation AIR 2004 Kar 46.
40 .Ibid.
41 . AIR 2003 Kar 326; 2004 (2) Kar LJ 87.
42 . (2000) AIHC 340 (Ker).
43 . AIR 1938 Mad 207, p 210, (1929) ILR 56 Mad 127.
44 . AIR 1938 Nag 91.
45 . AIR 1939 Nag 227, (1939) ILR Nag 503.
46 . AIR 1955 Pat 124; SN Sahi v Vishwanathlal AIR 1960 Pat 10: some rules of interpretation.
47 . AIR 1954 Punj 105-06.
End of Document
Mischief Rule of Interpretation
NS Bindra
of Interpretation
Heydons Case and Beyond
The enunciation of the mischief rule is traced to the Heydon s case,48 where Lord Coke articulated the opinion of
the law lords as follows:
It was resolved by them that for the sure and true interpretation of all statutes in general be they penal or beneficial,
restrictive or enlarging of the common law...the obligation of all the judges is always to make such construction as shall
suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the
mischief, and pro privato 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. This rule is popularly known as the mischief rule. In a broader sense, this may be
understood as the purposive construction of statutes.
Consequent to this enunciation the Mischief Rule is considered to contain the following four parts:
(i) what was the common law before the making of the Act;
(ii) what was the mischief and defect for which the common law did not provide;
(iii) what remedy the parliament has resolved and appointed to cure the disease of the commonwealth;
(iv) the true reason of the remedy; and then the office of all the judges is always to make such construction as
shall suppress the mischief and advance the remedy.
A literal interpretation is not always the only interpretation of a provision in a statute and the court has to look at the
setting in which the words are used and the circumstances in which the law came to be passed to decide whether
there is something implicit behind the words actually used that would control the literal meaning of the words used
in a provision of the statute. It is permissible to control the wide language used in a statute if that is possible by the
setting in which the words are used and the intention of the law making body which may be apparent from the
circumstances in which the particular provision came to be made. Therefore, a literal and mechanical interpretation
is not the only interpretation which courts are bound to give to the words of a statuteit may be possible to control the
wide language in which a provision is made by taking into account what is implicit in it in view of the setting in which
the provision appears and the circumstances in which it might have been enacted.49 Consideration of the mischief
aimed at may also lead to a restricted interpretation of statute. The Supreme Court in Sri Ram Saha v State of West
Bengal50 clarified this proposition when it observed that the courts could not re-write a statute in the guise of
purposive interpretation. A purposive interpretation may permit a reading of the provision consistent with the
purpose and object of the Act but the courts cannot legislate and enact the provision either creating or taking away
substantial rights by stretching or straining a piece of legislation.
48 .(1584) Co Rep 7a, 7b.

49 .RL Arora v State of Uttar Pradesh [964] 6 SCR 784, p 794, per Wanchoo J.
50 . (2004) 11 SCC 497 [LNIND 2004 SC 1077].
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End of Document
Scope
NS Bindra
of Interpretation
Scope
For an application of the mischief rule firstly it must be possible to determine from a consideration of the provisions
of the Act read as a whole what the mischief was that was the purpose of the Act to remedy; secondly, it must be
apparent that the draftsman and Parliament had by inadvertence overlooked, and so omitted to deal with, an
eventuality that required to be dealt with if the purpose of the Act was to be achieved; and thirdly, it must be
possible to state with certainty what were the additional words that would have been inserted by the draftsman and
approved by Parliament had their attention been drawn to the omission before the Bill passed into law. Unless
these three conditions are fulfilled any attempt by a court of justice to repair the omission in the Act and to
determine what is the meaning of a written law, which Parliament has passed cannot be justified as an exercise of
its jurisdiction. Such an attempt crosses the boundary between interpretation and legislation. It becomes a
usurpation of the function, which under the Constitution of this country is vested in the legislature to the exclusion of
the courts.
Illustrations of the application of the mischief rule
In the well-known case of Smith v Hughes,51 it was held that prostitutes who attracted the attention of passers-by
from balconies or windows were soliciting in a street within Section 1 (1) of the Street Offences Act, 1959. Lord
Parker CJ. held:
For my part, I approach the matter by considering what is the mischief aimed at by this Act. Everybody knows that this was
an Act intended to clean up the streets, to enable people to walk along the streets without being molested or solicited by
common prostitutes. Viewed in that way, the precise place from which a prostitute addressed her solicitations to somebody
walking in the street became irrelevant.52
In Goaplast Pvt Ltd v Chico Ursula DSOUZA,53 the Supreme Court was called upon to determine whether Section
138 of the Negotiable Instruments Act, 1881, applied to a case in which a person after issuing a post-dated cheque
subsequently instructs the drawee bank to stops the payment. It was contended that Section 138 of the NI Act
being a penal provision, it should come into effect only when the conditions therein are strictly fulfilled. The court
held that it is the duty of the court to interpret the provision in keeping with the legislative intent and purpose so as
to suppress the mischief and advance the remedy. Considering that the legislative purpose of Section 138 of the
Act was to permit efficacy of banking etc. the section was held to be applicable in the facts of the case.
In Reema Aggarwal v Anupam,54 the Supreme Court applied the suppression of mischief rule to hold that the
obvious objective of dowry prohibition law was to prevent harassment of a woman who enters into a marital
relationship and later on becomes victim of his greed for money. The accused cannot be allowed to take shelter
behind a smoke screen to contend that since there was no valid marriage, the question of dowry does not arise.
Instead in the face of the object of the Act it would be appropriate to construe the expression husband to cover a
person who enters into marital relationship and under the colour of such proclaimed or feigned status of husband,
subjects the woman concerned to cruelty or coerces her in any manner or for any of the purposes enumerated in
Sections 304B / 498A of the Indian Penal Code, 1860, whatever be the legitimacy of the marriage.
In CIT v Sodra Devi,55 the court observed that the legislature was guilty of using an ambiguous term. There is no
knowing with certainly as to whether the legislature meant to enact these provisions with reference only to a male of
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Scope
the species using the words any individual or such individual in the narrower sense of the term indicated above or
intended to include within the connotation of the words any individual or such individual also a female of the
species. Holding the words any individual and such individual as restricted in their connotation to mean only the
male of the species, the court observed that the evil which was sought to be remedied was the one resulting from
the widespread practice of husbands entering into nominal partnerships with their wives, and fathers admitting their
minor children to the benefits of the partnerships of which they were members. The Income-tax Act sought to
remedy this evil. The only intention of the legislature in doing so was to include the income derived by the wife or a
minor child, in the computation of the total income of the male assessee, the husband or the father as the case may
be for the purpose of the assessment.
In Mahaveer Distributors v Bangalore Electricity Supply Corporation,56 the issue was whether the petitioner-lessee
has a right to insist on an independent electrical connection of a commercial nature to the leased premises when
the owner of the premises has already obtained an electricity installation to the said premises in his own name. The
provision is question, Section 4.12 (ii), provided that in case of domestic/non-commercial installations, the consent
of the owner was not necessary where the owner was not the occupant of the premises. In such cases, proof of
occupancy such as a valid power of attorney, latest rent paid receipt or a valid lease deed ought to be produced. In
interpreting this provision, the Court held that the impugned section was aimed at addressing the mischief of those
owners of domestic or non-commercial installations, who used electricity as a lever either to evict their tenants or to
demand higher rent. The Court thus held that when the legislature has expressly used the words domestic or non-
commercial installations and deliberately did not use the words commercial installation, the said provision could be
read to include commercial installations. Therefore the tenant of a commercial premise could obtain electricity for a
commercial installation without the permission of the owner.
In National Insurance Company Ltd v Baljit Kaur,57 the Supreme Court pointed out that Section 147 of the Motor
Vehicles Act, 1988, was amended to provide protection to the owner of the vehicle and his authorised
representatives. This was the only mischief intended to be removed, and thus, ...it was not the intention of the
legislature to provide for the liability of the insurer with respect to passengers, especially gratuitous passengers,
who were neither contemplated at the time the contract of insurance was entered into, nor any premium was paid to
the extent of the benefit of insurance to such category of people.
In Kotak Mahindra Bank v Hindustan National Glass Ltd,58 the Court was called upon to construe the expression
wilful default occurring in Clause 2.1, RBIS Master Circular on Wilful Defaulters, issued on July 1, 2008. The Court
observed that the mischief being tackled was that banks were not exploited by parties who had the capacity to pay
their dues to the banks but who willfully avoided paying their dues to the banks. Hence, the Court held that the
expression wilful default in Clause 2.1 extended to also mean a unit which had defaulted in meeting its payment
obligations to the bank under facilities such as a bank guarantee. The Court observed:
The words in a statute or a document are to be interpreted in the context or subject-matter in which the words are used and
not according to its literal meaning.
In Balasaheb Khade v State of Maharashtra,59 the Bombay High Court was considering Section 378 of the Code of
Criminal Procedure, 1973, which granted a right of appeal to the victim. The question before the Court was whether
this right was available to a victim in case of acquittal without seeking the leave of the High Court. The majority held
that the right was not available, but Roshan Dalvi J. dissented, and observed:
It is the mischief that is done by the State in either not investigating the case properly or in not prosecuting the case
efficiently that the right of appeal has been given to the victim.
Hence, in his opinion, the right to appeal ought to be available even if prior leave was sought, although Section 378
did not make any such provision.
51 . [1960] 1 WLR 830, p 832, per Lord Parker CJ.
52 . As to being on the road (Road Traffic Act 1960): Randall v Motor Insurers Bureau [1968] 1 WLR 1900.
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Scope
53 . (2003) 3 SCC 232 [LNIND 2003 SC 301]; see also Sunil Kumar Rana v State of Haryana, (2003) 2 SCC 628.
54 . (2004) 3 SCC 199 [LNIND 2004 SC 1499].
55 . AIR 1957 SC 832 [LNIND 1957 SC 59].
56 . AIR 2004 Kant 205 [LNIND 2003 KANT 59].
57 . (2004) 2 SCC 1 [LNIND 2004 SC 23]. On the use of the mischief rule to comprehend the purpose of a statutory
amendment, see also Collector of Central Excise, Ahmedabad v Orient Fabrics Pvt Ltd (2004) 1 SCC 597.
58 . (2013) 7 SCC 369 [LNIND 2012 SC 793].
59 . 2013 ALLMR (Cri) 1153.
End of Document
Strict and Liberal Construction 60
NS Bindra
of Interpretation
Liberal Interpretation
In a liberal construction of the statute, its meaning can be extended to matters which come within the spirit or
reason of the law or within the evil which the law seeks to suppress of correct, although, of course, the statute can
under no circumstances be given a meaning inconsistent with, or contrary to be language used by the legislators.
Consequently, any matter reasonably within the statutes meaning, may be included within the statutes scope,
unless the language necessarily excludes it.61 Where the literal meaning of the words used in a statutory provision
would manifestly defeat its object by making a part of it meaningless and ineffective, it is legitimate and even
necessary to adopt the rule of liberal construction so as to give meaning to all parts of the provision and to make the
whole of it effective and operative.62 If the letter of the law is logically defective, it must be made logically perfect,
and it makes no difference in this respect whether the defect does or does not correspond to one in the sententia
legis itself. Where there is a genuine and perfect intention lying behind the defective text, the courts must ascertain
and give effect to it; where there is none, they must ascertain and give effect to the intention that the legislature
presumably would have had, if the ambiguity, inconsistency, or omission had been called to mind. This may be
regarded as the dormant or latent intention of the legislature, and it is this which must be sought for as a substitute
in the absence of any real and conscious intention. Salmond has observed,To correct the sententia legis on logical
grounds is a true process of interpretation...it fulfils the ultimate or dormant, if not the immediate or conscious
intention of the legislature.63
Where the language of a statute, in its ordinary meaning and grammatical construction, leads to a manifest
contradiction of the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or
injustice, presumably not intended, a construction may be put upon it, which modifies the meaning of the words,
and even the structure of the sentence. This may be done by departing from the rules of grammar, by giving an
unusual meaning to particular words by altering their collocation, by rejecting them altogether, or by interpolating
other words, under the influence, no doubt, of an irresistible conviction that the legislature could not have possibly
intended what its words signify, and that the modifications thus made are mere corrections of careless language
and really give the true meaning.64 However, a liberal construction does not require that words be accorded a
forced, strained, or unnatural meaning, or warrant an extension of the statute to the suppression of supposed evils,
or the effectuation of conjectural objects and purposes not referred to nor indicated in any of the terms used.65
In Ram Nath Sao alias Ram Nath Sahu& Others v Gobardhan Sao & Others,66 it was held that the expression
sufficient cause within the meaning of Section 5 of the Limitation Act, 1963, or Orderxxii, Rule 9 of the Code of Civil
Procedure, 1908, or any other similar provision, should receive a liberal construction so as to advance substantial
justice when no negligence or inaction or want of bona fides is imputable to a party. In a particular case, whether an
explanation furnished would constitute sufficient cause or not will be dependent upon the facts of that case. There
cannot be a straitjacket formula for accepting or rejecting explanation furnished for the delay caused in taking steps.
However, courts should not proceed with the tendency of finding fault with the cause shown and reject the petition
by a slipshod order in over-jubilation of disposal drive. Acceptance of explanation furnished should be the rule and
refusal, an exception. It was further held that by taking a pedantic and hyper-technical view of the matter the
explanation furnished should not be rejected when stakes are high and/or arguable points of facts and law are
involved in the case.
Page 2 of 2
60 . For the contexts in which such construction would be required see part III infra.
62 .Siraj-ul-Haq Khan v Sunni Central Board of Wakf, Uttar Pradesh AIR 1959 SC 198 [LNIND 1958 SC 102], p 204.
63 . Salmond, Jurisprudence, tenth edn, pp 172-73.
64 . Maxwell, Interpretation of Statutes, twelfth edn, p 228.
65 . Crawford, Statutory Construction, pp 451-52; Harvard Law Review, vol 33, pp 711-13.
66 . (2002) 3 SCC 195 [LNIND 2002 SC 149].
End of Document
Strict Interpretation
NS Bindra
of Interpretation
Strict Interpretation
The construction of a statute according to its letter is a construction which takes the language used in its literal
sense. When a strict construction is appropriate, the particular case to come within the purview of the statute must
be within both its letter and its spirit and reason. The literal meaning of a statute is that which the words express,
taking them in their natural and ordinary sense, that is, giving to words of common use their commonly accepted
meaning and to technical words their proper technical connotation. The spirit and reason of the law, on the other
hand, is nothing more than the legislative purpose, that is the purpose with which the law was made or the reason
why the legislators enacted the statute. Strict construction of a statute confines its operation to cases which are
clearly within the letter of the law as well as within its spirit and reason. It is not enough that the letter of the law may
include the given situation unless the spirit and reason of the law also include it.67 The framers of a law are
presumed to have in mind a reasonable consistent and intelligible plan or scheme for achievement of the legislative
purpose.According to Sutherland:68
Strict construction refuses to extend the import of words used in a statute so as to embrace (sic) cases or acts which the
words do not clearly describe...Again, it has been stated, By the rule of strict construction...it is not meant that the statute
shall be stringently, or even narrowly construed, but it means that everything shall be excluded from its operation which
does not clearly come within the scope of the language used.
Crawford opined:69
If a statute is to be strictly construed, nothing should be included within the meaning of the language used. Its language
must be given its exact and technical meaning, with on extension no account of implications or equitable considerations; or,
as has been aptly asserted, its operation must be confined to cases coming clearly within the letter of the statute as well as
within its spirit and reason. Or stated perhaps more concisely, it is the close and conservative adherence to the literal or
textual interpretation.
67 .Church of Holy Trinity v United States 243 US 457.
68 .Statutory Construction, third edn, vol 2, p 39.
69 . Pages 449-50.
End of Document
When does the Question of Strict and Liberal Construction Arise?
NS Bindra
of Interpretation
The court can look behind the letter of the law in order to determine the true purpose and effect of an enactment
when the language of the statute, in its ordinary meaning and grammatical construction, leads to a manifest
contradiction of the apparent purpose of the enactment, or some inconvenience, or absurdity, hardship or injustice,
presumably not intended. In such cases, a construction modifying the meaning of the words and even the structure
of a sentence is permissible, and in order to avoid absurdity or incongruity, even grammatical and ordinary sense of
the words can be certain circumstances be avoided.70
According to Sutherland:71
One of the most significant tools of statutory construction is the approach to statutory meaning by the process of liberal or
strict construction. In a general sense strict or liberal construction constitutes an attitude of mind assumed by a judge
confronted with a statute and the problem of applying that statute to particular set of facts. The chief value of the device is
to be found in the fact that it serves as a synoptic expression which recognises the intrinsic and extrinsic aids of
construction, and the inter-relation of those aids to the social and economic problems with which the statute deals.
Crawford in Statutory Construction opined:72
As we have already suggested, one cannot but be impressed with the fact that after all, in most cases, interpretation
generally boils down to the sole problem whether the statute involved shall be strictly or liberally construed, that is, whether
what has been aptly called a determinate shall be included or excluded from the statutes operation. If it is to be included,
then the statute will be liberally construed; if it is to be excluded, then it should be strictly construed. Almost any problem of
interpretation basically involves the judicial attitude. Consequently, the type of construction to which the court will subject a
statute is a most important consideration. Why should a statute be subjected to a strict or a liberal construction as the case
may be? The only answer that can possibly be correct is because the type of construction utilised gives effect to the
legislative intent. Sometimes a liberal construction must be used in order to make the legislative intent effective, and
sometimes such a construction will defeat the intent of the legislature. If this is the proper conception concerning the rule of
construction to be adhered to, then a strict or a liberal construction is simply a means by which the scope of a statute is
extended or restricted in order to convey the legislative meaning. If this is the proper position to be accorded to strict and
liberal constructions, it would make no difference whether the statute involved was penal, criminal, remedial, or in
derogation of common right, as a distinction based on the classification would then mean nothing.73
According to Sutherland,74 a strict or liberal interpretation will depend upon a combination of many factors. Broadly
speaking, a strict or liberal interpretation, according to him, will be made with reference to four different elements.
They are:
(i) With reference to former law
(ii) With reference to the persons and rights affected
(iii) With reference to the letter or language of the statute
(iv) With reference to the purpose and objects of the statute
Liberal Interpretation with Reference to Former Law

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It cannot be said that statutes are enacted usually with a view of bring about reformation or to remove defects in
former laws. Sutherland75 says:
In addition, changing social and economic conditions have often made reference to the older jurisprudence of less value,
with the result that the most responsive interpretative technique is one which recognizes that one of the best sources of
information is the policy of general plan of the legislation itself. And so the courts today are repeating with less frequency
these older rules which rebuked changes in existing laws.
Strict or Liberal Interpretation with Reference to Person and Rights Affected
Sutherland76 stated that the problem of liberal and strict interpretation is that of balancing one interest against the
other; and being such, the function is a judicial one. Crawford77 stated:
Statutes in derogation of sovereignty are strictly construed in favour of the state. Consequently, statutes authorizing suits
against the state, statutes granting exemption from taxation, or statutes vesting sovereign powers in corporations will not
divest the State of any of its sovereign powers or prerogative, unless the law makers clearly reveal an intention to do so.
The Supreme Court has, in Ram Swaroop v Hari Ram,78 ruled that a broad and liberal interpretation should be
given to Section 36 (2)(a) of the Representation of the Peoples Act 1951 in order to give full effect to the
parliamentary intent, observing:
To our mind, according to the scheme for the conduct of elections the candidate should not be qualified or disqualified
when the scrutiny of nomination is taken up by the returning officer for the purpose of finalising the list of nominated
candidates.
With Reference to the Letter or Language of the Statute
The rule of strict construction is not applicable where the meaning of the statue is certain and unambiguous for,
under these circumstance, there is no need for construction. If the language is clear, it is conclusive of the
legislative intent, for the object of all construction is simply to ascertain that intent and, of course, the rule of strict
construction is subordinate thereto.79 The starting point in the construction of legislative enactments is the statute
itself, and so logic favours an analysis of liberal or strict construction on the basis of the language of the statute. But
where the liberal or strict construction is limited to the mere letter of the statute, the possibility is ever present that
the interpreter will fail to penetrate deeply into the general purposes of the statute as gathered from other sources
from which the reason of the statue may best be determined. Statements appear and re-appear in the decisions to
the effect that the rules of strict or liberal interpretation have no application where the language of the statute is
clear. However, it is submitted that a meaning seldom, if ever, is clear and unambiguous when divorced from its
surroundings.80
In ONGC v SAW Pipes Ltd,81 the court was concerned with the scope of judicial powers under Section 34 of the
Arbitration and Conciliation Act, 1996. Section 34 of the Act allowed for challenges to an award passed by the
Arbitral Tribunal. The question before the Court was whether the court would have jurisdiction under Section 34 of
the Act to set aside an award which was patently illegal or in contravention of the provisions of the Act or any other
substantive law governing the parties or was against the terms of the contract. The appellants contended that
where there is clear violation of Sections 28 to 31 of the Act or the terms of the Contract between the parties, the
said award is required to be set aside by the Court under Section 34.The respondents contended that the award
could be set aside mainly on the ground that the same is in conflict with the Public Policy of India which cannot be
interpreted to mean that in case of violation of some provisions of law, the court can set aside the award.The Court
ruled that an award can be set aside if it is against the substantive provisions of law or express terms of the
contract. The Court then considered the meaning of the term public policy of India and noted that the term had not
been defined under the Act and therefore ... the said term is required to be given meaning in context and also
considering the purpose of the section and scheme of the Act. The court rejected reliance on the case of
Renusagar82 which had given a narrow meaning to the term, holding that the term public policy of India was
required to be interpreted in the context of the jurisdiction of the court where the validity of award is challenged
before it becomes final and executable. The concept of enforcement of the award after it becomes final is different
and the jurisdiction of the court at that stage could be limited. The Renusagar case was distinguished on the ground
that the courts jurisdiction was being examined in the event the award becomes final. However, in a case where the
validity of award is challenged before it becomes final there is no necessity of giving a narrower meaning to the
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term public policy of India. On the contrary, wider meaning needs to be given so that the patently illegal award
passed by the arbitral tribunal could be set aside. If the term is given a narrow meaning some of the provisions of
the Arbitration Act would become nugatory. The Court observed:
From this discussion it would be clear that the phrase public policy of India is not required to be given a narrower meaning.
As stated earlier, the said term is susceptible of narrower or wider meaning depending upon the object and purpose of the
legislation. Hence, the award which is passed in contravention of Sections 24, 28 and 31 could be set aside.
With Reference to the Purposes and Objects of the Statutes
In D Nagarathnammal v Ibrahim Sahib,83 the question before the Court was whether the Board of Revenue had the
power to interfere with an order made by the District Collector, under Section 10 (5) of the Madras Hereditary
Village Offices Act, 1895, appointing a deputy to a post registered in the name of a minor. The Court examined the
preamble to the Regulations governing the board of revenue, and observed that the intent behind creating the
regulations, under which the impugned order was passed, was that the powers and authorities entrusted to the said
Board of Revenue in respect of the executive administration of the revenues, should be defined and published.
Hence, as the powers conferred on the Board were limited to administration of revenue, the Court held that neither
the Board of Revenue nor the government had the power to interfere with the order of the District Collector under
Section 10 (5) appointing a deputy to a post-registered in the name of the minor, and hence, the orders of the Board
of Revenue were without were without jurisdiction. The Court observed:
Where a statute takes over and occupies a field previously not regulated by legislation, the rights and powers conferred and
the obligation imposed by the statute must be worked out within the statutory framework. If a statute confers a particular
right and prescribes a particular mode for its enforcement, the enforcement of the right must be sought in that mode.
70 .Jalpu Ram v Dy Commr, Kulu AIR 1966 Punj 148, (1965) ILR 2 Punj 761.
71 .Statutory Construction, third edn, vol 3, art 5501, pp 33-34.
72 . Page 453.
73 . Crawford, Statutory Construction, 1940, p 454; quoted with approval in Subba Rao v commr of Income-tax, Madras
AIR 1956 SC 604 [LNIND 1956 SC 49], 609-10; Maharaja Book Depot v State of Gujarat AIR 1979 SC 180 [LNIND
1978 SC 301], 184.
74 .Statutory Construction, third edn, vol 3, p 34.
75 .Statutory Constructin, third edn, vol 3, p 36.
76 . Sutherland Statutory Construction third edn, vol 3, p 39.
77 . Id at page 477-78.
78 .(1983) All LJ 686 SC.
80 . Sutherland, Statutory Construction, third edn, vol 3, p 40.
81 . (2003) 5 SCC 705 [LNIND 2003 SC 444].
82 . (1994) Supp 1 SCC 644.
83 . AIR 1955 Mad 305 [LNIND 1954 MAD 252].
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Non-Interpretive Considerations
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of Interpretation
Reasonableness
In Union of India v West Coast Paper Mills Ltd,84 the Supreme Court held that despite the rigours of the Limitation
Act 1963, it should be construed in a broad-based and liberal manner. This ruling of the Supreme Court arose in the
following circumstance. After the complaint of the respondents were dismissed by the Railway Rates Tribunal, they
filed a Special Leave Petition and thereafter a Writ Petition (both of which were dismissed). A suit was subsequently
filed. It was contended by the appellants that the said suits of the respondents were barred by limitation. This was
because the cause of action for filing the suit arose immediately after the judgment was passed by the tribunal on
18 April 1966. The State argued that according to Article 58 of the Limitation Act, 1963, the appellants could have
filed their suit within a period of three years from the said date. Instead, they preferred to file a Special Leave
Petition. Since no stay had been granted by the apex court hence the period during which the matter was pending
before it could not be excluded in computing the period of limitation.
The Supreme Court dispelled this contention and held that since it had granted Special Leave to Appeal in favour of
the appellants and passed a limited interim order, the judgment of the Tribunal was in jeopardy and could not have
attained finality. When the doctrine of merger applies, the period of limitation would begin to run from the date of
passing of the appellate decree and not from the date of passing of the original decree and therefore the
respondents were entitled to the benefits of Sections Section 14 and 15 of the Limitation Act, 1963.
In Tirath Singh v Bachitor Singh,85 while interpreting Section 99 of the Representation of the People Act, 1951, the
Supreme Court laid down that where the language of a statute in its ordinary meaning and grammatical construction
leads to a manifest contradiction of the apparent purpose of the enactment or to some inconvenience or absurdity,
hardship or injustice, presumably not intended, a construction may be put upon it which modified the meaning of the
words and even the structure of the sentence.
Two Possible Interpretations
Whenever the language of the legislature admits of two constructions and, if construed in one way, would lead to
obvious injustice, the courts act upon the view that such a result could not have been intended, unless the intention
had been manifested in express words.86 Again, out of the two interpretations, that which ends in the furtherance
of the object of the statute should be preferred to the one that would frustrate it.87 Courts have settled that in the
course of interpretation, if the Court is faced 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 to be rejected which will
introduce uncertainty, friction or confusion with the working of the system.88 In Birch v Wigan Corporation,89
Denning LJ. observed:
Where there is a fair choice between a literal interpretation and a reasonable one-and there usually is-we should always
choose the reasonable one.
In Co-op Central Bank Ltd v Mulchand Hirasa Parwar,90Section 149 (2) of the Berar Land Revenue Code, 1928,
spoke of an encumbrance imposed on the immovable property by any person other than the purchaser. The Court
held that the word imposed must be construed liberally so as to give a logical or rational meaning and the
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description of the person, who would be bound by a prior mortgage, included not only the predecessor-in-interest
who actually imposes the encumbrance on the property but also the successor-in-interest.
In Usman Habib v State of Bombay,91 the Court considered Section 42 (1) of the Bombay Industrial Relations Act,
1946, which was open to two interpretations. One was that notice must be given to the employee himself and the
representative union merely acts as post office and forwards the notice to the employee. The other interpretation
that was possible was that the notice is to be given by the employee in the name of the representative union; the
notice was to be given by the employee in the name of the representative union; the notice was to be forwarded to
the employee by the representative union itself and it is made incumbent upon the representative union also to
forward a copy of the notice to the various authorities mentioned in the sub-section. The Court held that the second
construction is the more reasonable construction. To arrive at this decision, the Court relied on other provisions of
the Act to hold that that the right to give notice of change under Section 42 (2) was not conferred upon the individual
employees but was conferred upon the representative union.
In Dominion of India v Manindra Land and Bldg Corpn,92 the Court held that ordinances were enactment because
of emergencies, yet reasonable construction must always be applied whether provisions contained in the rules
subsequently issued have been followed or not. Under Rule 5 of the the High Denomination Bank Notes
(Demonetisation) Ordinance, 1946, notes received up to 15 January 1946, would be exchanged provided the bank
received such notes in good faith and without the knowledge of the ordinance. The respondent contended that it did
not have any idea of the rules which were going to be framed and which were actually framed about two weeks
after the promulgation of the Ordinance on 13 January 1946. It was held that though there may be slight deviations
as between rules to be strictly interpreted, but if the different statements filed by the respondent are taken into
account, there was no doubt that there was sufficient compliance with them.
84 . (2004) 2 SCC 747 [LNIND 2004 SC 264].
85 . AIR 1955 SC 830 [LNIND 1955 SC 53].
86 .R v Skeen 28 LJMC 91 per Lord Campbell; Jhagru Tewri v State of West Bengal AIR 1959 Cal 176 [LNIND 1958 CAL
212], p 171; Jai Kishan v Income- tex Officer AIR 1960 All 19.
87 .SN Roy v Geeta Mazumdar 1978 BLJ 182.
88 .Collector of Customs v Digvijayinhji Mills [1962] 1 SCR 896 [LNIND 1961 SC 172], p 899; Kesvananda Bharati v State
of Kerala AIR 1973 SC 1461 [LNIND 1973 SC 154], per SCJ Khanna and Chandrachud JJ.
89 . [1953] 1 QBD 136 , p 142.
90 . AIR 1954 Nag 43.
91 . AIR 1955 Bom 177, pp 179 and 80.
92 . AIR 1954 Cal 174 [LNIND 1952 CAL 180], p 178.
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Presumption of Fairness and Hardship
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of Interpretation
Presumption of Fairness
Where there are two constructions, the one of which will do great and unnecessary injustice, and the other of which
will avoid that injustice, and will keep exactly within the purpose for which the statute was passed, it is the
bounden duty of the court to adopt the second and not to adopt the first of those constructions.1 If the legislature
does not carry out its object by giving appropriate expression to it by using adequate language for the purpose, the
court would not violate the canons of construction merely for the purpose of assisting the legislature for a supposed
object which it might have.2 It is a legitimate method of construction to give an Act a liberal meaning if that can be
done reasonably. Too literal a construction should not be followed when it leads to an absurdity if a somewhat more
liberal construction would lead to an effective application of the Act.3 The underlying purpose of all legislation is to
promote justice among men. The object and effect of the statute should be primary concern in the interpretation of
statutes. The equities of the controversy should be the tilting factor. It has been wisely stated that the construction
of statutes is eminently a practical science. As a result too much reliance upon various maxims and principles of
interpretation may defeat the legislative intention rather than assist in its ascertainment and effectuation. Similarly,
reliance upon precedents will not necessarily assure the discovery of the legislative intent...The (construction) which
operates in a harsh, unreasonable and absurd manner certainly does not represent the legislative intent because it
must be presumed that legislature has acted for the welfare of the people. Therefore, the court should strive to
avoid a construction which will render the statute unjust and oppressive or unreasonable or contrary to public
interest.4 Brett LJ. observed in Ex p Corbett:5
I think also that there is a general rule of construction of statutes which is applicable to this matter, namely, that unless you
are obliged to do so, you must not suppose that the legislature intended to do a palpable injustice.
A full Bench of the Allahabad High Court in Maikoo Lal v Santoo,6 agreed with the principle enunciated by
Maxwell:7
In determining either the general object of the legislature, or the meaning of its language in any particular passage, it is
obvious that the intention which appears to be most in accord with convenience, reason, justice and legal principles should,
in all cases of doubtful significance, be presumed to be the true one.
In King-Emperor v Bhusen Sarkar,8 the commissioner of income-tax sought to tax the income of the assessee
arising out of jalkars subject to permanent settlement, alleging that such income was included in the term other
sources in Section 6 of the Income Tax Act, 1961. Cumming J. repelled the contention of the commissioner of
income-tax, and held:
But where there is the case where the particular enactment is particular in the sense that it protects the right, the property,
the privileges of a particular person, or class of persons the reasons for the rule which has been acted upon is exceedingly
plain and strong. It would be very unjust or I would rather say unfair (I do not go further than that) to pass an enactment
taking away from a particular person, or class of persons his or their rights without hearing what he or they have got to say
about it; and if general words were to have the effect of taking away the rights of a particular person or class, which had
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been given to them before and, it would be done without their having any knowledge or opportunity of resisting it and it is
not to be impugned to the legislature or to be supposed that the legislature would do what was unfair.
Course Taken by the Courts if Hardship is Pleaded
A plea for consideration of hardship is irrelevant in construing a special statute providing for limitation. A special
statute providing for special or no period of limitation must receive a liberal and broad construction and not a rigid or
a narrow one. The intent and purport of the Parliament enacting the said Act must be given its full effect.9 When the
words of an enactment are clear and imperative, considerations of inconvenience or hardship have no place in its
application to circumstances falling within the words. But where there is no express indication in an enactment as to
whether the powers given by it were meant to be used in particular circumstances, the fact that great hardship and
inconvenience would result thereby is a reason for so construing the words as to meet all attempts to abuse the
power either by exercising them in cases not intended by the statute or by refusing to exercise them when the
occasion for their exercise has arisen.10 When the words of a statute are clear, it is not within the province of a
court, simply with a view to avoid apparent anomalies, to put such an interpretation on the words as they are
incapable of bearing.
In Manik Lal Majumdar v Gouranga Chandra Dey,11 the Court was required to consider whether a tenant could
pursue his right to appeal under the Tripura Buildings (Lease and Rent Control) Act,1975, without clearing arrears.
Two interpretations were put forward on the issue. One whereby the tenant was required to clear all his arrears
before moving the Court and the other whether the petitioner tenant could prefer the appeal but could not obtain an
order on the preferred appeal without depositing the rent arrears. The court preferred the second interpretation
because in the opinion of the Court, the first interpretation would cause hardship to the tenant.
In Indian Agencies v Additional Commissioner of Commercial Taxes, Bangalore,12 Rule 6 of the Central Sales Tax
(Karnataka) Rules, 1957, provided that in order to avail of certain concessions, Form C of the rules have to be
submitted in the original to the relevant authorities. The appellants submitted the duplicate form in lieu of the
original. They contended that it was a mere technical requirement and that the concession should not be denied to
them.
The court observed that it was not a mere technical requirement. It was intended to serve the object of preventing
the forms being misused for the commission of fraud or collision with a view to evade payment of taxes. Further the
court observed that taxing statutes are to be strictly construed and strictly adhered to. It observed that a liberal
construction was not justified having regard to the scheme of the Act and the rules in this regard and if there was
any hardship, it was for the legislature to take appropriate action to make suitable provisions in that regard. It is also
settled rule of interpretation that where the statute is penal in character, it must be strictly construed and followed.
The court further sympathised with the honest tax payer and observed that the Section and the Rules as they stand
may conceivably cause hardship to an honest person. He may have lost the declaration forms by accident and yet
he will be penalised for something for which he is not responsible. But it is for the legislature or for the rule making
authority to intervene to soften the rigour of the provisions and it is not for this court to do so where the provisions
are clear, categorical and unambiguous.
In Chiman Lal Bhagwait Rai v Moti Ram,13 the Court held that grounds of hardship or the like, when the language
used in a statute is plain, cannot be taken into consideration in the interpretation of the same. Hence, the Court held
that revision proceedings under Section 115 of the Civil Procedure Code, 1908 against an interlocutory order made
in the course of the trial of a suit or other proceeding would be considered as a decision made by the Court, and the
order of the Court in revision proceedings could only be challenged in appeal under Section 105 (1) of the Act.
In Jagmohan Goenka v KD Banerjee,14 the Court had to decide the operation of the time limit specified in Section
34, Income Tax Act, 1961 to challenge an assessment order. The assessee argued that the time limit did not mean
that the provision could only be invoked once, and such an interpretation would cause undue hardship to the
assessee. The Court agreed with the assessee and held that while Section 34 imposes a time limit, but within this
time limit, there was no restriction imposed as to the number of proceedings that can be taken to reopen the
assessment whether by way of assessment of reassessment, computation or recompilation. The Court held that
accepting the interpretation of the revenue authorities would lead to too much hardship on the part of the assessee.
In Rajkumar Mills v Inspector, PWMB,15 the matter before the Court was whether remuneration would be paid to
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workers on the basis of rates published under Section 26 of the Act, or could the authority appointed under Section
15 of the Act entertain disputes regarding wages. Section 26 read as follows:
In particular and without prejudice to the generality of the foregoing power, rules made under sub-section-(b)
require the display in a conspicuous place on premises where employment is carried on of notices specifying rates
of wages payable to persons employed on such premises.
The Court held that it was not for it to extend the scope of Act on the ground of convenience when the language of
the law was clear beyond doubt. Under the rules framed under Section 26 of the Payment of Wages Act 1926, it
was obligatory for every factory owner to display a notice specifying rates of wages payable to all persons
employed in that factory. There was nothing in the definition of wages from which it could be inferred that a dispute
regarding wages could be determined by the authority appointed under Section 15 of the Act. Hence, the Court held
that the authority had no power to adjudicate disputes, and even if this caused hardship to those who were parties
to pending disputes, the Court could not read in a power where there existed none.
1 .Hill v East and West India Dock Co [1884] 9 AC 448 , p 456, per Earl Cairns; Railton v Wood [1809] 15 AC 363-67.
It has been observed:
If an enactment is such that by reading it in its ordinary sense you produce a palpable injustice, whereas by reading it in a
sense which it can bear although not exactly its ordinary sense, it will produce no injustice, then I admit one must
always assume that the legislature intended that it should be so read as to produce no injustice.
Per Brett MR, in Queen v Oversees of Tonbridge [1884] 13 QBD 339, p 342.
2 .DN Cooper v Shivax Cowasji AIR 1949 Bom 131, p 134.
3 .United Commercial Press Ltd v Satyanarain Chamaria AIR 1953 Cal 136 [LNIND 1952 CAL 4]: (1952) 56 CWN 346.
4 .Gorla Suryanarayana Naidu v Andhra Pradesh (1978) 2 APLJ 187, per P Chennakesai Reddy J.
5 . [1880] 14 Ch D 122, p 129; Banwari Gope v Emperor AIR 1943 Pat 18, p 20: upon this presumption is based the rule
against retrospective operation of statutes affecting vested rights; Bannerjee, Interpretation of Deeds, Wills and
Statutes, pp 195-99.
6 . AIR 1936 All 576, p 578.
7 . Maxwell, Interpretation of Statutes; ninth edn, p 198 (now eleventh edn, p 183).
8 . AIR 1926 Cal 819, 821, (1926) ILR 53 Cal 524,.
9 .LS Synthetics Ltd v Fairgrowth Financial Services Ltd, (2004) 11 SCC 456 [LNIND 2004 SC 897].
10 .Gulam Mohd Ali v Corpn of Madras (1952) ILR 52 Mad 866, AIR 1930 Mad 200 [LNIND 1929 MAD 67], p 205;
Quoting Maxwell, Interpretation of Statues, eleventh edn, pp 116-17; Rameshwar Deva v District Magistrate AIR 1960
All 399.
11 . (2005) 2 SCC 400 [LNIND 2005 SC 39].
12 . (2005) 2 SCC 129 [LNIND 2004 SC 1251].
13 . AIR 1953 Pepsu 113.
14 . AIR 1954 Cal 564 [LNIND 1954 CAL 38]; Oriental Govt Security Life Assurance Co Ltd v Dinabandhu Mihra AIR 1954
Ori 54.
15 . AIR 1955 MB 60.
End of Document
Conclusion
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of Interpretation
Conclusion
The varied rules of interpretation show that the decision whether the language is plain or not is also determined by
the Courts and hence they need rules for both when language is and is not plain; as well the mechanisms by which
the object of the statute is to be determined. The chapter also shows that despite the continued primacy accorded
to the text and its meaning, non-interpretative considerations like reasonableness; fairness and justice also
influence the rule of interpretation employed by the Courts.
End of Document
NS Bindra
Edition > PART II TECHNIQUES, TOOLS AND RULES OF INTERPRETATION > Chapter 7 Internal
Aids
Chapter 7 Internal Aids

Chapter 7Internal Aids
End of Document
Introduction
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Aids
Introduction
Words are the skin of language. Language gives its own meaning and interpretation of the law. It does so by
employing appropriate phraseology to attain the object that legislative policy seeks to achieve.1 For instance, where
no meaning can be given to certain words of a statute without rejecting some others that are used in it, or where a
statute would become nullity were all the words retained, the court has the power to read a section as though the
words which would make it meaningless or nullify it, were not there.2 When the language of the statute is plain and
unambiguous it would not be open to the courts to adopt a hypothetical construction on the ground that such a
construction is more consistent with the alleged object and policy of the Act. But where such a plain reading leads
to anomalies, injustices and absurdities, the court may look into the purpose for which the statute was enacted and
try to interpret it so as to adhere to the purpose of the statute. If words are to be added by the court in order to
repair an omission in the Act, it should be possible to state with certainty that these words would have been inserted
by the draftsman and approved by the legislature had their attention been drawn to the omission before the Bill had
passed into a law.3 The principle is equally applicable in the case of different parts of a single section and none the
less when the latter part is introduced by the words provided that or such like words.4 As Lord Maugham said: The
true principle undoubtedly is, that the sound interpretation and meaning of the statute on a view of the enacting
clause, saving clause and the proviso taken and construed together, is to prevail.5
The internal aids to interpretation are definitions,6 exceptions, explanation,7 functions, deeming provisions,8
heading, marginal notes,9 preamble,10 provisos,11 punctuations,12 saving clauses, non-obstante clauses,
schedules13 etc.14 However, the notings on the files of various officials do not fall in the category of internal aids,
as pointed out by the Supreme Court in Doypack Systems Pvt Ltd v Union of India,15Orissa Cement Ltd v Union of
India16 and Modi Industries Ltd v State of Uttar Pradesh.17
1 .Pannala Bansilal Pitti v State of Andhra Pradesh (1996) 2 SCC 498 [LNIND 1996 SC 119].
2 .Pahlumal v Naraindas AIR 1933 Sind 151(2), 154; In order to prevent absurdity we must read the word surrendered in
a qualified sense, said Lush J, in ex p St Sepulchres [1881] 17 Ch D 746, p 757.
3 .Lalit Mohan Pandey v Pooran Singh, (2004) 6 SCC 626 [LNIND 2004 SC 569].
4 .Gangamoyee Dey v Manindra Chandra AIR 1950 Cal 225 [LNIND 1949 CAL 29]; Anand Nivas Pvt Ltd v Anandji
Kalanji Pedhi AIR 1965 SC 414 [LNIND 1963 SC 213], (1965) 1 SCA 172 [LNIND 1963 SC 213].
5 .Jenning v Kelly [1940] AC 206; Gangamoyee Dey v Manindra Chandra AIR 1950 Cal 225 [LNIND 1949 CAL 29], p
227.
6 . On the onus of proving that a statutory definition does not apply see Indian City Properties v Municipal Commissioner
of Greater Bombay (2005) 6 SCC 417 [LNIND 2005 SC 590]; and on the nature of terminology which makes for an
exhaustive definition see also Commissioner of Trade Tax v Kajaria Ceramics Ltd (2005) 11 SCC 149 [LNIND 2005 SC
521].
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Introduction
7 . On the scope of an explanation see Vidushi Wires Pvt ltd v Union of India (2003) Mah LJ 1015 and BR Ambedkar (Dr)
v Union of India 2005 (1) Karlj 576 [LNIND 2004 KANT 441]; Sedco Forex International Drill v CIT Dehradun (2005) 12
SCC 717 [LNIND 2005 SC 907]. For a more elaborate discussion refer to chap 2.
8 . For a detailed discussion refer to chap 2. See also Clariant International v Securities and Exchange Board of India
(2004) 8 SCC 524 [LNIND 2004 SC 852]; CCT Ranchi v Swarn Rekha Cokes and Coals Pvt Ltd (2004) 6 SCC 689
[LNIND 2004 SC 643]; State of West Bengal v Sadan K Bormal (2004) 6 SCC 59 [LNIND 2004 SC 585].
9 . See also recent high court decisions R Krishnaiah v State of AP AIR 2005 AP 10; CP Singhania v Garware Club
House (2004) 1 Mah LJ 212.For a discussion on recent Supreme Court decisions refer to chap 2.
10 . On the significance of Preables see Munna v Union of India (2005) 7 SCC 417 [LNIND 2005 SC 701]; State of
Rajasthan v Basant Nahata (2005) 12 SCC 77 [LNIND 2005 SC 681]; HN Shankara Sastry v Asstt Director Agriculture
Karnatak (2004) 6 SCC 230 [LNIND 2004 SC 633]. For details refer to chap 2.
11 . See also recent decisions dealing with the significance of Provisos see Laxminarayan Bhattad v State of Maharashtra
(2003) 5 SCC 413 [LNIND 2003 SC 401]; ALI MK v State of Kerala (2003) 11 SCC 632 [LNIND 2003 SC 463]; Haryana
State Cooperative Land Development Bank Ltd v Haryana State Cooperative Land Development Banks Employees
Union (2004) 1 SCC 574 [LNIND 2003 SC 1127]; MP Cement Manufactures Association v State of MP (2004) 2 SCC
249; Secretary, Department of Excise and Commercial Taxes v Sun Bright Marketing Ltd (2004) 3 SCC 185 [LNIND
2004 SC 204]; Maulvi Hussein Haji Umarji v State of Gujarat (2004) 6 SCC 672 [LNIND 2004 SC 1560]; Union of India
v Sanjay Kumar Jain (2004) 6 SCC 70. For a more elaborate discussion on provisos refer to Chap 2.
12 . See also for recent exposition on the significance of the semicolon in Entry 11A of List III- Jamshed N Guzdar v State
of Maharashtra (2005) 2 SCC 591 [LNIND 2005 SC 33]; State of Orissa v Joginder Paritoshi (2004) 9 SCC 591 on the
role that punctuation has to play in modern statutes. For a more detailed treatment on the significance of Punctuation
refer to chapter 2.
13 . On the significance of schedules and how they have come to be employed in modern enactments see Siddiq Ali
(Mohd) v Shahsun Finance Ltd AIR 2005 AP 274.
14 . Cross-reference to parts of a statute.
15 . AIR 1988 SC 782 [LNIND 1988 SC 589], 1988 (1) JT 304 [LNIND 1988 SC 589].
16 . AIR 1993 Ori 17.
17 . (1994) 1 SCC 159 [LNIND 1993 SC 879].
End of Document
Context
NS Bindra
Aids
Context
It is one of the cardinal principles of the interpretation of statutes that, where the language is plain and
unambiguous, and admits of but one meaning, the courts must give effect to it according to its plain meaning.
Courts are not justified in departing from such text even though serious anomalies result or what the court
conceives to have been the intention of the legislature, is not carried out. It is, however, equally well-settled that the
meaning of the words used in any portion of the statute must depend upon the context in which they are placed.
Moreover, in interpreting an enactment, all its parts must be construed together as forming one whole and it is not in
accordance with sound principles of construction to consider one section, or group of sections, divorced from the
rest of the statute. Further, so far as possible, that construction must be placed upon words used in any part of the
statute which makes them consistent with remaining provisions and with the intention of the legislature to be
derived from a consideration of the enactment. The words may be given a wider or more restricted meaning than
they ordinarily bear, if the context requires it.18 In construing a particular section of an Act, one must look at the
whole Act, and it is necessary to consider the context in which such section occurs.19 When words in different
sections of the same statute, enacted for similar purpose, are susceptible of a possibly different construction, one
which is approved by considerations derived from the policy of the law has to be adopted.20
In Union of India v Elphinstone Spg & Wvg Co Ltd,21 the Supreme Court observed as follows:
General words of a particular provision of a statute may be given a restrictive meaning if the context requires it. By context
is meant not only the textual context arising out of the other provisions of the statute, but also factual context including the
mischief to be remedied, and the circumstances under which the statute was passed. Context refers to the statute as a
whole the previous state of law, other statutes in pari materia, the general scope of the statute and the mischief that it was
intended to remedy.
It is no sound principle of construction to interpret expressions used in one Act with reference to their use in another
Act. The meaning of words and expressions used in an Act must take their colour from the context in which they
appear.22 Rules of grammar cannot be treated as inflexible and invariable standards which ought to be applied in
every case without any heed to the context in which the provision occurs. If the context definitely suggests that the
relevant rule of grammar is inapplicable, then the requirement of the context must prevail over the rule of
grammar.23 It is well-settled that the language of a statute constitutes the depository or reservoir of legislative
intent, and in order to grasp its true meaning it is necessary to consider a sentence in its entirety. Meaning of
certain words used in a section may be construed by attending to such other provisions of the statute as may tend
to throw light upon them. This is a principle based upon human experience with mans mode of expression and the
inevitable limitations of language.24
Every statute must be construed ex vigoenibus actus, that is, within the four corners of the Act. When the court is
called upon to construe the term of any provision found in a statute, the court should not confine its attention only to
the particular provision which falls for consideration. The court should also consider other parts of the statute which
throw light on the intention of the legislature and serve to show that the particular provision ought not to be
construed as if it stood alone and part from the rest of the statute.
In Jagir Singh v State of Bihar,25 the Supreme Court held as follows:

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Context
The general rule of construction is not only to look at the words but to look at the context, the collocation and the object of
such words relating to such matter and interpret the meaning according to what would appear to be the meaning intended
to be conveyed by the use of the words under the circumstances. Sometimes definition clauses create qualification by
expressions like unless the context otherwise requires; or unless the contrary intention appears; or if not inconsistent with
the context or subject-matter.
These qualifications in the view of the Court need to be so used that the legislative objective is achieved and not
defeated.
In Colquhoun v Brookes,26 Lord Herschel said:
It is beyond dispute too, that we are entitled and indeed bound when construing the terms of any provision found in a
statute to consider any other parts of the Act which throw light upon the intention of the legislature and which may serve to
show that the particular provisions ought not to be construed as it would be if considered alone and apart from the rest of
the Act.
Lord Wright observed in James v Commonwealth of Australia:27
The ultimate result must be determined upon the actual words used not in vacuo but as occurring in a single complex
instrument in which one part may throw light on the other. This has been described as the federal compact and the
construction must hold a balance between all its parts.
Every statute must be construed ex visceribus actus, ie, within four corners of the Act. Lord Coke observed in the
Lincoln College case that a good expositor of an Act must undertake the task of construction considering all parts
together and not one part only by itself. Hence, every effort should be made to find such a meaning that will give
operation and effect to every part and provision of the enactment.
In Whirlpool Corporation v Registrar of Trade Marks, Mumbai & Others,28 it was held that under the provisions of
Trade and Merchandise Marks Act, 1958, both the Registrar of Trade Marks and the High Court can act as Tribunal
depending upon the context. The Court was guided in this interpretation by the fact that the definition of tribunal in
Section 2, was presaged by the phraseunless the context otherwise requires. The definition the Court held could
not be read in isolation. The Court pointed out that
The phrase unless the context otherwise requires is meant to prevent a person from falling into the whirlpool of definitions
and not to look to other provisions of the Act which necessarily, has to be done as the meaning ascribed in a definition can
be adopted only if the context does not otherwise require.
The issue before the apex court was whether both the High Court and the Registrar could be deemed to be
Tribunals under the Act. The apex court responded to the query by pointing out that neither, the High Court nor the
Registrar of Trade Marks, on their own, were tribunalsunder Section 2 (1)(x) of the Trade and Merchandise Marks
Act, 1958. The expression before which the proceeding concerned is pending, occurring in Section 2 (1)(x)
conveyed the idea that if proceedings were pending before the Registrar, then the Registrar was the tribunal.
Similarly, if the proceeding was pending before the High Court, then the High Court had to be treated as the
tribunal. Hence, the Court held that the jurisdiction of the Registrar and the High Court, though apparently
concurrent in certain matters, was mutually exclusive in others. The Court observed that if the definition clause
qualifies the definition by the expressionunless there be something repugnant to the subject or context, then the
onus on proving such exclusion was on the person alleging such exclusion.29
Section to be Read as a Whole
As a general rule, a single section, which is capable of more than one construction in the light of the words
employed in it, ought not to be interpreted singularly and without reference to other parts of the enactment.30
In Commr of Income-tax, Calcutta v Rajendra Prasad Moody,31 the Court was confronted with the construction of
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Context
Section 57 of Income Tax Act, 1961. The controversy was whether interest on money borrowed for investment in
shares which had not yielded any dividend was admissible as a deduction under Section 57 (iii) from income from
other sources. Where the language of a section [s 57 (iii) of the Income Tax Act 1961], is clear and unambiguous, it
has to be construed according to its plain and natural meaning. Merely because slightly wider phraseology is
employed in another section, which may take in something more, does not require that the first section should be
given a narrow and constricted meaning which is not warranted by the language of the section and in fact, contrary
to such language.
Phrase to be taken as a Whole
As a general rule, relative and qualifying words or clauses in a statute are to be referred to the next preceding
antecedent, unless the evident sense and meaning of the enactment requires a different construction.32 This
grammatical rule is limited in its application to cases when there is ambiguity or doubt on the face of the statute, and
should be utilised only when its application is consistent with the apparent and rational interpretation of the Act.
When general words occur at the end of a sentence, they usually refer to and qualify the whole sentence and not
merely the last preceding antecedent. If, however, such words occur in the middle, they are generally held not to
extend to that which follows. The meaning of an ordinary word of English language is not a question of law. The
proper construction of a statute is a question of law. If the context shows that a word is used in an unusual sense,
the court will determine what that unusual sense is.33 In Robertson v Day,34 the Privy Council, held:
It is a legitimate rule of construction to construe word in an Act of Parliament with reference to words found in immediate
connection with them.
In Central Bank of India v Ravindra,35 the Court held as follows:
Ordinarily, a word or expression used at several places in one enactment should be assigned the same meaning so as to
avoid a head-on-clash between two meaning assigned to the same word or expression occurring at two places in the same
enactment. However, it is possible to find a situation when the same word or expression may have a somewhat different
meaning at different places depending on the subject or context. This is however an exception which can be resorted to
only in the event of repugnancy in the subject of context being spelled out.
In Sulochana v State Registrar of Chits (Investigation and Prosecution), Madras,36 the Court had to consider the
ambit of Sections 468 and 473 of Code of Criminal Procedure, 1973, and decide whether the Registrar of Chits was
a person aggrieved by offence as envisaged under Section 469 (1)(b). The Court held as follows:
It is a well known rule of law that words or phrases occurring in different sections of an enactment should be given the
same meaning unless there is clear indication in the statute itself to show that the Legislature had used the words and
phrases in different sections with differing meanings or where a uniform construction of the words and phrases will lead to
absurd conclusions and results. Applying this formula, the Registrar cannot be termed a person aggrieved by the
commission of the offences by the petitioner.
However, in Manik Lal Majumdar v Gouranga Chandra Dey, the Court observed:37
The presumption that the legislature uses the same word in different parts of the statute with the same meaning is a weak
presumption and can be displaced by context. Even when the same word is used at different places in the same clause in
the same section, it may not bear the same meaning at each place having regard to the context of its use. The same words
used in different statutes on the same subject are interpreted to have the same meaning.
It has been said that if a statutory meaning is attached to certain words in a prior Act, there is a presumption of
some force that the legislature intended that they should have the same significance when used in a subsequent
Act in relation to the same subject matter.38 It is well established that in order to interpret a term in a particular
legislation, its use in the same legislation in another provision is the best clue for interpretation. Hence, in Bhagirath
v State of Madhya Pradesh,39 the Court held that the use of the term or in Section 397 of the Code of Criminal
Procedure, 1973, could be safely used as a clue to interpret the word or in Sections 438-39. Relying on this
interpretation, the Court held that it could not be contended that once an application under Section 438 is rejected
by the sessions judge, another application on the same facts and for the same offence could not be made to the
Page 4 of 5
Context
High Court. Similarly, inState of Bombay v Nagindas Maneklal,40 the word tenement was given the same meaning
in both the provisos 2 and 4 to Section 22 of the Bombay Finance Act,1932, due to which the word tenement in the
second proviso was held to mean a house, apartment, suite of rooms or a room which is separately owned or which
is occupied as a separate unit.
18 .Gurcharn Lal v Shiva Narain AIR 1948 Oudh 162; Kedar Nath v Pearey Lal AIR 1932 Oudh 152, (1932) ILR 7 Luck
618; Emperor v Jinand AIR 1928 Sind 149; Buddhan Singh v Nabi Bux AIR 1962 All 48, (1962) ILR 2 All 321, 1961 All
LJ 536, 1961 AWR 452 (HC): words having narrow as well as a broad sense; Ambikalal Das v Abhinandan Prasad AIR
1964 Pat 90, (1963) BLJR 192; Kushilal v Board of Revenue AIR 1967 MP 201 [LNIND 1967 MP 22], p 203: widest
possible interpretation unless context otherwise directs: occupant includes a muafidar.
19 .Muthammal v Secy of State 19 IC 68 (Mad): (1913) 24 MLJ 405 [LNIND 1913 MAD 41]; Banshidhar Mohanty v
Gourgopal Das (1982) 53 Cut LT 564.
20
.Abdul Latif v Jawahar State AIR 1940 Bom 172, p 177, (1940) ILR Bom 225: the presumption that identical words used
in different parts of the same statute are intended to have the same meaning yields readily to the controlling force of the
circumstances that the words are found in such dissimilar connection as to warrant the conclusion that they were
employed in the different parts of the Act with different intent; Helvering v Stockholmes Bank 293 US 84, 79 L Ed 211;
Atlantic Cleaners and Dyers v United State 286 US 427, p 433, 76 L Ed 1204, p 1207: The presumption is not rigid and
readily yield wherever there is such variation in the connection in which the words are used as reasonably to warrant
the conclusion that they were employed in different parts of the Act with different intent. Where
the subject-matter to which the words refer is not the same in the several places where they are used or the conditions
are different, or the scope of legislative power exercised in one case is broader than that exercised in another, the
meaning will vary to meet the purpose of the law to be arrived at by a consideration of the language in which these
purposes are expressed and of the circumstances under which the language was employed. It is not unusual for the
same word to be used with different meanings in the same Act and there is no rule of statutory construction which
precludes the courts from giving to the word the meaning which the legislature intended it should have in each instance.
Thus, for example, the meaning of the word legislature used several times in the Federal Constitution differs according
to the connection in which it is employed, depending upon the character of the function which that body in each
instance is called upon to exercise.
21 . (2001) 4 SCC 139 [LNIND 2001 SC 2915].
22 .Ram Narain v State of Uttar Pradesh AIR 1957 SC 13 [LNIND 1956 SC 66], p 23; Keasavan Govindan v
Janardhananan Damodara Plappalli (1958) Ker LT 449, (1958) Ker LJ 585; Devi Prasad v Board of Revenue 1960 Jab
LJ 779, 1960 MPC 605; Raghunath Singh v Gamugabai 196 Jab LJ 996, (1961) MP LJ 398: context not only relevant
but may at times be conclusive; Bashiruddin v Distict Judges, Bulandshahar(1978) All LJ 82; P Mariappa v State of
Tamil Nadu (1990) 2 MLW 655 (Mad).
23 .Regional Provident Fund Commr, Bombay v Shree Krishna Metal Mfg Co AIR 1962 SC 1536 [LNIND 1962 SC 113], p
1540, 90 CLR 345, p 347, per Dixon J.
24 .Roop K Shorey v State AIR 1967 Punj 42, p 44 D, per SK Kapur J: s 493, Cr PC, construed in the light of s 495 and
vice versa;Romero v International Terminal Operating Co 3 L Ed 2d 368, 375, 358 US 354, per Frankfurther J: words
not as self-contained phrases but with a history and part of a serial.
25 . AIR 1976 SC 997 [LNIND 1975 SC 469].
26 . [1889] 14 AC 493, p 506; Dorothy v Mullick AIR 1958 Pat 240, p 241.
27 . [1936] AC 578, p 613.
28 . (1998) 8 SCC 1 [LNIND 1998 SC 970].
29 .Indian City Properties v Municipal Commissioner of Greater Bombay (2005) 6 SCC 417 [LNIND 2005 SC 590].
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Context
30 .Sukhnandan v Lakhmichand 12 IC 364, p 368; Balasinor Nagrik Co-op Ltd v Babubhai Shankerlal Panchya AIR 1987
SC 849, (1987) JT 462 (SC), Rep (1987) 1 SCC 606, (1987) 1 UJ 379 (SC), (1987) 1 Land LR 521, 1987 Bank J 364,
(1987) 1 Guj LH 423, (1987) 2 Guj LR 715.
31 . AIR 1979 SC 373 [LNIND 1978 SC 278]
32 .Aswini Kumar Ghose v Arabinda Bose AIR 1952 SC 369 [LNIND 1952 SC 94].
33 .Brutus v Cozens (1972) 3 WLR 521 (HL), per Lord Reid, 527, per Lord Morris, 529: insulting behavior.
34 . 5 App Cas 62, p 69; Gibson and Howes Ltd v Lennon 24 CLR 140; on appearl 26 CLR 285.
35 . (2002) 1 SCC 367.
36 . 1978 Crilj 116 [LNIND 1977 MAD 108].
37 . (2004) 12 SCC 448 [LNIND 2004 SC 271].
38 .National Planners v Contributories AIR 1958 Punj 230, p 232; Jagat Ram v Shanti Sarup AIR 1965 Punj 175.
39 . 1983 Jab LJ 30.
40 . AIR 1956 Bom 89 [LNIND 1955 BOM 40].
End of Document
Statement of Objects and Reasons
NS Bindra
Aids
Though the statement of objects and reasons appended to the Bill are not admissible as an aid to the construction
of a statute, it may be referred to for the limited purpose of ascertaining the conditions prevailing at the time the Bill
was introduced41 and the purpose for which the amendment introduced by the Bill in a previous Act was made.42
In addition to the statement of objects and reasons the statement of the minister who has moved the Bill in
Parliament can be looked at to ascertain mischief sought to be remedied by the legislation and the object and
purpose for which the legislation is enacted. The statement of the minister who has moved the Bill in Parliament is
not taken into account for the purpose of interpreting the provisions of the enactment.43 Reference to statement of
objects and reasons attached to a bill at its introduction in the RajyaSabha (or LokSabha) or the circumstances
under which a word or expression came to be deleted are not aids to the construction of the terms of a statute
which have of course to be given their plain and grammatical meaning. It is only when the term of the statute are
ambiguous or vague that resort may be had to them for the purpose of arriving at the true intention of the
legislature.44 The statement of objects and reasons may not be used for the purpose of construing the meaning of
a particular word in an enactment, yet it can be referred to, for the 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 the
evil which is sought to be remedied.45
Such statement can legitimately be referred to for correct application of the mischief rule.46
In Sushma Sharma v State of Rajasthan,47 the Court observed as follows:
The objects and purposes of the person who initiated the bill are not admissible as aids to construction since it is impossible
to contend that such purposes in the minds of some officials of the government before the matter is discussed by the
cabinet would at all be relevant.
In Ashwini Kumar Ghose v Arabinda Bose,48 the Court had to inter alia consider the object of the Supreme Court
Advocates (Practice in High Courts) Act, 1951, to construe Section 2 of the Act. Both sides relied on the statement
of objects and reasons appended to the Bill to support their contentions.
Patanjali Sastri CJ. did not agree with their reliance on the statement of objects and reasons, and held:
As regards the propriety of the reference to the statement of objects and reasons, it must be remembered that it seeks only
to explain what reasons induced the mover to introduce the Bill in the House and what objects he sought to achieve. But
those objects and reasons may or may not correspond to the objective which the majority of members had in view when
they passed it into law. The Bill may have undergone radical changes during its passage through the House of Houses, and
there is no guarantee that the reasons which led to its introduction and the objects thereby sought to be achieved have
remained the same throughout till the Bill emerges from the House as an Act of the Legislature, for they do not form part of
the Bill and are not voted upon by the members. We, therefore, consider that the statement of objects and reasons
appended to the Bill should be ruled out as an aid to the construction of a statute.
The Supreme Court considered the value of the statement of objects and reasons appended to the final Act in State
of Haryana v Chaman Lal.49 The Court was considering the whether the Haryana Minerals (Vesting of Rights) Act,
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1973 (State Act) could override the provisions of the Mines and Minerals (Regulation and Development) Act, 1957
(Central Act). The respondent argued that the object of the State Act was to acquire land to conserve and develop
mineral resources. Hence, the State Act completely covered the field and the Central Act was overridden. The
Court repelled the contention and observed as follows:
We have to judge the character of the Haryana Act by the substance and effect of its provisions and not merely by the
purpose given in the statement of reasons and objects behind it. Such statements of reasons are relevant when the object
or purpose of an enactment is in dispute or uncertain. They can never override the effect which follows logically from the
explicit and unmistakable language of its substantive provisions. Such effect is the best evidence of intention. A statement
of objects and reasons is not a part of the statute, and, therefore, not even relevant in a case in which the language of the
operative parts of the Act leaves no room whatsoever, as it does not in the Haryana Act, to doubt what was meant by the
legislators.
Hence, the Court held that the object of the Act aside, the provisions of the State Act did not conflict with the Central
Act because the State Act only operated on vesting of land, and did not concern itself with leasehold and mining
rights, which continued to be governed by the Central Act.
In State Banks Staff Union v Union of India,50 the Madras High Court had held that customary bonus was not
payable after an amendment to the State Bank of India Act, 1955. The amendment had come into effect after the
Industrial Tribunal had held that employees of the bank were entitled to customary bonus. The staff of the bank
approached the Supreme Court in appeal against the decision of the Madras High Court. The petitioners contended
that the amendment was unconstitutional since the statement of objects and reasons proved that the enactment
was passed to merely nullify the judicial decision. The statement of objects and reasons of the Amendment read as
follows:
All public sector banks including the State Bank of India come under the purview of the Payment of Bonus Act, 1965, and
the intention is that no bonus other than what is required to be paid under the Payment of Bonus Act, 1965, shall be paid to
the employee of the State Bank of India or of any other pubic sector bank. It is proposed to make express provisions in this
behalf in the State Bank of India Act 1955 and the enactment relating to the other public sector banks. The Bill seeks to
achieve the above objects.
The court upheld the validity of the amendment, and observed as follows:
It is a cardinal rule of interpretation that objects and reasons of a statute is to be looked into as an extrinsic aid to find out
legislative intent only when the meaning of the statute by its ordinary language is obscure or ambiguous. But if the words
used in a statute are clear and unambiguous then the statute itself declares the intention of the legislature and in such a
case, it would not be permissible for a court to interpret the statute by examining the objects and reasons for the statute in
question.
Similar was the stance of the judiciary in Bhaiji v Sub-Divisional Officer Thandla,51 where the Supreme Court held
that the wide scope of transactions covered by the plain language of Section 170-B of the Madhya Pradesh Land
Revenue Code, 1959, could not be scuttled or narrowed down by resort to the statement of objects and reasons.
The statement of objects and reasons has also been viewed as a part of the statutory context and provides
guidance to courts in determining how specific terms should be contextually understood. In Uttar Pradesh State
Electricity Board v Shiv Mohan Singh,52 the court was required to decide on the mandatory import of the word shall
appearing in an enactment. To arrive at this decision the court felt it was necessary to see the context in which the
term appears and the effect thereof. The statement of objects and reasons along with the introductory chapter and
the substantive provisions constituted this context. After examining all of them the court concluded that the
expression shall in this context could not be construed as having mandatory import.
The statement also provides evidence of the intent with which a legislation is introduced. In Madhya Pradesh
Cement Manufacturers Association v State of Madhya Pradesh,53 the court was required to determine the
constitutionality of Section 3 (2) of the Madhya Pradesh Upkaradhiniyam Act, 1981. Section 3 (2) provided for the
levy of cess on electrical energy produced, whether for sale or supply, on the ground that it was beyond the
legislative competence of the state legislature because under Entry 53 of List II the state legislature was only
Page 3 of 5
empowered to impose taxes on the consumption or sale of electricity. The court held that the word whether used in
Section 3 (2) meant that the cess would be levied irrespective of the destination of the electricity produced, and did
not mean that it was a cess on the sale or supply of electricity. The court relied on the object and reasons of the
impugned statute, to strengthen the conclusion that it had reached on the basis of the text of the Act.
In Sushil Kumar Sharma v Union of India,54 the petitioner prayed to declare Section 498A of Indian Penal
Code,1860, to be unconstitutional andultra vires so that innocent persons were not victimised by unscrupulous
persons making false accusations. The court upheld the validity of Section 498A and observed that mere possibility
of abuse could not render a provision unconstitutional. While upholding the section the court held that the object of
the enactment of Section 498A was to curb dowry deaths. The court placed reliance on the statement of objects
and reasons and observed that while deciding upon the constitutionality of a provision, the courts must keep in mind
the object of the enactment and the same can be gleaned from the statement of objects and reasons.
In Rakesh Vij v Raminder Pal,55the appellant sought to rely on the statement of objects and reasons appended to
amendment made in 1956 to the East Punjab Urban Rent Restriction Act, 1949. Repelling this contention, the Court
held that it was not permissible to use the statement of objects and reasons of the amendment to the 1949 Act to
interpret the provisions of the Chandigarh Extension Act,1974. Contrarily, inState of Karnataka v MV
Manjunathegowda,56 the Supreme Court placed reliance upon the statement of object and reasons appended to
the Dowry Prohibition Act, 1961, to interpret Section 304 -B of the IPC and Section 113-B of the Indian Evidence
Act, 1872.
In Arnit Das v State of Bihar,57 the age of a person under the Juvenile Justice Act, 1986 was in question, and the
controversy was whether the delinquents age could be determined by reference to the date of commission of the
offence or by reference to the date of appearance. The Court held that the Act dealt with the post-delinquency stage
of investigation, inquiry, and trial, and so the date of appearance was relevant. To arrive at this decision, the Court
placed reliance on the preamble to the Act and the statement of objects and reasons. On the value of the statement
of objects and reasons, the Court observed as follows:
This exercise would have been avoided if only the Legislature would have taken care not to leave an ambiguity in the
definition of juvenile and would have clearly specified the point of time by reference to which the age was to be determined
to find a person a juvenile. The ambiguity can be resolved by taking into consideration the Preamble and the Statement of
Objects and Reasons, The Preamble suggests what the Act was intended to deal with. If the language used by Parliament
is ambiguous the Court is permitted to look into the preamble for construing the provisions of an Act.
Similarly, in Bakhtawar Trust v M D Narayanan,58 the Supreme Court conceded that the statement of object and
reasons was a useful documentation of the circumstances prevailing at the time of the legislation. At the same time,
the court insisted that the statement of objects and reasons cannot, be the exclusive footing upon which a court of
law nullifies a statute.
In Subhash Ramkumar Bind v State of Maharashtra,59 it was contended in that the weapons used to commit the
offence, i.e. 9 mm. pistol and .38 bore pistol, could not come within the purview of Prohibited Arms under Section 2
(1)(i) of the Arms Act, 1959. The court referred to the statement of objects and reasons of the legislation which
stated that the Act was amendedto provide for deterrent punishment for offences relating to prohibited arms and
ammunition and for the illegal use of firearms and ammunition so as to effectively meet the challenges from the
terrorist and anti-national elements. On the basis of the last line in the statement of objects and reasons, the Court
allowed the appeal and held that the weapons used to commit the offence could not be brought within the
aforementioned definition. In arriving at this decision, the court observed:
The intent of the legislature as appears from the statement of objects and reasons cannot possibly be decried by reason of
the situation prevalent during the period in question. In more than one state of the country it was rather a dismal picture.
The use of prohibited arms and deadly weapons turned out to be a regular feature and the existing state of law was not in a
position to subvert these moves by the anti-national elements and in the event of incorporation in the statute book of a
legislation which stands engrafted therein to protect the society from these unruly elements, it is a bounden obligation of the
law Courts to attribute its widest possible amplitude to the words used in the legislature and interpret the legislation in
accordance therewith.
Page 4 of 5
41 .ITW Signode India Ltd v Collector of Central Excise, (2004) 3 SCC 48 [LNIND 2003 SC 1007]; Ashok Leyland Ltd. v
State of Tamil Nadu, (2004) 3 SCC 1 [LNIND 2004 SC 1556]; Bakhtawar Trust v MD Narayanan, (2003) 5 SCC 298,
para 31; Mumbai Bidi Tambaku Vyapari Sangh v Union of India(2003) 2 Mh LJ 147; State of Kerala v NN Khalid 2000
AIHC 568, p 571; Devadoss v Veera Makati Amman AIR 1998 SC 750, Jagadish Chandra Sinha v Eileen k (1995) 1
SCC 164
42 .Kavalappara Kotarathil Kachuni v States of Madras and Kerala AIR 1960 SC 1080 [LNIND 1960 SC 436]; AC Sharma
v Delhi Admn AIR 1973 SC 913 [LNIND 1973 SC 30].
43 .PV Narasimha Rao v State (CBI/SPE) AIR 1998 SC 2120 [LNIND 1998 SC 1259].
44 .Express Newspapers Ltd v Union of India AIR 1958 SC 578 [LNIND 1958 SC 25], p 622; Ashwini Kumar Ghosh v
Arabinda Bose [ AIR 1952 SC 369 [LNIND 1952 SC 94][ LNIND 1952 SC 94], 1952] SCR 1, (1952) SCJ 568; Provat
Kumar Kar v William Trevelyan Curties Parker AIR 1950 Cal 116; Satya Prakash v Bashir Ahmad AIR 1963 MP 316, p
321, per Dixit J; Rashid Khan Osman Khan v Maltibai (1980) Mah LJ 328.
45 .State of West Bengal v Subodh Gopal AIR 1954 SC 92 [LNIND 1953 SC 118], p 104; MK Ranganatham v Govt of
Madras AIR 1955 SC 604 [LNIND 1955 SC 41], p 608; Commr of Income-tax, Madhya Pradesh v Sadra Devi (Mst)
AIR 1957 SC 832 [LNIND 1957 SC 59], p 839; Satrughna Sahu v State of Orissa AIR 1958 Ori 187, p 189; Anant
Kumar Datta v Land Revenue Officer AIR 1958 Cal 143 [LNIND 1957 CAL 148]; Manik Chand Choudhary v State
(1958) 62 CWN 94; Surendra Nath Jana v State of West Bengal (1958) 62 CWN 14; Musaliar v Venkatachalam AIR
1956 SC 246 [LNIND 1955 SC 116]; Aswini Kumar Ghose v Arbinda Bose [1953] SCR 1 [LNIND 1952 SC 94]; Kochuni
v State of Madras [1960] 3 SCR 887 [LNIND 1960 SC 436], p 899, AIR 1960 SC 1080 [LNIND 1960 SC 436], p 1086;
Re Oriental Gas Co Ltd AIR 1961 Cal 267 [LNIND 1960 CAL 196]; Kangra Valley State Co v Kedarnath AIR 1961 Punj
540; Rahiman v Rao AIR 1960 Bom 271 [LNIND 1959 BOM 12]; Gour Nitay Tea Co v State of Assam AIR 1966
Assam 58; Radhacharandas v Bhima Patra AIR 1966 Ori, 1, p 4 per Ahmad CJ; Rameshwarlal v Excise Taxation
Officer AIR 1964 Punj 1, p 9, per DK Mahajan J; MN Dasanna (Dr) v Govt of Andhra Pradesh (1968) 2 Andh LT 251,
(1968) 2 Andh WR 413; RA Patil v AB Redekar & Ors AIR 1969 Bom 205 [LNIND 1968 BOM 81]; Kailas Sizing Works
v Municipality of Bhivandi AIR 1969 Bom 127 [LNIND 1968 BOM 48]; Narain Singh v Financial Commr, Punjab (1968)
Punj LJ 321; Zaibunissa v Divisional Suptd, Southern Rly, Hubli AIR 1965 Mys 306; Kunju Govindan v Parakat
Kunhilakshmi Amma AIR 1966 Ker 244 [LNIND 1965 KER 309], (1966) Ker LT 261; Sundari v Ranka Behara AIR 1968
Ori 134 [LNIND 1968 ORI 53], pp 137-38, per SK Ray J; Raj Kumarsinghji v Commr, Expenditure-tax AIR 1968 MP
107, p 112, per Bhave J; State of Bihar v Mohd Ismail AIR 1966 Pat 1, p 5, per UN Sinha J.
46 . For a detailed exposition of the mischief rule see Part II chapter III supra. Ratnamala v State of Mysore AIR 1968 Mys
216, pp 224-25, per Chandrasekhar J; Ranoji Rao v State of Madhya Pradesh AIR 1965 MP 77 [LNIND 1964 MP 79],
p 83 per Dixit CJ: to find out the object of the enactment; GTR Co Pvt Ltd v Certificate Officer AIR 1964 Cal 285
[LNIND 1963 CAL 184], per DN Sinha, J; Madhya Pradesh Mineral Industries v Regional Provident Fund Commr AIR
1959 Bom 60-61.
47 . AIR 1985 SC 1367 [LNIND 1985 SC 87].
48 . AIR 1952 SC 369 [LNIND 1952 SC 94].
49 . AIR 1976 SC 1654 [LNIND 1976 SC 104].
50 . (2005) 7 SCC 584 [LNIND 2005 SC 697].
51 . (2003) 1 SCC 692, para 11 and 12.
52 . (2004) 8 SCC 402 [LNIND 2004 SC 1025].
53 . (2004) 2 SCC 249.
54 . (2005) 6 SCC 281 [LNIND 2005 SC 1208].
55 . (2005) 8 SCC 504 [LNIND 2005 SC 753].
56 . (2003) 2 SCC 188 [LNIND 2003 SC 5] paras 16-18 and 25.
57 . (2000) 5 SCC 488 [LNIND 2000 SC 859].
58 . (2003) 5 SCC 298, para 31.

Page 5 of 5
59 . (2003) 1 SCC 506 [LNIND 2002 SC 695].
End of Document
Words in Statutes in Pari Materia
NS Bindra
Aids
Words defined in a statute may have the same meaning in another statute, which is in pari materia t herewith.60
What do we mean by the statute, in pari materia? Where acts are so related as to form a system or code of
legislation and when they relate to same persons or things or to the same class of persons or things or have the
same purpose or object, the statutes are called in pari materia. Courts while construing a provision of an enactment
often follow the decisions by the courts construing similar provision of an enactment in pari materia.61 However,
where different statutes deal with identical subjects at different times or deal with a person or thing for the same
purpose, they are in pari materia and they should be taken and considered together as one system and as
explanatory of each other.62 Where words and expressions in a statute are taken from earlier statute in pari
materia, which have received judicial construction, it must be assumed that the legislature was aware of such
interpretation, and intended it to be followed in later enactments.63 In case of doubt or uncertainty, statute in pari
materia are to be construed together; each legislative Act is to be interpreted with reference to other Acts relating to
the same subject, the same person or thing, or the same class of persons or things. The concept of grouping of
statutes relating to the same subject matter and their comparison in aid to construction was affirmed and
recommended by Blackstone. Statute which relate to the same subject, the same person or thing, or the same class
of persons or things, are deemed to constitute one system of law; they are considered as one statute, subsequent
laws are regarded as supplementary or complementary to the earlier enactments. When enacting a new law, the
legislature is presumed to have had in contemplation the existing statutes on the same subject, and to have framed
its enactment with reference thereto. This is the real basis for the rule in pari materia; and it is conductive to judicial
discipline to interpret identical provisions in two Acts which are in pari materia, in a similar manner.64
Dwarris observes:
It is to be inferred, that a code of statutes relating to one subject was governed by one spirit and policy and intended to be
consistent and harmonious in its several parts and provisions. It is, therefore, an established rule of law, that all Acts in pari
materia are to be taken together, as if they were one law; and they are directed to be compared in the construction of
statutes, because they are considered as framed upon one system, and having one object in view.65
The rule is thus an extension of the principle that the whole statute is not to be viewed and compared in all its parts,
in order to ascertain the meaning of any of its parts. All laws relating to a particular matter or subject, that is law in
pari materia, bear the same relation to any law within the group or system as the whole statute bears to any of its
several parts. Even if the same expression is used in two Acts which are in pari materia, it does not lead necessarily
to the conclusion that this expression means exactly the same thing in both these enactments. The rule in pari
materia is not applicable when the object to which the words are applied or the intention with which the measure is
enacted requires the expression to be differently understood in the two statutes, or where the expressions used in
the latter statute are not re-enacted with the same limitation as in the earlier statute, or where a contrary intention is
manifested by other qualifying or explanatory terms. Nor can the help of this rule be invoked when the terms of the
statute to be construed make it quite clear that the expressions used therein were intended to convey a different
meaning. Statutes in pari materia may not be resorted to control the clear language of the statute.66
In Commissioner of Customs v Indian Oil Corporation,67 it was observed that Section 151A of the Customs Act,
1962, wasin pari materia with the provisions of Section 119 of the Income Tax Act, 1961, and Section 37B of the
Central Excise Act, 1944. The court had also expressed this view in judgments pronounced prior to the amendment
Page 2 of 3
which introduced Section 151A. Thus, the court was of the opinion that it may be assumed that Parliament had
legislatively approved the construction by using the exact words so construed again in the Customs Act. In this
situation, the court saw no reason why the principles enunciated under the two earlier Acts should not be
determinative of the construction to be put in respect of a materially similar statutory provision.
In Shaik Sheriff v Mahado Seetha Ram,68 the Court had to consider whether the groundnut oil is food within the
meaning of the Hyderabad District Municipalities Act, 1956. In this regard, the definition in the Hyderabad Municipal
Corporation Act was invoked by the appellant to argue that groundnut oil was not food within the meaning of the
Act. The Court extensively considered the idea of importing a definition from another statute, and observed:
The rule that, when a statute is found to be ambiguous in respect of some provision, the intention of the Legislature can be
gathered from statutes relating to the same subject-matter, statutes in pari materia, is firmly settled. This principle is based
upon an assumption that, whenever the Legislature enacts a provision, it has in mind the previous statute relating to the
same subject-matter. In the absence of any express departure from the meaning given to an expression in an earlier
enactment, it is presumed that the new provision is enacted in accord with the legislative policy embodied in the prior
statute and that is why the enactments on the same subject-matter are permitted under this principle to be construed
together...The rule in regard to construction of the statutes, which are in pari materia need not be confused with other allied
rules of construction. In considering what light one statute may throw upon the meaning of another stature, there are three
different modes to ascertain what assistance can be derived; firstly, from the statutes, which are in pari materia with the
statute under consideration; secondly, from the statutes not precisely in pari materia, but which have similar scope on
similar subject or which in some way relate to or affect the same subject-matter and thirdly, from subsequent statutes,
which are called parliamentary expositions of prior statutes. It is obvious that we are concerned with the first principle. What
do we mean by the statutes in pari materia? Where Acts are so related as to form a system or code of legislation and when
they relate to same persons or things or to the same class of persons or things or have the same purpose or object, the
statutes are called in pari materia. They may be independent and amendatory in form they may be complete enactments
dealing with a single limited subject-matter or sections of a code or provision or they may be combination of these. It must
be remembered that in order to be in pari materia, the Acts need not have been enacted simultaneously or that they should
refer to one another. However, application of the rule that statutes in pari materia should be construed together is most
justified in the case of provisions of the Acts relating to the same subject-matter, that were passed at the same or
successive sessions of the legislature in the same year. In such cases, the probability that Acts relating to the same
subject-matter were actuated by the same policy is very high for the Acts were enacted by the same men at almost the
same time. This, of course, is subject to one over-riding consideration that, unless the two enactments clearly indicate two
different considerations although they may relate to the same subjectthe word pari must not be confounded with the word
similar. It is used in fact in opposition to it, intimating not like nests merely, but identity. It would however be a mistake to
expect identity in the language of the Acts. The principle obviously relates to the identity in regard to the person or thing or
class of persons or things: in other words, the subject-matter of the statute called in pari materia. If the language of the two
statutes in all respects is identical, no question of construing one Act with the assistance of the other; if the Act is
ambiguous or some provision appears to be of doubtful meaning that the assistance is sought from another statute in pari
materia to remove the doubt or ambiguity. It is only in such circumstances that assistance in ascertaining the meaning of an
enactment is permitted under this rule to be obtained by comparing its language with the words given in an earlier statute
relating to the same subject.
60 .State of Madras v Vaidyanatha Iyer AIR 1958 SC 61 [LNIND 1957 SC 98], p 65; Adilabad City Municipality v Mahado
Seetha Ram AIR 1967 AP 363 [LNIND 1966 AP 77]: where the questions when statutes are in pari material was
elaborately considered; Shaw & Co, Bombay v State of Maharashtra AIR 1967 SC 1877 [LNIND 1967 SC 122];
Jagdish Bharti v Union of India 1969 Lab IC 205 (All); Rani Bhargawa v State of Uttar Pradesh (1968) All LJ 1011;
Sonia Bhatia v State of Uttar Pradesh (1981) All LJ 467 (SC).
61 .Babu Khan & Ors v Bazim Khan (Deceased) &Ors (2001) 5 SCC 375 [LNIND 2001 SC 967].
62 .Indore I&S Assn v State AIR 1957 MB 83, p 87: Agra Pre-emption Act and Punjab Preemption Act are in pari materia;
Teekam Ram v Mangtu AIR 1970 Del 224 [LNIND 1970 DEL 135], p 230 per Hardy J.
63 .Thakur Prasad v Baleshwar Ahir AIR 1954 Pat 106-07: the word suit in s 21, Arbitration Act 1940, included appeal.
Page 3 of 3
64 .Harcharan Singh v Shivrani1981 All WC 273 (SC).
65 . Potter, Dwarris on Statutes, p 189.
66 .Firm Hazarimal Kuthalia v Income-tax Officer, Ambala AIR 1957 Punj 5, 8-9.
67 . (2004) 3 SCC 488 [LNIND 2004 SC 235].
68 . AIR 1967 AP 363 [LNIND 1966 AP 77], pp 368-69, per Ekbote J; Indore Iron and Steel Ltd v State of Madhya Bharat
AIR 1957 MB 83, p 87, per Nevaskar J; United Stated v Freeman 11 L Ed 724, pp 727-28, per Wayne J; Kohisaat v
Murphy 24 L Ed 844, p 846, per Clifford J; Vane v Newcomb 39 L Ed 310, p 315, per Blatchford J; Tigier v Western
Invstment Co 55 L Ed 738, per Day J; Rajaram Anna Yede v Shashiklala Bhagwan Yede (1976) Mah LJ 47: case of
construction of prior statute with the aid of later statute inparimateria.
End of Document
Words Previously Judicially Interpreted
NS Bindra
Aids
Similarly words and expressions occurring in two statutes in pari materia which are to be taken and construed
together as one system as explanatory of each other, should be given the same meaning unless there is something
repugnant in the subject or context.69
Construction of an Earlier Act by a Subsequent Act
If the legislature in one Act has used language which is ambiguous, and in a subsequent Act has used language
which proceeds upon the hypothesis that a particular interpretation is to be placed upon the earlier Act, the judges
have no choice but to read the two Acts together, and to say that the legislature have acted as their own
interpreters of the earlier Act.70 This principle has to be followed where a particular construction of an earlier Act
will render the later incorporated Act ineffectual, otioseor inept. The subsequent legislation may be looked at to see
the proper construction to be put upon an earlier Act where that earlier Act is ambiguous.71
In Shni-Etsu Chemical Limited v Aksh Opti fibre Limited,72 the court was called upon to consider the nature of the
adjudication that is contemplated under Section 45 of the Arbitration and Conciliation Act,1996. Section 45 read as
follows:
Notwithstanding anything contained in Part I or in the Code of Civil Procedure, 1908 (5 of 1908), a judicial authority, when
seized of an action in a matter in respect of which the parties have made an agreement referred to in Section 44, shall, at
the request of one of the parties or any person claiming through or under him, refer the parties to arbitration, unless it finds
that the said agreement is null and void, inoperative or incapable of being performed.
It was contended before the Court that the arbitration agreement was null and void. The issue was whether the
aforementioned objection could be decided prima facie and the matter sent for final disposal to the arbitral tribunal
or should the court hear it on merits and dispose of the matter. The minority judgment of Sabharwal J placed heavy
reliance on judgments given under the preceding enactment, the Arbitration Act of 1940. He observed that when
words in an earlier statute have received an authoritative exposition by the superior court; the use of the same
words in a similar context in a later Act will give rise to a strong presumption that the Parliament intended that the
same interpretation should also be followed for construction of those words in the later statute. Relying on this
principle he decided that the determination must be final and binding and not merely prima facie.
On the other hand the majority judgment of Srikrishna and Dharmadhikari JJ opined that precedents under old
enactments should be considered with caution. Justice Srikrishna also opined that foreign judgments as external
sources on interpretation must be treated with great caution, especially cases under those enactments and
jurisdiction where the structure and the text of the law was substantially different.
In Assistant Collector of Central Excise, Rajamundary v Duncan Agro Industries Ltd,73 the question was whether
the provisions of Section 164 of the Code of Criminal Procedure, 1973, were applicable when the excise officers
recorded the statement of a person under Section 108 of the Customs Act, 1962. It was held that the provisions
were similar to the provisions under Section 171A of the Sea Customs Act, 1878, and also under Section 40 of the
Central Excise Act, 1944. Hence, similar interpretation should be followed and accordingly statements recorded by
the customs officer even without complying with Section 164 were held to be admissible in evidence.
When certain words used in a statute have received judicial interpretation and are repeated in a subsequent statute,
it is to be assumed that the legislature has used them in the same sense in which they have been judicially
Page 2 of 3
interpreted. This rule of construction appears to be established beyond doubt. It has long been a well-established
principle to be applied in the consideration of Act of Parliament that when a word of doubtful meaning has received
a clear judicial interpretation, the subsequent statute which incorporates the same words or the same phrase in a
similar context, must be so construed so that the word or phrase is interpreted according to the meaning that has
previously been assigned to it. When two statutes are not in pari materia, one statute is a completely self-contained
statute with its own provisions and has created specific offences quite different from the offences in the other
statute, the interpretations, given to the expression in one statute shall not be applicable to the same expressions in
the other statute.74 It is necessary to keep in mind that the words and expression defined in one statute as judicially
interpreted do not afford a guide to construction of the same words or expressions in another statute, unless both
the statutes are parimateria legislations, or it is specifically provided in one statute, that the words used in it be
given the same meaning as the words defined in the other statute.75 When the same statute uses two different
words, then prima facie one has to assume that these different words must have been used to mean differently, but
even so the context in which the words are used has also to be considered.
In Kanhaiyalal Vishindas Gidwani v Arun Mehta,76 the words signed and subscribed used in Section 33 of the
Representation of the People Act, 1951 were under consideration. The Court held that the expressions were used
with reference to proposing a candidate at an election contemplated under the Act. The word sign was used with
reference to proposing a candidate of a recognised party-candidate while the word subscribe was used for
proposing the candidature of a non-recognised political party-candidate. It was not for the first time in 1966 that the
legislature used the word subscribed in the Act. The word was in existence in the statute since the year 1975 in
Section 33 (1A) of the Act. Over there, the legislature had used the word subscribed both in regard to the candidate
as well as the proposers and seconders. In the context in which the word subscribed was used in Section 33 (1A),
in the opinion of the Court, showed that the legislature did not intend to use the word in any manner differently from
the use of the word subscribe in the proviso. Hence, it could not be read differently from the expression sign used in
Section 33.
But there are occasions when the legislature does use two different expressions without meaning to make any
distinction between them. It is equally so in cases of constitutional provisions. Thus, the expressions existing law
and law in force used in the Constitution have been treated and interpreted as interchangeable and synonymous,
though they are of a wider and narrower connotation respectively.77
In Kerala State Industrial Development Corporation v CIT,78 the Court had to consider the overriding effect of
Section 21 of the Interest-tax Act, 1974, on Section 5 of the Interest Tax Act79 due to the incorporation of Section
145 of the Income-tax Act, 1961 in Section 21 . Under Section 5, interest-tax had to be levied only on the interest
income computed, based on the method of accounting regularly employed by the assessee. The High Court had
held that the chargeable interest, in terms of Section 5 of the Interest-Tax Act was the total amount of interest
accruing in the relevant previous year and that there was no scope in the section to read chargeable interest as
meaning the amount actually received in the relevant previous year. On appeal, the Supreme Court reversed the
decision of the High Court. It pointed out that the High Court had, in arriving at its decision, overlooked the words
subject to the provisions of the Act in Section 5 . This meant that Section 21 had to be considered (incorporated into
the Interest tax Act, 1974) in light of the certain specified sections and schedules of the Income-Tax Act which have
been made applicable with necessary modifications as if the said provisions referred to the Interest-tax Act 1974
instead of the Income-tax Act. Section 145 permitted income chargeable under certain heads to be computed in
accordance with either the cash or mercantile system of accounting, as may be regularly employed by the
assessee. The assessee, had followed the cash system of accounting80 in respect of the interest income. Hence,
the Court held that it was rightly contended that Section 5 of the Interest-tax Act would in the circumstances allow
the calculation or computation of chargeable interest on the basis of the amount of interest actually received and
not income accrued.
A useful summing up of the legal position was made by the Supreme Court in State of Kerala v Attesee Agra
Industrial Trading Corporation:81
When a subsequent Act incorporates provisions of a previous Act, then the borrowed provisions become an internal
and independent part of the subsequent Act and are totally unaffected by any repeal or amendment of the previous
Act. This principle, however, will not apply in the following cases:
(a) where the subsequent Act and the previous Act are a supplement to each other;
(b) where the two Acts are in pari materia;
Page 3 of 3
(c) where the amendment in the previous Act if not imported into the subsequent Act is wholly unworkable and
ineffectual; and
(d) where the amendment of the previous Act either expressly or by necessary intendment applies the said
provisions to the subsequent Act.
69 .Ramchandra Deo v Bhalu Patnaik AIR 1950 Ori 125, p 127; Vishnu Tatya Naik v Emperor AIR1941 Bom 85, p 89,
(1941) ILR Bom 191: statutes having similar objects; Omar Tyab v Ismail Tyab AIR 1928 Bom 69, 71: cognate statutes;
Gwalior Rayons Silk Mfg (Wvg) Co Ltd v Custodian of Vester Forests, Palghat AIR 1990 SC 1747 [LNIND 1990 SC
902], (1990) JT 130.
70 .Attorney-General v Clarkson [1900] 1 QB 156; Attorney-General for Victoria v Melbourne Corpn [1907] AC 469, p 474;
Archibald v Commr of Stamps (1909) 8 CLR 739, p 759; Hedderwick v Federal Commr of Land-tax 16 CLR 27, 45.
71 .Sone Valley Portland Cement Co Ltd v General Mining Syndicate (1976) 3 SCC 852 [LNIND 1976 SC 298]; Income-
tax Officer v Moni Ram AIR 1969 SC 543 [LNIND 1968 SC 222]; Bishundas Mehta v State of Bihar (1982) BLJR 242.
72 . (2005) 7 SCC 234.
73 . (1999) 7 SCC 53.
74 .State of Maharashtra v Laljit Rajshi & Ors (2000) 2 SCC 699 [LNIND 2000 SC 387].
75 .Jagathram Ahuja v Commr of Gift-tax, Hyderabad (2000) 8 SCC 249 [LNIND 2000 SC 1356].
76 . (2001) 1 SCC 78 [LNIND 2000 SC 1564].
77 .State of Bombay v Heman Santlal AIR 1952 Bom 16 [LNIND 1951 BOM 115], (1951) 53 Bom LR 837; Kesavananda
Bharati v State of Keralal AIR 1973 SC 1461 [LNIND 1973 SC 154], per Chandrachud J.
78 . (2003) 11 SCC 363.
79 . The section reads thus: Subject to the provisions of this Act, the chargeable interest of any previous year of a credit
institution shall be the total amount of interest (other than interest on loans and advances made to other credit
institutions) accruing or arising to the credit institution in that previous year.
80 . That is, accounting as and when income is actually received.
81 . AIR 1989 SC 222 [LNIND 1988 SC 915], (1988) (4) JT 250 (SC), (1989) 19 ECC 60, (1989) 38 ELT 720, (1989) 72
STC 1, 1988 STJ 129 (SC), (1989) 28 STL 1, 1989 UPTC 241; State of Madhya Pradesh v Narasimham AIR 1975 SC
1835 [LNIND 1975 SC 212], [1976] 1 SCR 6 [LNIND 1975 SC 212]; Secy of State v Hindustran Co-op Insurance
Society Ltd AIR 1931 PC 149, (1931) 58 IA 259.
End of Document
Technical Meaning
NS Bindra
Aids
Technical Meaning
If the legislature uses an artificial expression or a term of art, then that expression or that term must be construed
according to the language used by the legislature. In dealing with matters relating to the general public, statutes are
presumed to use words in their popular sense uti loquitur vulgus.82 In construing statute, it should be borne in mind
that complete generality is not necessarily to be attributed to the general words. These are to be construed so as to
pursue the interest of the makers of the statute, and so as to import all those exceptions, which arise from a close
consideration of the mischiefs sought to the remedied and of the state of the law at the moment when the statute
was passed.83
In the context of the law of limitation, the Court has held:
In a technical matter (such as construction of Limitation Act), when the language relied upon does not in express terms
cover the case, it is of the highest importance to realise the position of the parties and the context in which the language is
used. Where the interpretation sought to be put upon the words is arrived at by implication and by reference, the court
ought not to adopt a construction which has a restricting and penalising operation, unless it is driven to do so by the
irresistible force of language.84
In KN Joglekar v Barsi Light Rly Co,85 the definition of retrenchment under s 2 (oo) of the Industrial Disputes Act,
1947, was in question. The Court held that retrenchment meant the termination by the employer of the service of a
workman for any reason whatsoever, other than as a punishment inflicted by way of disciplinary action. The Court
delineated three circumstances which were not included in the definition of retrenchment i.e. voluntary retirement,
retirement on reaching the age of superannuation, and termination of the service of a workman on the ground of
continued ill-health. The Court held that if the legislature had provided that the termination of the service of an
employee for any reason whatsoever would be deemed to be retrenchment within the meaning of the Act, there
was no reason for the Court to select certain situations as coming within the meaning of the definition and certain
other situations as not coming within the meaning of the definition. Whether the reason for dismissal was a matter
of economy, or his political participation, or his wish to close down his business, it would amount to retrenchment
within the meaning of Section 2 (oo).
In KV Varkey v Sales-tax Officer,86 the question before the Court was whether tea could be considered as
agricultural and horticultural produce under Sections 2 (j)(m) and 3 of the Travancore General Sales Tax Act. If
brought under these provisions, tea would be exempt from sales tax. The Court rejected the inclusion of tea in the
ambit of the provisions and held that tea, though an agricultural produce, would not have the benefit of the
exemption. The Court observed:
The particular words used by the legislature in the denomination of articles should be understood according to the common
commercial understanding of the term used, and not in their scientific or technical sense, for the legislature does not
suppose our merchants to be naturalists or geologists or botanists.
But it is not permissible first to create an artificial ambiguity and then try to resolve the ambiguity by resorting to
some general principle.87
When words have acquired settled meaning, the same must be accepted. Dictionary meanings cannot be given to
such words. Consequently,
(i) post-graduate degree does not include BT, LLB etc;88
Page 2 of 2
Technical Meaning
(ii) working fund in respect of a banking company has got its own settled meaning;89
(iii) undefined words (like paper) must be understood in their popular and commercial sense.90
82 .Baijnath Singh v Oudh Tirhut Rly AIR 1960 All 362 [LNIND 1959 ALL 129], 365.
83 . Re Viscountees Rhonddas Claim [1922] 2 AC 339; Jatinga Valley Tea Co v State of Assam AIR 1960 Assam 67, p 69.
84 .Abdul Karim v Islanunnissa Bibi (1916) ILR 38 All 339, 343, 54 IC 231-32; Maung Tha v Ma Pyn 46 IC 323.
85 . AIR 1955 Bom 294 [LNIND 1955 BOM 5], p 297.
86 . AIR 1956 Tr&Coch 105: Reliance was placed upon the case reported in 1951 CLR Ex 122, where it was held that
salted peanuts and cashewnuts did not fall within the category of fruit and vegetable for the purpose of the Excise Act,
Ch 179, RSC 1927, through the botanists had given that both were vegetables in the wider meaning of the words.
87 .Commr of Income-tax v Indian Bank AIR 1965 SC 1473 [LNIND 1964 SC 279], (1965) 2 SCA 208 [LNIND 1964 SC
279], (1965) 1 SCJ 231 [LNIND 1964 SC 279].
88 .Judhika v State of Madhya Pradesh (1976) 1 SCC 925 [LNIND 1976 SC 12].
89 .Workmen v National & Grindlays Bank AIR 1976 SC 611 [LNIND 1976 SC 12].
90 .State of Uttar Pradesh v Kores (India) Ltd AIR 1977 SC 132 [LNIND 1976 SC 373], (1976) 4 SCC 477 [LNIND 1976
SC 373], [1977] 1 SCR 837 [LNIND 1976 SC 373], (1977) 1 SCJ 407.
End of Document
Surplusage
NS Bindra
Aids
Surplusage
In the field of interpretation of statutes the courts always presume that the legislature inserted every part thereof
with a purpose and the legislative intention is that every part of the statute should have effect. Effect must be given,
if possible to all the words used in the statutory provision, for the legislature is deemed not to waste its words or to
say anything in vain.91 When the legislature requires certain formalities to be gone through or certain formalities to
be observed, in order to make a contract valid, or when it requires certain descriptions or particulars to be given in a
contract to make it valid, the court cannot consider any one of the terms or requisites as of no importance.92 To
ascertain the meaning of a section, it is not permissible to omit any part of it; the whole section should be read
together and an attempt should be made to reconcile both the parts.93 No court should construe a section on the
footing that the legislature has committed an error.94 Hence, before deciding that one of two apparently
inconsistent enactments is superfluous, void or insignificant, it shall first be seen whether one is not a qualification
of the other and then, if reconciliations found impossible, the last must prevail and override the other.95
In Polovarupu Sommarajyam v Andhra Pradesh Road Transport Corporation,96 the Court considered Sections
Section 1A and 2 of the Fatal Accidents Act, 1855, and Section 110B of the Motor Vehicles Act, 1988, and held that
both operate in the same field, and both the substantive provisions were intended to supplement each other. On the
point of surplusage, the Court held that the provisions ought to be construed harmoniously, or else by process of
interpretation, the substantive power to determine just compensation given under Section 110B would be rendered
superflous, which could cause a result not intended by the legislature.
In Union of India v Popular Construction Co,97 the question was whether the provisions of Section 5 of the
Limitation Act, 1963, were applicable in proceedings under Section 34 of the Arbitration and Conciliation Act, 1996,
for setting aside the arbitral award. The Court considered that in the language of Section 34 of the 1996 Act, the
crucial words werebut not thereafter used in the proviso to sub-section (3). The Court held that the import of this
phrase was an express exclusion within the meaning of Section 29 (2) of the Limitation Act, and hence the
application of Section 5 of the 1963 Act was barred. The Court held that if it were to hold that courts could entertain
an application to set aside the award beyond the extended period under the proviso, it would render the phrase but
not thereafter wholly otiose. No principle of interpretation would justify such a result.
In State of Maharashtra v Marwanjee F Desai,1 the issue before the Court pertained to the scope and ambit of
Section 7 of the Bombay Government Premises (Eviction) Act, 1955, and its applicability vis-a-vis an order of
dropping of proceedings in terms of a notice issued under Section 4 of the 1955 Act and resultant dismissal of the
proceedings initiated for dispossession from the government premises. The High Court held in favour of the
occupants. The precise question before the Court was whether an order made under the Bombay Government
Premises (Eviction) Act, 1955, on dropping of proceedings was appealable. Holding in the affirmative, the court held
that the word every, appearing in Section 7 of the Act, immediately before the word order, stood out to be extremely
significant as it offered an opportunity of appeal in the event of there being an order against the government. The
legislature had deliberately used every order and if a restrictive meaning were to be attributed, the word every
would become totally redundant. Since the legislature avoids redundancy, the Court considered that every word
used in the particular provision ought to be attributed a meaning and attribution of meaning to the word every would
negate a restrictive interpretation. Hence, the Court held that the use of the words every order indicated that it
comprehensively covers all decisions reached by the competent authority under Sections 4 or 5 of the Act.
Page 2 of 2
Surplusage
In Vijaya Bank v Shyamal Kumar Lodh,2 the dispute was over the jurisdiction of the Labour Court to award
suspension or subsistence allowance under Section 33C (2) of the Industrial Disputes Act, 1947. The Labour Court
had to be specified by the Central Government, which had not been done in the present case. The employee
claimed that the explanation appended to Section 33C of the Act made it clear that the Labour Court includes any
Court constituted under any law relating to investigation and settlement of industrial disputes in force in any State.
Hence, the Labour Court concerned in the instant case ought to have jurisdiction to entertain the matter sans any
specific notification by the Central Government. The Supreme Court sought to interpret Section 33C (2) and the
explanation appended to it. The Court held that effect ought to given to the expression as may be specified in this
behalf used in Section 33C (2) of the Act, and the consequence of that is that there has to be specification by the
appropriate Government that a particular court shall have jurisdiction to decide money claim under Section 33C (2)
of the Act and it is that court alone which shall have the jurisdiction. Hence, the Court held that the Labour Court in
the instant case did not have jurisdiction under Section 33C (2) of the Act. The Court observed:
Words used by the Legislature carry meaning and therefore efforts have to be made to give meaning to each and every
word used by it. A construction brushing aside words in a Statute is not a sound principle of construction. Legislature never
waste its words or says anything in vain and a construction rejecting the words of a Statute should not be resorted to.
91 .Quebec Rly v Vandry AIR 1920 PC 181, p 186, per Lord Summer; Sat Pal v Abdul Hayi AIR 1949 EP 1; Brij Mohan Lal
Murli Dhar v Raj Kishore AIR 1956 Punj 555.
92 .Public Prosecutor v Ayitha AIR 1926 Mad 670 [LNIND 1925 MAD 384], (1926) ILR 49 Mad 426.
93 .State of Bihar v Hira Lal Kejriwal AIR 1960 SC 47 [LNIND 1959 SC 158], p 50.
94 .Kalu Khoda v State of Gujarat AIR 1962 Guj 283 [LNIND 1962 GUJ 119].
95 .Sikandar Khan v Baland Khan (1927) ILR 8 Lah 617, per Tek Chand J.
96 . AIR 1983 AP 407 [LNIND 1982 AP 375].
97 .Union of India v Popular Construction Co (2001) 8 SCC 470 [LNIND 2001 SC 2234].
1 . (2002) 2 SCC 318 [LNIND 2001 SC 2858].
2 . (2010) 7 SCC 635 [LNIND 2010 SC 551], AIR 2010 SC 3563 [LNIND 2010 SC 551].
End of Document
Draftsmans Errors
NS Bindra
Aids
Draftsmans Errors
In Bijayanagar Tea Co v Indian Tea Licensing Committee,3 Edgley J observed:
In construing statutes it has been held that a court of law may reject words of surplusage if it is clear that otherwise the
manifest intention of the legislature will be defeated, and Maxwell in his book on Interpretation of Statutes has pointed out
that the judicial interpreter may deal with careless or inaccurate words and phrases in the same spirit as a critic deals with
an obscure or corrupt text, when satisfied on solid grounds from the context or history of the enactment or from the
injustice, inconvenience or absurdity of the consequences to which it would lead that the language thus treated does not
really express the intention and that the amendment probably does.
In Maxwell on the Interpretation of Statutes,4 principle of construction is laid down in these terms:
Where the language of statute in its ordinary meaning and grammatical construction, leads to a manifest contradiction of
the apparent purpose of the enactment, or to some inconvenience or absurdity, hardship or injustice, presumably not
intended, a construction may be put upon it which modifies the meaning of the words and even the structure of the
sentence: and for that proposition several authorities are cited.
In Salmon v Duncombe,5 Lord Hobhouse in delivering the judgment of the Privy Council said:
It is, however, a very serious matter to hold that when the main object of a statute is clear it shall be reduced to a nullity by
draftsmans unskillfulness or ignorance of law. His lordship went on to say that the case with which he was dealing was a
good instance of the principle that the manifest intention of a statute must not be defeated by too literal an adhesion to its
precise language, and that the section should be so construed as to carry out its undoubted object.6
In Udeypal Singh v Lakshmi Chand,7 the Court was considering the expression as such occurring in Section 20 of
the Limitation Act, 1963.The difficulty arose because the interpretation of the expression could connote that if a
payment were made and specifically appropriated towards repayment of capital, a fresh period of limitation will run
from the date of payment, or if interpreted the other way, it could mean that if a payment were made and no specific
appropriation appeared in the endorsement then a fresh period of limitation would not begin to run from the date of
payment. To resolve this controversy, the Court held that the expression as such was an error in drafting and was
redundant, since a payment of interest was just a payment of interest and the use of the expression as such did not
add anything to the context. In arriving at this decision, the Court observed:
It is true that it is the duty of the court to do full justice to each and every word appearing in a statutory enactment. It is
common knowledge that draftsmen are sometimes careless and slovenly, and that their draftsmanship results in an
enactment which is unintelligible or, if intelligible, is absurd. Where this is so, there is no reason why the court should not
diligently endeavour to spell out a meaning where there is no meaning or to solemnly affirm that the legislature deliberately
placed imprimatur on a absurd enactment. No doubt, generally, full justice must be done to the words of a statutory
enactment, but if the result of that is to do less than justice to the intelligence of the legislature, it is the duty of the court to
ignore the words which have the effect of making the enactment an absurd one.
Page 2 of 2
Draftsmans Errors
3 . AIR 1940 Cal 406, pp 410-11; Hollyhomes v Hind [1944] All ER 8, [1944] KB 571.
4 . Maxwell, Interpretation of Statutes, eleventh edn, p 221.
5 . [1886] 11 AC 627.
6 .Sankar Ram v Kasi Naicker (2003) 11 SCC 699 [LNIND 2003 SC 599].
7 . AIR 1935 All 946, p 952, (1936) ILR 58 All 261, per Thorn J: minority judgment; quoting Maxwell, Interpretation of
Statutes, eleventh edn, pp 221, p 243; King v Vasey and Lally [1905] 2 KB 748; King v Ettridege [1909] 2 KB 24;
Salmon v Duncombe [1887] 11 AC 627.
End of Document
Noscitur a sociis
NS Bindra
Aids
Noscitur a sociis
The maxim, noscitur a sociis, that a word is known by the company it keeps while not an inescapable rule, is often
wisely applied where a word is capable of many meanings in order to avoid the giving of unintended breadth to the
statute.8 When words, are used in such juxtaposition (immediately following others), the earlier words have a
demonstrative or limiting effect. Where 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 their colour from each other,
and the more general is restricted to a sense analogous to the less general.9 It is not a sound principle in
interpretation of statutes to lay emphasis on one word disjuncted from its preceding and succeeding words. A word
in a statutory provision is to be read in collocation, with its companion words. The pristine principle based on the
maxim noscitur a sociis(meaning of a word should be known from its accompanying or associating words) has
much relevance in understanding the import of words in a statutory provision.10 Before the principle of noscitur a
sociis can be pressed into service, it must be shown that the words are employed in the same sense or that they
are susceptible of analogous meaning.11 Of course, it is not to be understood that the character of the expression
under consideration should be submerged by its association. If the legislative intent is clear and plain, the maxim
must give way. But when the import of doubtful, associated words can explain and limit the application of each
other.12
Crawford opines that like all other principles of construction, it is to be used only as an instrumentality for
determining the intent of the legislature where it is in doubt. If the intent of the legislature is plain, the maxim
noscitur a sociis must give way. It is permissible to determine the meaning of words by a reference to the
associated words, provided such reading of it is not inconsistent with the general intent and ambit of the rule. It is in
such cases that the maxim noscitur a sociis afford a guide and at times even a key to the ascertainment of the
legislative intendment. In order to ascertain the meaning of any word or phrase that is ambiguous or susceptible of
more than one meaning, the court may properly resort to other word with which the ambiguous word is associated
in the statute.13
The rule is stated by Maxwell in these words:14
Where two or more words, susceptible of analogous meaning, are coupled together, noscitur a sociis, they are understood
to be used in their cognate sense. They take as it were, their colour from each other, that is, the more general is restricted
to a sense analogous to the les general.
In Godfrey Philips v State of Uttar Pradesh,15 the Supreme Court was required to consider the legislative
competence of the statutes which empowered the state legislations to tax luxuries. The authority to impose the tax
was being drawn from Entry 62 of the state list. The entry allowed taxes to be imposed on luxuries including taxes
on entertainments, amusements, betting and gambling. The impugned legislations had imposed taxes on tobacco,
tobacco products and intoxicants. The Court held that Entry 62 of the State list did not permit the levy of tax on
goods or articles and that the taxes must be imposed on an activity rather than goods. The court reasoned by
relying on the fact that the words accompanying luxuries in the Entry were all activities and not goods. In arriving at
this decision, the Court held:
We are aware that the maxim ofnoscitur a sociismay be a treacherous one unless thesocietasto which the socii belong, are
known. The risk may be present when there is no other factor except contiguity to suggest thesocietas. But where there is,
Page 2 of 3
Noscitur a sociis
as here, a term of wide denotation which is not free from ambiguity, the addition of the words such as including is
sufficiently indicative of the societas. As we have said the word includes in the present context indicates a commonality or
shared features or attributes of the including word with the included.
In Ahmedabad Private Teachers Association v Administrative Officer,16 the provision in question was Section 2 (e)
i.e. the definition of employee in the Payment of Gratuity Act, 1972. The expression in controversy wasto do any
skilled, semi-skilled, or unskilled, manual, supervisory technical or clerical work occurring in the aforementioned
provision. The question before the Court was whether teachers were included in this definition of employees. The
Court held that definition did not include teachers as they were not employees who were skilled, semi-skilled or
unskilled. The Court observed that the expressions occurring in Section 2 (e) should be read in association with
each other and the meaning of each of these words should be understood by the company it keeps. The court
further observed that the actual order of the three words in juxtaposition also indicated that one takes colour from
the other.
In Pradeep Aggarbatti v State of Punjab,17 the Court, while interpreting various entries in the Punjab General Sales
Tax Act, 1948, held that Entries in the schedules of Sales Tax and Excise statutes list some articles separately and
some articles are grouped together. When they are grouped together, each word in the entry draws colour from the
other words therein. The controversy that the Court was trying to resolve was whether the expression perfumery in
Entry 16 (prior to 1979 amendment) included dhoop and aggarbati. The Court held that the concerned Entry of
Schedule A to the Punjab General Sales Tax Act, 1948, draws colour from the words cosmetics and toilet goodsthat
occur prior to it and hence, the expression perfumery in Entry 16 could only refer to articles of perfumery as they
were used as cosmetics and toilet goods. It had no application to dhoop and aggarbatti.
Rule Distinguished from Ejusdem Generis Rule
The principle of noscitur a sociis applies to sections and sentences in a manner similar to the application of the
doctrine of in pari materia to statutes covering the same subject matter. Likewise, the rule of noscitur a sociis and
the rule of ejusdem generis operate identically in most situations.18 Due to this conflated application, some judges
have not distinguished between the ejusdem generis doctrine and noscitur a sociis, applying them interchangeably
and referring to them in the same vein. The distinction between the doctrines of construction is that ejusdem
generis is applied where general term follows the expression of narrower connotation preceding it. On the other
hand, where two or more words which are susceptible of analogous meaning are compiled together i.e. noscitur a
sociis, they are understood to be used in their cognate sense.19 At one time, no doubt, the rule of ejusdem generis
was somewhat liberally applied, so as to construe general words as being cut down by the use of antecedent
specific words. However, the distinction between both doctrines is well delineated and described in contemporary
judgments.
Broom says:20
In the construction, of statutes, likewise, the rule noscitur a sociis is frequently applied, the meaning of a word, and,
consequently, the intention of the legislature being ascertained by reference to the context, and by considering whether the
words in question and the surrounding words are, in fact, ejusdem generis and referable to the same subject matter.
Table 2.1 provides other examples of cases where the courts have invoked the principles of non surplusage;
noscitur a socci and ejusdem generis to interpret the true purport of a statute.
In State of Bombay v Hospital Mazdoorsabha,21 the Court had to consider whether Hospital could be regarded as
an industry under Section 2 (j) of the Industrial Disputes Act, 1947. The Court held that hospitals were included
within the scope of industry. Hence, disputes between employees and the management of hospitals could be
considered as an industrial dispute within the Act. In arriving at this decision, the Court had to differentiate between
ejusdem generis and noscitur a sociis because the State claimed that the expression undertaking occurring in
Section 2 (j) ought to be readnoscitur a sociis as it occurred after the expressions trade and business. Hence, it
ought to given a limited meaning. The Court rejected this contention, and Gajendragadkar J. observed:
It must be borne in mind that noscitur a sociis is merely a rule of construction and it cannot prevail in cases where it is clear
that the wider words have been deliberately use in order to make the scope of the defined word correspondingly wider. It is
Page 3 of 3
Noscitur a sociis
only where the intention of the Legislature in associating wider words with words of narrower significance is doubtful, or
otherwise not clear that the present rule of construction can be usefully applied. It can also be applied where the meaning
of the words of wider import is doubtful; but, where the object of the Legislature in using wider words is clear and free of
ambiguity, the rule of construction in question cannot be pressed into service such doctrine is broader than the maxim
Ejusdem Generis.
A confused application of both doctrines is exhibited in Dhirendra Singh Bhadhoria v State of Madhya Pradesh,22
where the Madhya Pradesh High Court elaborated on the situations in which owners of a sick company could order
closure of a factory without seeking permission for the same. The court held that it was rightly contended on behalf
of the petitioners that the words exceptional circumstances used in the sub-section (7) of Section 25 (o) of the
Industrial Disputes Act, 1947, ought to be construedejusdem generis. The court reasoned that the words
exceptional circumstances had to be read ejusdem generis since the phrase is followed by the words accident in
the undertaking or death of the employer or the like. It would seem that the principle of noscitur a sociis was more
appropriate for interpreting exceptional circumstances whereas ejusdem generis could have been usefully
employed to interpret the phrase or the like.
8 .Sipra Dey v Ajit Kumar Dey AIR 1968 Cal 28 [LNIND 1967 CAL 66], (1987) 2 Cal LJ 446 [LNIND 1987 CAL 238],
(1988) 1 Hindu LR 735, (1988) 1 Cur CC 1034, (1988) 92 CWN 600; Jarecki v Searle 367 US 303, 6 L Ed 859, 863;
Neal v Clark 95 US 704, L Ed 586-87.
9 .Budhan Singh v Nabi Bux AIR 1962 All 43 [LNIND 1961 ALL 85], p 50; MK Ranganathan v Govt of Madras [1955] 2
SCR 374 [LNIND 1955 SC 41], p 386; Kesvananda Bharati v State of Kerala AIR 1973 SC 1461 [LNIND 1973 SC 154],
per AN Ray J.
10 .K Bhagirathi G Shenoy & Ors v KP Ballkuraya & Anor (1998) 4 SCC 135; CBI Ahd Patna v Braj Bhushan Prasad & Ors
(2001) 9 SCC 432 [LNIND 2001 SC 1239].
11 .Lokmant Newspapers Pvt Ltd v Shankar Prasad (1999) 6 SCC 275 [LNIND 1999 SC 592].
12 .Chhanalal v State of Gujarat AIR 1961 Guj 27 [LNIND 1960 GUJ 66], p 29.
13 . Crawford, Statutory Construction, art 190, pp 325-26; quoting Neal v Clark 95 US 704, 24 L Ed 586; Pattern v US 159
U Section 500, 40 L Ed 233.
14 . Maxwell, Interpretation of Statutes, eleventh edn, p 321; Baksi v Accountant-General AIR 1957 Pat 515, p 523;
Ambika Lal Das v Abhinandan Roy AIR 1964 Pat 90, (1963) BLJR 192; Ratan Lal Rastogi v Corpnfo Calcutta (1972) 76
CWN 288, p 293, per Talukdar J.
15 . (2005) 2 SCC 515 [LNIND 2005 SC 65].
16 . (2004) 1 SCC 755.
17 . (1997) 8 SCC 511 [LNIND 1997 SC 1487].
18 . Sutherland, Statutory Construction, third edn, vol 2, art 4908, p 395.
19 .Petlad Nagarpalika v RN Mills Co Ltd (1975) 16 Guj LR 193.
20 .Brooms Legal Maxims, Tenth edn, p 400.
21 . AIR 1960 SC 610 [LNIND 1960 SC 19], p 613; Melicio Fernandes v Mohan AIR 1966 Goa, 23, p 30, per Jelley JC;
Devendra M Surti v State of Gujarat AIR 1969 SC 63 [LNIND 1968 SC 148].
22 . 2004 (2) CLR 507.
End of Document
Reddendo Singula Singulis
NS Bindra
Aids
Reddendo Singula Singulis
The phrase, reddendo singula singulis, indicates that different words in one part of a section or statute are to be
applied respectively to the other portions or sentences to which they respectively relate, even if strict grammatical
construction should demand otherwise. Where a sentence contains several antecedents and several consequents,
they are to be read distributively. That is, the words are to be applied to the subjects to which they appear by
context most properly to relate and to which they are most applicable.23 Likewise, where the words under
consideration appear in different sections or are widely dispersed throughout an Act, the same principle will be
applied.24 The difficult problems of interpretation involved in the rule of reddendo singula singulis, may be almost
entirely eliminated by careful drafting. This problem can be resolved by drafting short sentences which contain a
single subject and a single object,.25
Crawford observed:
Obviously, the maxim reddendo singula singulis, finds its justification in our use of the English language. If this maxim, or
some principle closely allied to it, were not used, many legislative enactments would be filled with inconsistencies. and in
addition, it is doubtful whether the legislative intent could be ascertained, in many instances, at least, if every part of the
statute were considered separately and apart from the other parts instead of distributively and in relation to all of the other
words, phrases and clauses of the enactment.26
23 . Sutherland, Statutory Construction, third edn, vol 2, art 4918, p 423; Crawford, Statutory Construction, pp 332-33;
United State v Simms 1 Cranch 252, 2 L Ed 98.
24 . Sutherland, Statutory Construction, p 424.
25 . Sutherland, Statutory Construction, p 424.
End of Document
Ejusdem Generis
NS Bindra
Aids
Ejusdem Generis
Meaning
The word ejusdem generis means of the same kind or nature.27 The rule of ejusdem generis is that where
particular words are followed by general words, then the general words should not be construed in their widest
sense but should be held as applying to objects, persons or things or the same general nature or class as those
specifically enumerated,28 unless of course, there is a clear manifestation of a contrary purpose. To put it in a
slightly different language, where general and special words, which are capable of analogous meaning are
associated together, they take colour from each other and the general words are restrained and limited to a sense
analogous to the less general.29Ejusdem generis is not a rule of law but a rule of construction, which enables a
court to ascertain the intention of the legislature when the intention is not clear. It does not warrant that the court
subvert or defeat the legislative will by confining the operation of a statute within narrower limit than intended by the
law-makers. It should be resorted to not for the purpose of defeating the intention of the legislature but for
elucidating the words used in a legislation and to give effect to legislative intention. It is based on the idea that if the
legislature intended its general words to be used in an unrestricted sense so as to embrace the objects, persons or
things covered by the particular words, it would not have taken the trouble of using the particular words at all. The
principle underlying the doctrine is designed to reconcile an incompatibility between specific and general words in
view of other rules of construction, for instance, all words in a statute have, if possible, to be given due effect, the
legislature does not use superfluous words and all parts of a statute are to be considered together. It is indicative of
the assumed intention of a statute; it is not a rule of law, but a rule of construction. Its application is thus
presumptive and not preemptory. It may however be said that since the class of enumeration may often be an
artificial creation, the rule of ejusdem generis is at times described as a dangerous yardstick with which to measure
the legislative intent, and requires cautious application.30
The doctrine of ejusdem generis should not be invoked:31

(i) where the intention of the legislature is clear;
(ii) where it would result in disregarding the plain language of the statute;
(iii) where a perusal of the statute as a whole indicates that the legislature intended the general words to go
beyond the class specially designated;
(iv) where the specific things enumerated have no common characteristic and differ greatly from one another;
or
(v) where the particular words embrace all objects of their class so that the general words must bear a
different meaning from the particular words or be meaningless.
In Grasim Industries Ltd v Collector of Customs, Bombay,32 Supreme Court delineated the applicability of the
doctrine. The Court observed:
The rule is applicable when particular words pertaining to a class, category or genus are followed by general words. In such
a case the general words are construed as limited to things of the same kind as those specified. The rule reflects an
attempt to reconcile incompatibility between the specific and general words in view of the other rules of interpretation that
all words in a statute are given effect if possible, that a statute is to be construed as a whole and that no words in a statute
are presumed to be superfluous. The rule applies only when (1) the statute enumerates the 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
Page 2 of 13
Ejusdem Generis
general terms follow the enumeration and (5) there is no indication of a different legislative intent. If the subjects of
enumeration belong to a broad based genus, as also to a narrower genus there is no principle that the general words
should be confined to the narrower genus.
In Hyderabad (Sind) Eelctric Supply Co v Union of India,33 the Court had to consider Rule 18 (iv) of the Displaced
Persons (Verification of Claims) Supplementary Rules, 1954. The expression The Chief Settlement Commissioner
may call for the record of any verified claim and may pass any order in revision in respect of such verified claim in
such manner as he thinks fit, if he is satisfied that such order should be passed on one or the other of the following
grounds, namely (iv) any other sufficient reason. It was argued by the appellant Company that the expression ought
to be read ejusdem generis i.e. the jurisdiction of the settlement commissioner should be restricted to matters
relating to claims, and that the settlement commissioner had no jurisdiction to determine whether the Company was
a Displaced Company or not. The Court rejected this contention, and observed:
The rule of ejusdem generis should be applied or restricted meaning should be given to general words only when there are
dear indications in the particular provision under consideration or if it advances the general purpose and object of the
provision and not otherwise. The trend of authorities in recent times has been to apply this rule with caution he purpose of
statute may be defeated if restricted meanings are given to the general words used by the Legislature. Moreover, it is well
settled that this rule of ejusdem generis cannot be invoked at all if in the provision under consideration specific words
enumerate subjects which greatly differ from each other. After all it must not be forgotten that every expression used in the
statute must be construed ordinarily in its natural sense and general words should be given general meaning unless the
context indicates otherwise.
In Municipal Corporation of Greater Bombay v Bharat Petroleum Corporation Ltd,34 the question before the Court
was whether Section 328 of the Bombay Municipal Corporation Act, 1888, would accommodate signboards of
petroleum products as skylights within the provision. The relevant expression in Section 328 was sky-sign shall in
this section mean any word, letter, model, sign, device or representation in the nature of an advertisement,
announcement or direction, supported on or attached to any post, pole, standard frame-work or other support
wholly or in part upon or over any land, building or structure. On an invocation of the rules of ejusdem generis and
noscitur a sociis by the respondent to limit the definition under Section 328, the Court responded:
In construing the provisions of a statute or the words or language used, it has been always considered essential for the
Court normally to give effect to the natural or ordinary meaning of the words, keeping in view the subject matter with
reference to which the words are used, without ascribing to words used any absolute meaning as if in vacuo or without
reference to the context, particularly when such normal or ordinary understanding or construction conforms to and is
consistent with the purpose or object of the legislation. The principles of Ejusdem Generis / Noscitur a sociis have no
relevance to the case on hand and seem to have been over deployed, unnecessarily under scoring the actual or real
meaning of the words in the context and purpose of their use in the statutory provision of the Act.
The Court further observed that if the subjects of enumeration belong to a broad-based genus, as also to a
narrower genus, there is no principle that the general words should be confined to the narrower genus. Hence, the
Court held that signboards of petroleum products could be brought within the definition of skylights under Section
328.
In Commissioner of Central Excise v M/S Shital International,35 the assessee claimed an exemption from excise
duty based on a notification that allowed for exemption on excise duty for unprocessed knitted or crocheted fabrics.
The revenue argued that the processes of shearing and back-coating conducted by the assessee on its fabrics
rendered the products outside the ambit of the entry, and would instead fall within the ambit of any other process
(which was dutiable). The Court relied on the ejusdem generis principle in construing the expression or any other
process. Hence, the Court placed reliance on illustrative processes that were mentioned in the note, namely
bleaching, dyeing, printing, shrink proofing, tentering, heat-setting, crease-resistant processing. Applying the
ejusdem generis rule, the Court held that the expression any other process refers to a permanent or lasting change
being brought about in the fabric. Hence, the Court held that as the processes of shearing or back-coating were not
of the same nature as other processes mentioned in the said chapter, the assessee did not fall within the ambit of
any other process, and could avail of the exemption notification. In arriving at this decision, the Court observed:
General terms following particular expressions take their colour and meaning as that of the preceding expressions.
Therefore, in construing the words or any other process, the import of the specific expressions will have to be kept in mind.
General Words which Follow Controlled by Specific Words which Precede

Page 3 of 13
Ejusdem Generis
This doctrine is a variation of the doctrine of noscitur a sociis. Where general words follows specific words36 in an
enumeration describing the legal subject, the general words are construed to embrace only objects similar in nature
to those objects enumerated by the preceding specific words.37 It is not uncommon for the legislature to set out a
series of special words of a like nature and to close the enumeration with a general term, such as and all other, any
other, other persons, or business, other property and similar expressions. In fixing the meaning of such final general
terms, it is usual to restrict them to persons or things ejusdem generis with those specifically mentioned, that is,
persons or things, of the same kind with those designated by the preceding particular words. When, therefore, we
find general words following particular and specific words of the same nature, they must be construed as taking
their meaning from the specific words which precede them and must be restricted to the same genus.38 The rule of
ejusdem generis is that where general words follow particular and specific words of the same nature, the general
words must be confined to the things of the same kind as those specified. But it is clearly laid down by decided
cases that the specific words must form a distinct genus or category. It is not an inviolable rule of law but is only
permissible inference in the absence of an indication to the contrary.39
In Kalidas v State of Bombay,40Section 2 (2) of the Bombay Shops and Establishment Act, 1948, was under
consideration. The provision read as follows:
Shop means any premises where services are rendered to customers, and includes any office, a store-room, godown,
warehouse, or work-place, whether in the same premises or otherwise mainly used in connection with such trade or
business but does not include a factory, a commercial establishment, residential hotel, restaurant, eating-house, theatre or
other place of public amusement or entertainment.
The Court analyzed this provision to mean that trade or business contemplated by the definition was not any
business of selling wherever and however conducted, but only those trades where the selling is conducted on
defined premises. In the opinion of the Court, the rest of the definition merely linked the main definition to ancillary
places, such as store-rooms, godowns, work-places, etc, which were mainly used in connection with businesses. In
this context, the Court held that there was no jurisdiction for ignoring the limitation which the legislature had placed
on the main portion of the definition, and that the expression such related to a much wider classification of selling
which the main portion of the definition has deliberately excluded.
In Kamlesh Kumar Sharma v Yogesh Kumar Gupta,41 the word otherwise succeeding more specific words had to
be construed in the light of the rule of ejusdem generis. Thus where there was a provision for filling up vacancies
occurring due to death, resignation or otherwise from the existing select list under Section 13 (4) of Uttar Pradesh
Higher Education Services Commission Act, 1980, it was held that the giving of a wider interpretation to the word
otherwise would thwart the very object of the Act. It would permit the filling of the vacancy occurring which was
never advertised and a person in the select list panel, even though not applying for any vacancy, would be
absorbed. Therefore, in a vacancy occurring in the succeeding academic year question for which there is no
advertisement under the provision of Section 12 (4), the person on the panel list of preceding academic year in
question, cannot be absorbed or be appointed. The word otherwise had to be read as ejusdem generis i.e in groups
similar to death, resignation, long leave vacancy, invalidation, person not joining after being duly selected. In other
words, it would be a case of unforeseen vacancies which could not be conceived under Section 12 (2) . Hence the
word otherwise could not be given the wide and liberal interpretation which would exclude a large number of
expected applicants who could be waiting to apply for the vacancies occurring in the succeeding year in question.
In State of Karnataka & Others v Kempaiah,42 it was held that the definition of the word action in Section 2 (1) of
Karnataka Lokayukta Act, 1984, indicated that it encompassed administrative action taken in any form whether by
way of recommendation or finding or in any other manner, for instance, granting licenses or privileges, awarding
contract, distributing government land under statutory rules or otherwise or withholding decision on any matter etc.
The expression in any other manner took the last mentioned categories of administrative action in its fold. The
expression in any other manner contained general words which construed literally, ought to receive their full and
natural meaning but when they are followed by specific and particular words of the same genus, it will be presumed
that the legislature has used the general words in a limited sense to convey the meaning implied by specific and
particular words. This follows from application of the rule of ejusdem generis.
In A L Ranjane v Ravindra Eshwarnath Sethna,43 the question before the Court was whether the appellant could
be granted permission to run a tea-stall in accordance with Section 313 of the Bombay Municipal Corporation Act,
1888. The relevant provision read as follows:
No person shall, except with the written permission of the Commissioner (a) place or deposit upon any street or upon any
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open channel, drain or wall in any street (or in any public place) any stall, chair, bench, box, ladder, bale or other thing so
as to form an obstruction thereto or encroachment thereon
The court held thus:
This provision nowhere authorises the Commissioner to grant permission with respect to a stall/ structure of the type
described by the appellant. The structure for which permission can be granted by the Commissioner has to be similar to
items mentioned in the clause. Permission has to be for something which can be read as ejusdem generis with the items
mentioned in clause (a). The items mentioned in clause (a) indicate that they are of a temporary nature and are easily
removable as and when required. The structure in the present case is of a size which even if not permanently embedded on
road, cannot be said to be akin to items mentioned in clause (a). In the present case the structure is embedded on the road.
Its four poles are embedded in the concrete paving on the road. Moreover, the structure has water and electricity
connections and permanent water tank meant to store water and ensure permanent supply of water to the stall, is installed
on the side of the structure. It has shutters which enable locking of the stall whenever required... Section 313 totally bars
any stall or structure of the type put up by the appellant. So permission, if any, granted by the commissioner is violative of
the statute and is, therefore, illegal.
Specific Words which Precede General Words not Controlled by the Latter which follows the Former
The principle underlying this approach to statutory construction is that the subsequent general words were only
internal to guard against some accidental omission in the objects of the kind mentioned earlier and were not
intended to extend to objects of a wholly different kind. This is a presumption and operates unless there is some
contrary indication. But the preceding words or expressions of restricted meaning must be susceptible of the import
that they represent a class. If no class can be found, ejusdem generis rule is not attracted and such broad
construction as the subsequent words may admit will be favoured. If a class can be found but the specific words
exhaust the class, then rejection of the rule may be favoured because its adoption would make the general words
unnecessary; if however, the specific words do not exhaust the class, then adoption of the rule may be favoured
because its rejection would make the specific words unnecessary.44
McCardie J. observed in SS Magnhild (Owners) v Mclntyre Bros & Co:45
So far as I can see the only test seems to be whether the specified thing, which precede the general words can be placed
under some common category. By this I understand that the specified things must possess some common and dominant
feature.46
Reasons
The doctrine is an attempt to reconcile an incompatibility between specific and general words in view of other rules
of construction that all words in a statue are to be given effect, if possible; that parts of a state are to be construed
together; and that the legislature is presumed not to have used superfluous words. If the general words are given
their full and natural meaning, that is, the meaning they would receive in the abstract, they would include the objects
designed by the specific words, making the latter superfluous. If, on the other hand, the series of specific words is
given its full and natural meaning, the general words are redundant. The rule accomplishes the purpose of giving
effect to both the particular and the general words, by treating the particular words as indicating the class, and the
general words as extending the provisions of the statute to everything embraced in that class, though not
specifically named by the particular words.47 The doctrine of ejusdem generis was only a part of a wider principle of
construction, namely, that, where reasonably possible, some significance and meaning should be attributed to each
and every word and phrase in a written document.48
When the Doctrine does not Apply
Lokmat Newspapers Pvt Ltd v Shankar Prasad 49 forms a suitable instance for the non-application of the principle.
In this case, it was held that the principle of ejusdem generis could not be invoked in connection with Item 1 of
Schedule IV to the Industrial Disputes Act, 1947. The Act provided that during the pendency of the proceedings
before the conciliation officer, a workman could not be discharged or dismissed. The Court held that the word
discharge was a general word. It is followed by the word dismissal which contemplated only one category of cases
or situations where penalty is imposed by the employer on the workman concerned. The rule ofejusdem generis
would have applied if the word discharge represented a particular species belonging to the genus reflected by the
general word dismiss. In the opinion of the Court, this was a converse case where a general word discharge was
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followed by the word dismiss which was of a particular nature or pertained to a limited class or category of penal
situations. Hence, it was held that neither of them was a genus and none of them was a species of the very same
genus. The word discharge connoted an entirely different category of orders comprising both simpliciter discharge
orders not by way of penalty as well as discharge orders by way of penalty but not involving extremely pernicious
results flowing from such orders while the word dismiss was purely an order of penalty and that too of an extreme
type. Hence, the Court concluded by holding that the words discharge and dismissal as employed by the legislature
in Item 1 of Schedule IV covered different type of situations and circumstances under which they are passed.
A corollary of the ejusdem generis rule is that where general words are subjoined to specific words, the general
words will not include any objects of a class superior to that designated by the specific words.50 The operation of
general words has almost invariably been restrained when they follow closely upon words of a limited meaning,
upon words which refer to a particular class of things or persons, or which necessarily exclude such matters as are
of higher dignity.51 Thus, where a statute enumerates persons or things of an inferior rank, dignity, or importance, it
is not to be extended by the addition of general words to persons or things of a higher rank, dignity or importance
than that of the highest enumerated, if there are any of a lower species to which the general words can apply.52
This corollary is based on the ground that when the legislature enumerates objects in the descending order, objects
of a higher order are ordinarily named at the beginning of the enumeration, and, if not so named, are not intended
to be included within the statute at all. The general term is construed to embrace only those objects said by the
court to be of equal or inferior rank to those enumerated.53 But where the specification of those objects classed as
inferior is exhaustive and general words are added, then objects of a superior nature are embraced within the
meaning of the general words so as to prevent their rejection as surplusage.54 A class is an artificial creation to
provide ease in dealing with numerous items when similar characteristics occur. Thus, a class is a generalisation
which accurately or inaccurately associates items for a particular purpose or treatment. Without some objective or
purpose, classification is impossible. Consequently, the rule of ejusdem generis, depending as it does on pure form,
provides a dangerous yardstick with which to measure the statutory coverage which the legislature intended.55 If
no enumeration is attempted, if the terms preceding to the general terms are themselves general, or if the members
of the enumeration, although specific, are essentially diverse in character, the inference that the legislature attached
to the general term, a restricted meaning, ejusdem generis with preceding specific terms, does not arise. In these
instances, the general term remains unaffected by its association with the preceding words because the language
of the statute furnished no criterion by which to restrict its general words.56
In Ratansi Hirji v Emperor,57Section 412A (b) of the Bombay City Municipal Act, 1888, was under consideration.
The provision referred to the sale of milk, butter or other milk products. The question before the Court was whether
ghee would come under the provision. The Court held that if the words other milk products were to be used
ejusdem generis with butter, they would include products of milk that are direct products, such as butter, that is
curd, whey, cream, etc. However, the definition would not include ghee, which is not a direct product of milk but was
prepared out of butter which is a direct product of milk. The Court further held that the expression other milk
product, if construed strictly, and read ejusdem generis with milk and butter, would include products of milk
susceptible to speedy decay such as butter. Hence, ghee would not be included in the expression other milk
product.
In Re Hassan Saheb,58 sand was not deemed to be included in the expression other building material as it followed
the words bricks, stone, metal in Bye-Law No. 54, Ootacamund Municipality. The Bye-Law read as follows: Every
vehicle within the municipality for the conveyance of bricks, stone, metal or other building material The Court held:
sand may be used for many purposes unconnected with building and in the present case there appears to be no evidence
to show for what purpose the sand in the cart was destined. Apart from this the object of the section is obviously the
protection of the public streets from the obstruction caused by the accidental falling out of the contents of moving carts. In
the case of bricks, stone and metal (by which is presumably meant road metal), this obstruction is obvious, inevitable and a
serious nuisance. So much cannot be predicated of sand. No doubt the upsettal of a cartload of sand in the road would be
nuisance and obstructive to traffic, but the falling of sand in such small quantities as would be due to the absence of a
backboard to the cart could hardly be either.
In Le Mesurier v Wajid Hossain,59 the question before the Court was whether the expression for any other
reasonable cause in clause (f) of Section 13 of the Legal Practitioners Act, 1879, would be readejusdem generis to
apply only to misconduct of a strictly professional kind or to disqualifying cause of different kinds. Hill J., for the
majority, held as follows:
It is said, however, that inasmuch as the causes for suspension or dismissal specified in the clauses of section 13
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preceding clause (f) all involve professional misconduct in one form or another, the general words of the last mentioned
clause must, on the ejusdem generis principle, be restricted to misconduct, of which the practitioner has been guilty in his
professional capacity.it seems to me that it would be difficult to suggest other kinds of professional misconduct which are
similar in kind to those enumerated specifically in the clauses of section 13 preceding clause (f). I shall content myself with
referring to clauses (a) and (b). It seems to me impossible to find (a) a case of professional misconduct which resembles in
kind the taking of instruction from persons other than those from whom it is lawful to take them; or (b) a case of professional
misconduct which is similar in kind of fraudulent or grossly improper, and it is so throughout the series as it seems to me.
But I may add, in order to avoid possible misconception, that I think the general words of clause (f) are amply sufficient of
their own inherent force and effect to cover all case of professional misconduct, other than those enumerated in the section,
which would afforded reasonable ground for suspension or dismissal. Its application, consequently, would contravene the
more important rule of construction that all words are to be given effect.
The intent, that the general words have their full and natural meaning, regardless of their connection with a series of
specific words, may be found in the context of the statute as a whole, by a consideration of its purpose. Likewise,
the rule of ejusdem generis will not be applied if it results in a construction inconsistent with the statutes legislative
history, other controlling rules of construction, or statutes in pari materia.60 The question whether, when the
legislature has used general words in a statute, not following particular or specific words, those words are to receive
any (and, if so what) limitation, is one which may sometimes be answered by considering whether the intention of
the legislature on this point can be gathered from other parts of the statute.61
In Bhavanarayana v Venkatadu,62 the Court observed that to invoke the application of the ejusdem generis rule,
there must be distinct genus or category. The specific words must apply not to different objects of a widely differing
character but to something which can be called a class or kind of objects. The controversy before the Court arose in
the context of the expression other tenure in Explanation 1 to Section 3 (2)(d) of the Madras States Land Act, 1908.
The Court held that the expression could not be construed ejusdem generis with service tenure as one expression
could not constitute a genus for the application of ejusdem generis.
Similarly, in State v Jamnabai Manji Keshavji63 the Court held that the mention of a single species, for example
cisterns, would not constitute a genus due to which there was no scope for the application of the ejusdem generis
doctrine in construing the word fittings in the expression cisterns and fitting in Section 27 (1) of the Bombay
Municipal Corporation Act, 1888.
In Raja Bhanupratap Singh v Asisstant Custodian,64 the Court was called upon to interpret the expression any
other person in Section 10 (2)(n) of the Administration of Evacuee Property Act. The provision read as follows:
pay to the evacuee, or to any member of his family or to any other person as in the opinion of the Custodian is entitled
thereto, any sums of money out of the funds in his possession.
The Supreme Court held that the doctrine of ejusdem generis could not be invoked in categorising the powers of
the custodian in distributing sums due by the evacuee and that the custodian having funds in his hands is not
restricted in distributing them to persons who are members of the family of the evacuee and that persons other than
such members are entitled to receive at his hands.
In Maharashtra University of Health Sciences v Satchikitsa Prasarak Mandal,65 two lecturers, whose appointments
were not approved but who had continued to work as lecturers, brought their grievances before the Grievances
Committee of the University. One lecturer claimed that the resignation letter purportedly submitted by her, was not
actually submitted by her, and must have been the undated resignation letter the college made her sign at the
beginning of her service. She, along with the other lecturer, also complained of ill-treatment and sexual harassment
at the hands of the authorities in the college where they were teaching. The authorities argued that the Grievance
Committee had no jurisdiction to pass any orders in these matters as the two lecturers were not teachers under the
definition provided in the Maharashtra University of Health Sciences Act, 1998, as their appointment had not been
approved. Section 2 (35) of the Act read as follows: teachers means full time approved Demonstrators, Tutors,
Assistant Lecturers, Lecturers, Readers, Associate Professors, Professors and other persons teaching or giving
instructions on full time basis in affiliated colleges or approved institutions in the university.
The Court held that the definition of teacher under Section 2 (35) was wide enough to include even unapproved
teachers, as the second part of the definition dealt with other persons teaching or giving instructions on full time
basis. Hence, while approved teachers and other persons fell into two categories, both were covered by Section 2
(35) . The Court, in this regard, held that the word and before the expression other persons was disjunctive and
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indicated a class of people different from those whose appointments had been approved. The High Court, on an
application of the principle of ejusdem generis, had held that unapproved lecturers did not fall within Section 2 (35)
as the categories of instructors mentioned before in the definition them were all approved appointments. The
Supreme Court held that the ejusdem generis principle was applicable only in the absence of a contrary intention.
However, in the instant case the definition of under Section 2 (35) was split in two parts. The first part dealt with
enumerated categories but the second part which begins by the expression and other envisaged a different
category of persons. Hence, a contrary intention on the part of the legislature was evident in the definition. Thus the
Supreme Court held that the principle of ejusdem generis was inapplicable in the instant case. The Court observed:
The ejusdem generis principle applies only when a contrary intention does not appear. Where there is a different legislative
intent, the principle of ejusdem generis cannot be applied to make a part of the definition completely redundant.
Expressio Unius Est Exclusio Alterius
The express mention of one thing implies the exclusion of another.66 This maxim is a product of logic and common
sense. No doubt, this rule is neither conclusive nor of general application and is to be applied with great caution. It
may be applied only when in the natural association of ideas, the contract between what is provided and what is left
out leads to an inference that the latter was intended to be excluded.67 A specific exclusion may be clear from the
words of a statute even though no specific reference is made to the provision being excluded. Where there is an
express saving there must be an express exclusion.68 It therefore logically follows that if a statute enumerates the
things upon which it is to operate, everything else must necessarily, and by implication, be excluded from its
operation and effect. For instance, if the statute in question enumerates the matters over which a court has
jurisdiction, no other matters may be included. Similarly, where a statute forbids the performance of certain things,
only those things expressly mentioned are forbidden. So also, if the statute directs that certain acts shall be done in
a specified manner, or by certain person, their performance in any other manner than that specified, or by any other
person than one of those named, is impliedly prohibited.69 The maxim expressio unius est exclusio alterius, that is,
the express mention of one person or thing implies the exclusion of other persons or things, enunciates one of the
first principles not only as applicable to the construction of written instruments. If there be any one rule of law
clearer than another, it is this, that, where the legislature have expressly authorised one or more particular modes of
dealing with property, such expression always excludes any other mode, except as specifically authorised.70
Before the principle of construction expressio unius est exclusio alterius can be applied at all, the court must find an
express mode of doing something that is provided in a statute, which, by its necessary implication, could exclude
the doing of that very thing and not something else in some other way. There is no room whatever for applying
expressio unius rule to exclude what falls within an expressly provided legislative entry. While the maxim has
received considerable mention in legalistic thinking, it is not of legal origin, rather it is a product of logic and
commonsense.71
Historically, it was first applied to legislation where the statute designated a particular remedy for enforcing a right or
power, which did not previously exist.72 Its use was gradually extended, so that it has received mention in the
interpretation of practically all types of statutes, including legislation on taxation, administrative bodies, corporations,
contracts, marriage, dower, liens, exemptions, crimes, procedure, evidence and others.73 Where the intention
clearly reveals that the law-makers did not mean that express mention of one thing should operate to exclude all
others, of course, the principle is not applicable. Consequently where statutory language is plain and the meaning
clear, there can be no implied exclusion. In other words, the principle is to be used only as a means of ascertaining
the legislative intent where it is doubtful and not as a means of defeating the apparent intent of the legislature.74 It
is important to bear in mind that the method of construction summarised in the maxim cannot be applied without
limitation; for a failure to make an expressio complete may easily arise from the accidents of legislative procedure,
and it is common to find provisions put into statutes ex abundanti cautela and at the instance of parties interested.
Consequently, provisions sometimes found in statute enacting imperfectly or for particular cases only, that which
was already and more widely the law, have occasionally furnished ground for a specious argument, based on the
maxim, that an intention to alter the general law was to be inferred from the partial or limited enactment. But the
maxim is plainly inapplicable in such cases. Provisions sometimes found in statutes, enacting imperfectly or for
particular cases only that which was already and more widely the law, have occasionally furnished ground for the
contention that an intention to alter the general law was to be inferred from the partial or limited enactment, resting
on the maxim, expressio unius exclusio est alterius. But that maxim is inapplicable in such cases. The only
inference that a court can draw from such superfluous provisions (which generally find a place in Acts to meet
unfounded objections and idle doubt) is that the legislature was either ignorant or unmindful of the real state of the
law or that it acted under the influence of excessive caution.75 The point of view is lucidly explained in the following
passage from the judgment of Farwell LJ. In Lowe v Dorling & Son:76
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Acts of Parliament are not, in my experience, expressed with such accuracy and precision as to justify the court in striking
out unambiguous words in order to make a sentence grammatical or logical. The generality of the maxim express una facit
cessare tacitum,77 which was relied on, renders caution necessary in its application. It is not enough that the express and
the tacit are merely incongruous. It must be clear that they cannot reasonably be intended to co-exist.
In Colquohoun v Brooks,78 Wills J. says:
I may observe that the method of construction summarised in the maxim expressio unius est exclusio alterius is one that
certainly requires to be watched. Perhaps few so-called rules of interpretation have been more frequently misapplied and
stretched beyond their due limits. The failure to make the expressio complete very often arises from accident, very often
from the fact that it never struck the draftsman that the thing supposed to be excluded needed specific mention of any kind;
and the application of this and every other technical rule of construction varies so much under differing circumstances, and
is open to so many qualifications and exceptions, that it is rarely that such rule helps one to arrive at what is meant.
In Chautala Transport Society v State of Punjab,79 the Court had to consider certain provisions of the Motor
Vehicles Act, 1939. Section 64A provided for revision in cases where orders have been passed by the Regional
Transport Authority and where no appeal lied. Through an amendment, clause (h) was added by the State of
Punjab to Section 64 . This clause allowed for appeals to be brought before the State Controller. Hence, there was
a clear conflict between both provisions, as the amendment effectively allowed all matters to be appealable, thus
rendering the revisional jurisdiction redundant. The Court entered into an exercise of harmonious construction, and
applied the rule of exclusion in the process. The Court concluded that the import of the amendment was that cases
where appeal was allowed under the amendment was restricted to orders that were appealable under the Act. The
Court observed:
The rule of exclusion, as is well-known, is merely an auxiliary rule of construction adopted for the purpose of ascertaining
the intention of the law-giver. It is neither conclusive nor of universal application and is to be applied with great caution. It
may be applied only when in the natural association of ideas, the contrast between what is provided and what is left out
leads to an inference that the latter was intended to be excluded; it may accordingly be held inapplicable if there exists a
plausible reason for not including what is left out.
For latest cases relying on this maxim see Table 2.1
Casus Omissus
Casus omissus is point or case which has not been provided for.80 When a given state of affairs does not come
within the obvious meaning of the words of the statute, that is, when certain contingencies are not provided for, or
when the words do not embrace the particular question in hand, it is a case of casus omissus.81 We are not entitled
to read words into an Act of Parliament unless clear reason for it is to be found within the four corners of the Act
itself.82 The courts admittedly interpret law and do not make laws. Personal views of the judges presiding over the
court cannot be stretched to authorise them to interpret law in such a manner which would amount to legislation
intentionally left over by the legislature.83 In trying to solve a difficulty, courts must not proceed as mere
grammarians of the written law but must search for the true intention of the legislature. But the intention of the
legislature is not to be judged by what is in its mind but by its expression of that mind in the relevant statute itself.
The only repository of a legislatures intention is the language it has used, and in examining that language, it must
be presumed that the legislature knows the accepted vocabulary of legislative bodies and so knows what words are
required and considered apt to effect a particular result. If it has not made a provision or used words from which a
particular result can properly be found, courts will not be justified in finding it, simply because a contrary decision
would cause hardship to public. It is true that one must not expect in a statute the completeness and elaboration of
a deed, and where the minimum required to make a particular meaning which is obviously intended is found, effect
must be given to such meaning. But courts cannot dispense with even the minimum. Where even such minimum is
absent, courts must declare the deficiency and let it have its effect rather than strain themselves to set it right.
Thereby, not only will the courts prevent themselves from taking up the functions of the legislature but the
legislature may also profit because they may then take care to avoid such deficiencies in future.84
In RoshanLal v Gobind Raj,85 the Court had to consider the application of Section 3 of the Delhi Rent Control Act,
1958. Section 3 read as follows:Nothing in this Act shall apply-(a) to any premises belonging to the Government; or
(b) to any tenancy or other like relationship created by a grant from the government in respect of the premises taken
on lease, or requisitioned, by the Government. The question before the Court was whether Section 3 would also
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operate in cases of transition i.e. when the petitioner-auctioner had purchased the land but had not yet been issued
a sale certificate. The Court held that this was a situation of casus omissus, and in the transitional stage, Section 3
would not apply, and the petitioner-auctioner would still have the locus standi to bring a suit for ejectment. In this
context, the Court observed:
To my mind, it is a case not so much of construction of the statute as of casus omissus. So far as the language of Section 3
is concerned, it is unambiguous. As the premises belong to the Government, in the sense, that the ownership is not
transferred to the auction-purchaser, the Act cannot be held to apply This is a case where the transitional stage was not in
contemplation of the law makers, and therefore, no provision is made for the gap between the transfer of provisional
possession to the auction purchaser, and the transfer of title to him on the delivery of the sale certificate The general rule in
all such cases, is that a Court may interpret doubtful or obscure phrases in a statute so as to give effect to the presumed
intention of the legislature and to carry out what appears to be the general policy of the law. Courts cannot by construction
cure a casus omissus, however, just and desirable it may be to supply the omitted provision; and it will make no difference,
if it appears that the omission on the part of legislature was a mere oversight; and even if there be no doubt, that the Act
would have been worded otherwise, if the attention of the legislature had been drawn to the oversight at the time of the
passing of the Act.
Two principles of construction one relating to casus omissus and the other in regard to reading the statute as a
whole appear to be well-settled. Under the first principle, a casus omissus cannot be supplied by the court by
judicial interpretative process, except in the case of clear necessity and when reason for it is found in the four
comers of the statute itself, but at the same time a casus omissus should not be readily inferred and for that
purpose all the parts of a statute or section must be construed together and every clause of a section should be
construed with reference to the context and other clauses thereof so that the construction to be put on a particular
provision makes a consistent enactment of the whole statute.86
Court cannot Supply Casus Omissus87
Omission can only be supplied by statute or statutory action. The court cannot put into the Act words which are not
expressed, and which cannot reasonably be implied on any recognised principles of construction. That would be a work of
legislation, not of construction, and outside the province of the court.88 Omissions are not to be lightly inferred or provided
for. The court, it is a firmly established rule, is not at liberty to read words in a statute unless clear reason for it is found
within the four comers of the Act itself or unless it is necessary to do so to give the language sense and meaning in its
context. While the court will not wrestle with the language of a statute and will not create or supply a casus omissus, it must
at the same time see that the true meaning of any passage is to be found not merely in the words of that passage but in
comparing it with other parts of the law, ascertaining also what were the circumstances with reference to which the words
were used and what was the object appearing from those circumstances which the legislature had in view.89 It is an
accepted proposition that no rule of interpretation can be invoked for the purpose of including cases plainly omitted from the
natural meaning of the words. It is not for the court to supply the omission; it can only point out the omission. It is for the
legislature to consider and decide whether the omission should be supplied.90 Law is an objective thing and stands where
the legislature has made it stand. A court of law can take a reasonable view of its provision in such a manner as will not
make the very purpose of the Act infructuous. So, where a municipal statute fixes an outside limit for the terms of
commissioners once elected, but fails to make provision as to what will happen if the successor body does not come into
existence before the expiry of the life fixed for the commissioners previously elected, courts have no power to extend the
life of the old body if the law makes no provision therefore.91
A statute may not be extended to meet a case for which provision has clearly and undoubtedly not been made
When an Act contains special saving of another Act, and omits all allusion to a third Act in pari materia, it is safer to
presume that the omission is deliberate than that it is due to forgetfulness, or made per incuriam. Even if the
omission flows from forgetfulness, those who claim the benefit of the Act, the reservation of which is omitted, cannot
succeed.92 Under the guise of effectuating the policy and intent of the legislature, courts cannot unduly enlarge the
scope of the statutory provision, especially when it has the effect of curtailing the right or the freedom of a person to
stand for election.93 Words may not be supplied in a statute where the statute is intelligible, without the addition of
the alleged omission, or where the omission is left to provide for exigencies which may arise or where the court
simply would think it wise to do so, or where the omission is not plainly indicated, or where words are purposely
omitted, or where addition of words could partially defeat the purpose of the statute, or simply because hardship will
result, or where the addition will make the statute unconstitutional.94 Even if the words used in an Act of Parliament
are so wide as to include cases which were probably not meant to be included, or so narrow as to exclude cases
which were probably not meant to be excluded, the court must give effect to those words according to the ordinarily
rules of construction.95
Page 10 of 13
Ejusdem Generis
Earl Loreburn observed in Bristol Guardians v Bristol Waterworks Co:96
Now it is one thing to introduce terms into an Act of Parliament in order to give effect to its clear intention by remedying
mere defects of language. It is quite another thing to imply a provision which is not in the statute in order to remedy an
omission, without any ground for thinking that you are carrying out what Parliament intended To insert such provision would
be simply making, not interpreting, the law.
Effect of Casus Omissus
Where, however, a casus omissus does really occur, either through the inadvertence of the legislature, or on the principle
quod semelautbisexistitpractereunt legislatores,97 the rule is that the particular case that was left unprovided for, must be
disposed of according to the law as it existed before such statute.98 In Munnalal v Nazim, Ecclesiastical Department,99
Siddique J observed:
The omission (if any) in the Act will not justify a rule in excess of the law in general. It was certainly obvious that
these cases will arise, but instead of providing for the case of tenancy in the Act, the matter was left out and the
omission there (intentional or accidental) was covered by the rules. Casus omissus ought not to be created by
interpretation except in some cases of strong necessity. Where, however, a casus omissus does really occur, the
rule is that the particular case, thus left unprovided for, must be disposed of according to the law as it existed before
such statute.
In Rebati Rangan v State of Bihar,100Section 4 (f) of the Bihar Land Reforms Act, 1950 provided that nothing
contained in the Act should be deemed to authorise the Collector to take charge of any institution religious or
secular, of any trust or any building connected therewith or to interfere with the right of a trustee to apply the trust
money to the objects of the trust. The controversy came up in context of Section 33 of the Act which provided for
the payment of interim compensation in case of acquisition of land by the Collector. The petitioners argued Section
33 was not applicable to the case of a religious or charitable endowment since the table only makes provision for ad
interim payments in the case of proprietors to whom a lump sum compensation is payable. However, religious and
charitable endowments were not entitled to lump sum compensation. Hence, the essential argument from the
petitioners was that the rates under Section 33 were not applicable to such endowments. The Court held that this
was a case of casus ommisus, where the legislature had not laid down a mechanism for the payment of
compensation under Section 33 for the aforementioned endowments. In this context, the Court observed:
In a case of this description the principle to be applied is well known, if the statute is enacted tor the purpose of enabling
some action to be taken but the statute omits to mention expressly some important detail essential for the proper and
effectual performance of the work which the statute contemplates the Court is at liberty to supply the casus omissus and to
infer that the statute by implication empowers some detail to be carried out.
In Jacob Mathew v State of Punjab,101 the Court had to decide on the standard of negligence in Section 304A of
the IPC, 1860. The expression did not include the expression gross. However, the factor of grossness or degree
assumed significance to draw a distinction in negligence actionable in tort and negligence punishable as a crime.
Hence, for negligence to amount to criminal negligence, it had to be gross or of a very high degree. The Court held
that the absence of such standards was a circumstance ofcasus omissus, and standards had to be supplied by the
Court. Hence, it was held that the expression rash or negligent act, as occurring in Section 304A, had to be read as
qualified by the word grossly.
For latest cases on casus omissus see Table 2.1
27 .Municipal Corpn v Saw Willie AIR 1942 Rang 70, p 72; Wharton, Law Lexicon, fourteenth edn, p 362; Anirudh Prasad
Choudhary v High Court of Judicature at Patna (1996) 1 BLJ 572 (Pat); relying on Housing Board of Haryana v
Haryana Housing Board Employees Union (1995) (8) JT 37 (SC).
28 .Rajaram Baijnath v Nandkishore Sheobux Rai (1975) MP LJ 419.
29 .Dinkuray, Reghunath v State AIR 1960 Guj 31; Ganesha Ram v Collector AIR 1968 Raj 72, p 76, per Mody acting CJ;
Burmah-shell Oil Storae and Distribution Co of India v State of Madras (1968) 21 STC 227 [LNIND 1967 MAD 139]
(Mad); Gwalior Sugar Co Ltd v Shyam Charan Gupta AIR 1969 MP 74 [LNIND 1968 MP 118]; Petlad Nagarpalika v
Page 11 of 13
Ejusdem Generis
RN Mills Co Ltd (1975) 16 Guj LR 193; Sankaran Nair v Madhavan Pillai (1976) Ker LT 837; KP Poulose v Asst Labour
Officer (1975) Ker LT 281.
30 .Amarchandra v Collector of Excise AIR 1972 SC 1863 [LNIND 1972 SC 280], (1972) 2 SCC 442 [LNIND 1972 SC
280], per Dua J; Housing Board of Haryana v Haryana Housing Board Employees Union & Ors (1994) SCC 278 (L&S),
(1995) Guj LH 780; referring to KK Cochunni v State of Madras AIR 1960 SC 1080 [LNIND 1960 SC 436], 1960 Ker LT
71, (1966) Ker LJ 1077; Thakur Amar Singhji v State of Rajasthan AIR 1955 SC 504 [LNIND 1955 SC 36]; Tribuwan
Prakkash Nayyar v Union of India AIR 1970 SC 904, (1969) 3 SCC 9; Gurubachan Singh v Ichhar Singh (1965) ILR 1
Punj 532; Calcuttawala SR Sivagwn v Sales-tax Commr, Madhya Pradesh AIR 1967 MP 180; East India Hotels Ltd v
Corpn of Calcutta AIR 1988 Cal 104 [LNIND 1986 CAL 295]; referring to Jageram v State of Haryana (1971) 1 SCC
671 [LNIND 1971 SC 150] SC 1033; Amar Chandra Chakraborty v Collector of Excise, Tripura, AIR 1972 SC 1863
[LNIND 1972 SC 280], (1972) 2 SCC 442 [LNIND 1972 SC 280].
31 .State of Punjab v Mehrachand AIR 1959 Punj 222, p 224; Maharashtra State Electricty Board v Talegaon Dabhade
Municipality AIR 1967 Bom 75 [LNIND 1965 BOM 57], (1966) 68 Bom LR 169: a single word cannot generally
constitute a genus; Roshan Lal v Regional Tpt Authority AIR 1964 Punj 152-67, per KC Das Gupta J; Satrughana Sahu
v Stte of Orissa AIR 1958 Ori 187, p 190; following Lilavati Bai v State of Bombay AIR 1957 SC 521 [LNIND 1957 SC
25], p 529.
32 . (2002) 4 SCC 297 [LNIND 2002 SC 260].
33 . AIR 1959 Punj 199, p 202.
34 . (2002) 4 SCC 219 [LNIND 2002 SC 249].
35 . (2011) 1 SCC 109 [LNIND 2010 SC 1022]
36 . Words are general or special relatively. A word specific in one context may be general in another context. For the
purpose of the doctrine of ejusdem generis, a word is specific when it falls within the ordinary meaning of a second
word; the first word is specific in relation to the second word; the second word is general in relation to the first word:
Sutherland, Statutory Construction, third edn, vol 2, art 4909.
37 . Sutherland, Statutory Construction, third edn, vol 2, art 4909; quoting the following cases as statue and applying the
rule: Gunerstad v Price (1895) LR 10 Exch 65; Willis v Thorp (1875) LR 10 QB 383; Williams v Golding (1865) LR 1 CP
69; Rex v Wallis (1793) 101 ER 210; Clark v Gaskarth (1818) 129 ER 450; Bramwell v Pennock (1827) 109 ER 823;
Sabdmian v Breach (1827) 108 EL 661; Peate v Dicken 149 ER 1145; Kitchen v Shaw 112 ER 280; ex p John Hill 172
ER 397; Radmorshire Co Roads Board v Evans (1863) 122 ER 151; Rex V Cleworth (1869) 122 ER 707; Somnath v
Dwarka Prased (1963) Raj LW 40.
38 .Ramdayal v Sheodayal (AIR 1939 Nag 186, p 189, (1939) ILR Nag 250; Balmokand Lall v Jurjiuhdun Roy (1883) ILR 9
Cal 271, p 274; Kali Charan v Kesho Prasad AIR 1919 Pat 541; Chhaju Ram v Neki (1922) ILR 3 Lah 127, p 133 (PC):
just and equitable in the provision relating to winding-up companies; Spackman s case (1849) 84 RR 41; Re Anglo-
Greek Steam Co (1886) LR 2 Ed 1; Re German Date Coffee Co (1882) 51 LJ Ch 564; Thomas v St Joseph Tile Works
Ltd AIR 1957 Tr&Coch 6, p 8.
39 .Kochuni v State of Madras and Kerala AIR 1960 SC 1080 [LNIND 1960 SC 436], p 1103; Ratanlal Hira Singh v RTA
AIR 1934 Punj 152; Melicio Fernandes v Mohan Nair AIR 1966 Goa 23.
40 . AIR 1955 SC 62 [LNIND 1954 SC 147].
41 . (1998) 3 SCC 45 [LNIND 1998 SC 175].
42 . (1998) 6 SCC 103 [LNIND 1998 SC 653].
43 . AIR 2003 SC 300 [LNIND 2002 SC 731], (2003) 1 SCC 379.
44 .Francis Bennion, Statutory Construction, pp 829-30.
45 . [1920] 3 KB 321.
46 .Siddeshwari Cotton Mills Pvt Ltd v Union of India AIR 1989 SC 1019 [LNIND 1989 SC 28], (1989) 2 SCC 458 [LNIND
1989 SC 28], (1989) (1) JT 150 (SC), (1989) 21 ECR 7 [LNIND 1989 SC 28], (1989) 39 ELT 498 [LNIND 1989 SC 28],
(1989) Cr LR 221 (SC), (1989) 37 DLT 383 [LNIND 1989 SC 28], (1989) 28 STL 161; Mumbai Kamgar Sabha v State of
Maharashtra (1991) 1 Bom CR 422 [LNIND 1990 BOM 484]; H&R Johnson (India) Ltd v Municipal Commr, Thane
Municipal Corpn (1993) 3 Bom CR 356 [LNIND 1993 BOM 48].
47 . Sutherland, Statutory Construction, third edn, vol 2, art 1909, pp 397-99.
48 .Brownsea Haven Properties Ltd v Poole Corpn (1958) 2 WLR 137; Union of India v Usman (Mhd) AIR 1965 All 269, p
272, per Chandra J.
49 . (1999) 6 SCC 275 [LNIND 1999 SC 592].
Page 12 of 13
Ejusdem Generis
50 . Sutherland, Statutory Construction, third edn, vol 2, art 4911, p 401; Archbishop of Canterbury s case (1596) 76 ER
519.
51 . Wilberforce, Statute Law, pp 179-80.
52 . Crawford, Statutory Construction, p 329, art 191.
53 . Sutherland, Statutory Construction, third edn, vol 2, art 491, pp 401-03; Craies, Statute Law, fifth edn, p 171; Casher v
Holmes 9 LJ 280 (IS): held that the general words all other metals following the particular words copper, brass, pewter
and tin, in the local Act of 6 Geo 4 Ch CLXX did not include silver or gold, those latter metals being of superior kind to
the particular metals mentioned in this Act; but the insertion of such words as or things of whatever description in a
definition of words would exclude the ejusdem generis rule; Attorne-General v Leicester Corpn [1910] 2 Ch 359, p 369.
54 . Sutherland, Statutory Construction, third edn, vol 2 art 4911, p 403; Wilberforce, Statute Law, p 184.
55 . Sutherland, Statutory Construction, third edn, vol 2, art 4910, p 400; Bhojraj Singh v State of Bombay AIR 1960 Guj
31, p 34, per Desai CJ; Commr of Income-tax v Anglo-India Jute Mills Co Ltd (1994) 72 Taxman 49 (Cal).
56 . Sutherland, Statutory Construction, third edn, vol 2, art 4912, p 414.
57 . AIR 1929 Bom 274, p 278; Clark v Gaskarth (1818) 129 BR 450, per Parker J: it was contended under Statute II;
George 2, c 19, s 8 which empowered the landlord to seize as a distress for rent corn, grass or other product
whatsoever which shal be growing on any part of the estate demised, that trees and shrubs came within that
description and were also liable to be distrained for rent, it was held that the word product did not extend to trees and
shrubs growing in a nursery, but it was confined to products of a similar nature with those specified in that section,
namely, corn or grass to all of which the process of becoming ripe, and of being cut, gathered, make, and laid up when
ripe, was incidental: R v Hodges (1829) 20 RR 465, 1 Moo & M 341.
58 . 39 IC 1004 (Mad); National Assn of Local Govt Officers v Bolton Corpn [1943] AC 166, p 186; R v Dickenson(1857) 26
LJMC 204.
59 . (1902) ILR 29 Cal 890, pp 901 and 907; District Judge of Kistna v Hanumanulu (1916) ILR 39 Mad 1045.
61 . Craies, Statute Law, fifth edn, p 171.
62 . AIR 1954 Mad 415 [LNIND 1953 MAD 154].
63 . AIR 1955 Bom 280-81.
64 . AIR 1966 SC 245 [LNIND 1965 SC 178].
65 . (2010) 3 SCC 786 [LNIND 2010 SC 202].
66 .Thomson v Hill (1870) LR 5 CP 564; Re Kerala Education Bill AIR 1958 SC 956, p 992; State of Kerala v Malayalam
Plantations Ltd (1980) Ker LT 976.
67 .State of Kerala v Malayalam Plantations Ltd (1980) Ker LT 976: AIR 1981 Ker 1.
68 .PS Sathappan v Andhra Bank Ltd (2004) 11 SCC 672 [LNIND 2004 SC 1053].
69 . Crawford, Statutory Construction,art 195, pp 334-35; Sutherland, Statutory Construction,art 4915, p 414; Habib Seth v
Kashinath(1968) All LJ 446; Ramchandra Keshav Adke v Govind Joti Chavare (1975) Mah LJ 515 (SC); Asst Collector
of Central Excise, Calcutta v National Tobacco Co of India Ltd (1972) 2 SCC 560 [LNIND 1972 SC 357].
70 .Blackburn v Flavelle [1881] 6 App Cas 628, p 634; Krishna v Nilamadhab AIR 1923 Cal 66, p 69; Notandas v
Prihadayal AIR 1921 Sind 38, p 41.
71 . Sutherland, Statutory Construction, third edn, vol 2, art 4916, p 415; relying on Brooms Legal Maxims, p 453.
72 . Sutherland, Statutory Construction, pp 415-16; quoting Earl of Southampton s case 73 PR 109; Townsend s case
[1954] 75 ER 173; Caste s case [1620] 79 ER 555; Rex v Wright [1620] 79 ER 411; Rex v Robinson [1759] 97 ER 568.
73 . Sutherland, Statutory Construction, pp 416-17; quoting Case v Kelly [1890] 133 US 21, 33 L Ed 513: private
corporations; Ford v United States 273 U Section 593.
75 . Maxwell, Interpretation of Statute, tenth edn, pp 316-17, (now eleventh edn, pp 306-07); quoted in Harish Chandra v
Riloki Singh AIR 1957 SC 444 [LNIND 1956 SC 116], p 454.
76 . [1906] 2 KB 772, p 784.
77 . A thing expressed puts an end to tacit implication: Trayner Leg Max quoted in Iyers Lexicon, p 420.
Page 13 of 13
Ejusdem Generis
78 . [1887] 19 QBD 400, p 406; Mukanda Das v Bidhan Chandra AIR 1960 Cal 67 [LNIND 1959 CAL 127].
79 . AIR 1962 Punj 94, p 98.
80 . Wharton, Law Lexicon, fourteenth edn, p 167.
81 .Bhadramma v Kotam Raj 1955 Crilj 1488.
82 .Vickers v Evans (1910) 79 LJKB 955, per Lord Loteburn LC; Commr of Income-tax, Bombay v Kishore Singh (1950)
ILR Bom 102, (1960) 62 Bom LR 680; Commr of Income-tax v National Taj Traders AIR 1980 SC 485 [LNIND 1979 SC
471]; Ravichandran K v Metropolitan Transport Corporation Ltd (2004) 3 LLJ 152 Mad.
83 .Ajaib Singh v Sirhind Co-op Marketing-cum-Processing Service Society Ltd &Anor (1999) 6 SCC 82 [LNIND 1999 SC
366].
84 .Tarak Chandra v Ratanlal AIR 1957 Cal 257 [LNIND 1956 CAL 180], p 261.
85 . AIR 1963 Punj 532, p 537, per Tek Chand J; Prem Nath v Prem Nath AIR 1963 Punj 62, p 65, per Tek Chand J; Ebert
v Poston 69 L Ed 435, per Brandeis J: a casus omissus does not justify judicial legislation; United States v Weitzei 62 L
Ed 872, p 874, 246 U Section 533, p 543.
86 .Ramesh Mehta v Sanwal Chand Singhvi (2004) 5 SCC 409 [LNIND 2004 SC 529]: court should not so interpret a
statute as to create a casus omissus.
87 .Rashidkhan Osman khan v Maltibai (1980) Mah LJ 428 [LNIND 1979 BOM 195]; Puranmal Fatehchand Saraoji v
Sushila Devi Kaushal Chand Balder (1979) MP LJ 58.
88 .Kamalaranjan v Secy of State AIR 1938 PC 281, 283, 66 IA 1, 10; Piare Singh v Mula Singh (1923) ILR 4 Lah 323, p
326: it may be a casus omissus but it is obviously for the legislature and not for the court to remedy the defect.
89 .Jana v Parvati AIR 1958 Bom 346 [LNIND 1957 BOM 200]-48.
90 .Raghavan Nair v Narayana Panickar AIR 1977 Ker 11 [LNIND 1976 KER 84].
91 .Kamalcharan Bhattacharya v Om Prakash Gupta (1965) Cal LJ 78.
92 . Craies, Statute Law, fourth edn, p 71 (fifth edn, p 68); quoting inter alia Re Williams (1887) 36 Ch D 573, p 532.
93 .Dantu Bhaskararao v CVK Rao AIR 1964 AP 77 [LNIND 1963 AP 77], p 83, per Chandra Reddy CJ.
95 . Wilberforce, Statute, Law, p 24; quoting Notley v Buck 8 B&X 164; Nixon v Philips 7 Ex 192.
96 . [1914] AC 379, p 388; followed in Foulkes v Suppan Chttiar AIR 1951 Mad 296 [LNIND 1949 MAD 274], p 305.
97 . The legislature takes no notice of that which is only of occasional occurrence: Iyer, Law Lexicon, p. 1070.
98 .Brooms Legal Maxims, tebthedn, p 360; quoting R v Denton 34 LJ 12 (MC), 11 LT 371; Cobb v Mid Wales Rly Co LR 1
QB 343, pp 348-49; Moulvi Hussein Haji v State of Gujarat (2004) 6 SCC 672 [LNIND 2004 SC 1560]; State of Kerala v
PV Neelakandan Nair (2005) 5 SCC 561 [LNIND 2005 SC 520];
99 . AIR 1950 Hyd 5, 8-9; R v Cleworth(1864) 4 B&S 927, p 934: per Blackburn J if it appears that the class or thing which
it is sought to bring within the Act, was known to the legislature at the time of its enactment, and that class or thing is
omitted, it must be supposed to have been omitted intentionally.
100 . AIR 1953 Pat 121; Swarnavar Nashar v State of Mysore AIR 1963 Mys 49; Banwari Lal Nagpal v State of Rajasthan
(1982) Raj LW 663.
101 . (2005) 6 SCC 1 [LNIND 2005 SC 587].
End of Document
Conclusion
NS Bindra
Aids
Conclusion
The conclusions reached by courts on: the definitions provided in statutes; the relationship between statutory
definitions and statutory context; the various word sequences. All these varied rules have in the main been devised
to fathom legislative intention. It is the same legislative intention which causes courts to read words into statutes
when they find inexplicable omissions.
Table 2.1 Use of Internal Aids to Interpret Statutes
(2003-2013)
S. No Name of the Case Concerned Context of the Internal aid Decision of the
and citation Statute and case considered for Court
Provision interpretation
1. Commissioner of Finance Act, 1983- It was claimed by Statement of The Court held
Wealth Tax v Section 40 and the assessee Objects and that the exemption
Cosmopolitan Wealth Tax Act, before the revenue Reasons under clause (vi)
Hospitals, [2003] 1957- Section 17 authorities that it is to section 40 (3) is
133 TAXMAN 505 conducting the available only in
(Ker) business of respect of
running the hospitals which
hospital and that are mainly used by
the building and a company for the
land used by the welfare of its
assessee for employees and
running the since the hospital
hospital are is not intended nor
entitled to used for the
exemption under welfare of its
the provisions of employees, the
section 40 (3)(vi) building and the
of Finance Act, appurtenant land
1983. The claim of belonging to the
assessee was company are liable
rejected by the to be included in
revenue the net wealth
authorities. The under the
exemption under provisions of
clause (vi) to section 40 (2) read
section 40 (3) is with section 40 (3)
available only in of the Finance Act,
respect of 1983.
hospitals which
are mainly used by
a company for the
Page 2 of 14
Conclusion
welfare of its
employees and
since the hospital
is not intended nor
used for the
welfare of its
employees, the
building and the
appurtenant land
belonging to the
company are liable
to be included in
the net wealth
under the
provisions of
section 40 (2) read
with section 40 (3)
of the Finance Act,
1983.
2. Lakeshwari Arbitration and Under Clause 23 Expressio Unius The Court

Builders Pvt. Ltd. v Conciliation Act, of a contract est Exclusio interpreted the
State of 1996 Section 11 signed between Alterius Clause to mean
Jharkhand, 2006 (6) the parties, an that there was an
(3) JCR 353 (Jhr) arbitration extant arbitration
agreement had agreement, and
been entered into. held that where
The petitioner there was an
sought to enforce express mention in
the arbitration the instrument of a
agreement and certain thing, it
applied to the High would exclude any
Court to appoint other thing of a
an arbitrator, similar nature. The
whereas the Court observed
respondent-State that it was a well
claimed that the settled principle of
arbitration law that when an
agreement had terms of a contract
been cancelled by or of a grant, or of
government any other
notification. disposition of
property, had been
reduced to the
form of a
document or of a
contract then no
evidence shall be
given in proof of
the terms of the
contract except the
document itself.
Hence, in the
opinion of the
Court, if a
particular clause,
although
incorporated but
excluded from the
contract, parties
against whom it is
Page 3 of 14
Conclusion
to be operated
must be given
reasonable notice
of its non-
existence.
3. Southern Electricity Act, Section 20 (1) of Casus omissus The Court held
Petrochemical 2003 - Section 20 the 2003 Act that the intention
Industries Co. Ltd (1) repealed the The of the legislature
v Electricity Tamil Nadu must be gathered
Inspector, (2007) 5 Electricity Duty from the words
SCC 447 [LNIND Act, 1939 and the used in the statute
2007 SC 681] Tamil Nadu at the first instance
Electricity and only when
(Taxation and such a rule would
Consumption) Act, give rise to
1962. A proviso anomalous
followed the situation, the court
repeal, saving may take recourse
particular to purposive
proceedings from construction. It
the repeal. It was was also a well
argued by the settled principles
petitioner that the of law that casus
Court ought to add omissus could not
the expression be supplied.
unless a different
intention appears
to make the repeal
effective and to
achieve the
purpose of the Act.
4. Union of India v Central Excise Act, The question Casus omissus The Court held
Dharamendra 1944 - Section considered the that the levy of
Textile 11AC Court was whether penalty under
Processors, (2008) while imposing a Section 11AC was
13 SCC 369 penalty on persons a mandatory
[LNIND 2008 SC who evaded penalty and
1947] payment of tax, a legislative casus
requirement of omissus could be
mensrea ought to supplied by judicial
be read as an interpretative
essential process. Hence, a
ingredient and requirement of
whether there was mensrea could not
scope for levying be imported into
penalty below the the section.
prescribed
minimum.
5. Commissioner of Income-Tax Act, The Court had to Noscitur a socii The Court held
Income Tax v 1961 - Section interpret the that the expression
Bharti Cellular 194J expression fees for fees for technical
Ltd., [2008] 175 technical services services as
TAXMAN 573 occurring in the appearing in
(Delhi) provision to decide Section 194J had
whether payments the same meaning
made by telecom as given to the
companies as port expression in
/ inter-connected Explanation 2 to
charges would Section 9 (1)(vii) of
Page 4 of 14
Conclusion
qualify as technical the said Act. In the

services under the said Explanation,
provision, and the expression
would hence be fees for technical
liable for tax services meant
deductible at any consideration
source (TDS) for rendering of
deductions. any managerial,
technical or
consultancy
services. The word
technical was
preceded by the
word managerial
and succeeded by
the word
consultancy. Since
the expression
technical services
was in doubt and
is unclear, the rule
of noscitur a socii
s was considered
to be applicable by
the Court. The
Court observed
that the word
technical would
take colour from
the words
managerial and
consultancy,
between which it
was sandwiched.
The Court further
observed that that
a managerial
service would be
one which pertains
to or has the
characteristic of a
manager. It is
obvious that the
expression
manager and
consequently
managerial service
has a definite
human element
attached to it.
Hence, the
expression in
question would
also require a
human element for
Section 194J to
apply. Hence, in
this case, the
Court held that the
services were not
technical services
Page 5 of 14
Conclusion
within the meaning

of the provision.
6. Krushna Chandra Securitization and Under Section 13 Expressio Unius The Court held on
Sahoo v Bank of Reconstruction of (4), the Bank was est Exclusio the basis of the aid
India, AIR2009 Ori Financial Assets supposed to Alterius to interpretation
35 and Enforcement respond to the that when the
of Security Interest objects raised by statute provided
Act, 2002 - the petitioner on for a particular
Sections 13 (4), 13 receipt of a notice procedure, the
(3-A) under Section 13 authority had to
(2) . However, the follow the same
Bank ignored the and could not be
objections, and permitted to act in
proceeded to contravention of
commence the the same. The
procedure for Court observed
enforcement of that it had been
security interest. the hitherto
uncontroverted
legal position that
where a statute
requires to do a
certain thing in a
certain way, the
thing must be
done in that way or
not at all. Other
methods or mode
of performance
were impliedly and
necessarily
forbidden.
7. Commissioner of Income-Tax Act, The question Noscitur a socii The Court relied
Income Tax v Raj 1961 - Section 2 before the Court on the aid of
Kumar, [2009] 181 (22)(e) was whether trade interpretation, and
TAXMAN 155 advances could be observed that if
(Delhi) accommodated in the word advance
the expression is not found in the
advance occurring company of or in
in the provision. conjunction with
the word loan, it
may not include
the obligation of
repayment. If it
did, then it would
be a loan.
Hence, in the
absence of such
an expression, the
Court held that a
trade advance
which is in the
nature of money
transacted to give
effect to
commercial
transaction would
not fall within
Page 6 of 14
Conclusion
ambit of the
provision of
Section 2 (22)(e).
Therefore, trade
advances given to
assessee by CEI
could not be
treated as deemed
dividend under
Section 2 (22)(e).
8. Bhag Chand v Rajasthan The question Statement of The Court relied

ADJ, AIR 2009 Raj Premises (Control before the Court Objects and on the statement
178 [LNIND 2009 of Rent and was whether Reasons of objects and
RAJ 241] Eviction) Act, 1950 Sections 29 of and reasons appended
- Sections 6,7 and 32 (3)(a) of Act to the new Act to
13, and Rajasthan had an overriding hold that the
Rent Control Act, effect on legislature took
2001 - Section 29 proceedings into consideration
and 32 (3)(a) relating to fixation the fact that the
of standard under Old Act had
Sections 6 and 7 remained in force
of the old Act. for 50 years and in
the prevailing
situation with
regard to
availability of
premises, the
State had
undergone
considerable
change. Hence,
operation of the
Old Act had
resulted in
hardship to
landlords both so
far as vacation of
premises was
concerned, and
also in
determination of
fair rent. The Court
observed that it
was necessary to
replace old
provisions under
Act with new
provisions for
control of rent and
eviction. Hence,
the provisions of
the new Act were
held to override
the provisions of
the old Act.
9. Commissioner of Income Tax Act, The question Expressio Unius On the basis of the
Income Tax v 1961 - Sections before the Court est Exclusio aid to
Rajeev Sharma, 143 (2), 148 was whether in the Alterius interpretation, the
[2010] 192 absence of any Court held that the
TAXMAN 197 (All) notice issued procedure under
Page 7 of 14
Conclusion
under Sub-section Section 143 (2)

(2) of Section 143 had to be complied
after receipt of with, and any other
fresh return alternate
submitted by the procedure could
Assessee in not be resorted to.
response to notice Hence, the
under Section 148, proceedings for
the entire escaped
procedure adopted assessment were
for escaped ultra vires the Act
assessment would and illegal.
be valid or not.
10. ChingalalYadav v M. P. Foreign The petitioner Reddendo Singula The Court held
State of MP, 2010 Liquor Rules, 1996 stressed on the Singulis that from the
(2) MPLJ 443 - Rule 8 (l)(a) and expression inviting perusal of the
M. P. Country application for language
Spirit Rules, 1995 each/every shop employed by the
- Rule 9 and sought to legislature in Rule
argue that 8 (l)(a) and Rule 9
allotment of liquor of the Rules, it was
shops could only apparent that
proceed after ingredients of
giving general applying the rule
invitation calling were not there.
applications from Therefore, the
all eligible and principle of
willing persons. He Reddendo Singula
further argued that Singulis had no
phrase occurring application while
in Rule 8 in such interpreting Rule 8
other manner as and Rule 9.
the State
Government may
direct from time to
time and in Rule 9
or by any such
procedure as may
be prescribed by
the State
Government from
time to time has to
be read in
conjunction with
the disposal of
application and not
with grant of
licences.
11. Visa Steel Ltd v Orissa Value The Petitioners, Ejusdem generis The Court held
State of Orissa, Added Tax Act, who were that the principle of
2010 (2) OLR 792 2004 - Section 20 registered dealers ejusdem generis
(8)(m) under Section 20 would apply to the
(8)(m) of the Act, scope and ambit of
had been Clause (m) of Sub-
disallowed from section (8) of
claiming any input Section 20, and
tax credit in that Clauses (a) to
respect of VAT on (l) of Sub-section
purchase of Coal (8) of Section 20
and Furnace Oil. It were
Page 8 of 14
Conclusion
was argued by the circumstances

Petitioners that the specified by the
Court ought to legislature under
read the situations which no input tax
under which input credit could be
tax credit could not claimed nor
be availed, which allowed to a
were listed in registered dealer.
Section 20 (8) of An additional
the Act, ought to circumstance may
be read ejusdem be specified by a
generis. The State notification of the
argued against State Government,
such an but the nature of
interpretation, and such notification
proposed that the has to satisfy the
State had plenary requirement of
power to put any Sub-section (8) of
items on the list on Section 20. The
which input tax Court applied the
credit could not be principle of
availed. ejusdem generis to
Clause (m) of Sub-
section (8) of
Section 20 and
held that the
impugned
notification could
not stand the test
of application of
the principle of
ejusdem generis.
12. CBSE School Employees State The Court had to Ejusdem generis The court rejected
Managements Insurance Act, interpret the the application of
Association v 1948 - Section 1 expression or the ejusdem
State of Kerala, (5) otherwise generis rule, and
(2010) IILLJ 240 occurring in the held that the words
(Ker) provision as employed or
follows: extend the otherwise should
provisions of this be given the
Act or any of them, widest possible
to any other meaning and
establishment or therefore, they will
class of cover the
establishments, educational
industrial, institutions also.
commercial, The Court
agricultural or observed that
otherwise. It was whether the words
argued that the ought to be given
State could not a restricted
extend the ambit meaning or not will
of the Act to depend upon the
educational context in which
institutions, they are used.
because if the There cannot be
expression or any principle of
otherwise was universal
read ejusdem application
generis, it would concerning this.
Page 9 of 14
Conclusion
not cover
educational
institutions.
13. Jaya Hind Payment of The Court had to Noscitur a socii The Court held
Industries v Vilas Gratuity Act, 1972 consider whether that the
Vithalraotakale, - Section 7 (3A) the Respondent misconduct that
2011 (7) ALLMR was eligible for the was proven was
188 payment of that the
gratuity payment. Respondent was
The Respondent negligent in his
argued that the duties and had
words disorderly shouted at or back
conduct must take answered his
their colour from superiors when
the words or terms corrected. Reading
they are the text of the
associated with i.e. provision in light of
riotous conduct the aid, the Court
and any other act held that such
of violence in conduct though
consonance with disorderly cannot
the principle of result in forfeiture
noscitur a socii. of gratuity of the
According to the workman, either
Respondent, the wholly or in part.
expressions which
are associated
with the term
disorderly conduct
indicate that there
must be an
element of
violence in such
conduct for the
workman to be
deprived of his
gratuity.
14. Bharat Aluminium Arbitration and The question Casus omissus The Court held
Company v Kaiser Conciliation Act, before the Court that the omission
Aluminium 1996 - Section 2 was the scope of of the word only in
Technical Service, (2) the expression Section 2 (2) was
(2012) 9 SCC 552 place of arbitration not an instance of
[LNIND 2012 SC in Section 2 (2), casus omissus,
1181] and whether the but of the fact that
dropping of the the Model Law had
word only which not been bodily
occurred in the adopted by the
UNCITRAL Model Arbitration Act,
Law on Arbitration 1996. The Court
was a situation of observed that it
casus omissus or was not the
not. The relevant function of the
section read as Court to supply the
follows: This part supposed
will apply where omission, which
the place of could only be done
arbitration is India. by Parliament. In
the Courts opinion,
legislative surgery
was not a judicial
Page 10 of 14
Conclusion
option, nor a
compulsion, whilst
interpreting an Act
or a provision in
the Act. However,
the Court
effectively inferred
the expression
only in Section 2
(2) to reiterate the
territorial principle,
and that Part-I of
the 1996 Act
applied only to
arbitrations where
the place of
arbitration was
India.
15. Honey Sharma v Maharashtra The Court had to Noscitur a socii / The Court held
Govt. of NCT of Control of interpret the Ejusdem generis that the expression
Delhi, 2012 IXAD Organized Crime expression other took colour from
(Delhi) 520 Act, 1999- Section unlawful means the preceding
2 (e) occurring in expressions, and
Section 2 (e) as hence had to
follows: by use of contain elements
violence or threat such as violence
of violence or and coercion. The
intimidation or Court refused bail
coercion, or other finally on grounds
unlawful means. different than the
The Court sought interpretation of
an invocation of the expression.
noscitur a socii to
interpret the
expression.
16. VinayTyagi v Code of Criminal The question Ejusdem generis The Court held
Irshad Ali, (2013) 5 Procedure, 1973 - before the Court that the word
SCC 762 [LNIND Section 228 was the scope of presuming must
2012 SC 826] the word be read ejusdem
presuming in generis to mean
Section 228, which that a ground must
empowered a trial exist for forming
judge to frame the opinion that
charges against the accused had
the accused or committed an
commit the matter offence. Such
to the Court of opinion had to be
Sessions for trial. formed on the
The relevant basis of the record
portion of the of the case and
section read as the documents
follows: if after submitted
such consideration therewith. Hence,
and hearing as the expression
aforesaid, the presuming could
Judge is of the not be said to be
opinion that there superfluous in the
is ground for language and
presuming that the ambit of Section
accused has 228 of the Code.
Page 11 of 14
Conclusion
committed an The Court held

offence. that the provision
had been
incorporated to
emphasize that the
Court may believe
that the accused
had committed an
offence, if its
ingredients were
satisfied with
reference to the
record before the
Court.
17. M/s. Tata Steel Code of Criminal The question Casus omissus The Court held
Ltd. v M/s. Atma Procedure, 1973 - before the Court that it would
Tube Products Sections 372, 378 was whether the invariably be
Ltd., 2013 (2) RCR word victim as reluctant to create
(Criminal) 1005 mentioned in the casus omissus
proviso of Section where there was
372 would include none, nor shall
a complainant for insert a desired
the purpose of provision in an
availing the enactment as it will
remedy of appeal amount to
as given to the legislating and not
victim through the construing the
aforementioned Statute. However,
proviso. where a vacuum
caused in a
Statute due to the
omission by its
draftsman
forestalls the Court
to construe it
consistent with its
legislative policy, it
becomes the
bounden duty of
the Court to fill in
such gap and
secure the object
of the Statute.
Hence, in this case
the Court held that
even though the
expression
complainant had
not been explicitly
mentioned, the
expression victim
was supposed to
include
complainants as
well to the extent
of appeals against
lesser sentence
under Section 372.
18. Swastik Gases P. Arbitration and The question Expressio Unius The Court held
Ltd. v Indian Oil Conciliation Act, before the Court est Exclusio that absence of
Page 12 of 14
Conclusion
Corporation P. 1996 - Section 11 was whether by Alterius words like alone,

Ltd., 2013 (8) conferring only, exclusive or
SCALE 433 jurisdiction on exclusive
[LNIND 2013 SC Courts in Kolkata, jurisdiction in the
604] the agreement had agreement was
impliedly excluded not decisive and
the jurisdiction of does not make any
other High Courts material
to appoint an difference. The
arbitrator under intention of the
Section 11 of the parties by having
Act. Clause 18 in the
agreement was
that the courts at
Kolkata shall have
jurisdiction which
meant that the
courts at Kolkata
alone shall have
jurisdiction. The
Court held that
such a clause had
to be construed to
impliedly exclude
the jurisdiction of
all Courts. Hence,
where the contract
specified the
jurisdiction of the
courts at a
particular place
and such courts
have jurisdiction to
deal with the
matter, the Court
held that an
inference may be
drawn that parties
intended to
exclude all other
courts.
19. Rana Papers Uttar Pradesh The petitioners Ejusdem generis The Court held
Limited v State of Trade Tax Act, sought to quash a that the entries
U.P.,(2013) 60 1948 - Section 5 demand notice for preceding and
VST 407 (All) state development succeeding the
tax, claiming that concerned entry
they were eligible had a common
for rebate under a genus i.e. an
notification issued earlier rebate
by the State under notification.
Section 5 . The Hence, the
notification concerned entry
contained the ought to be
expression on interpreted as
which trade tax limited to the
rebate is allowed particular rebate
to the full extent. notification, and
The petitioner not all rebate
argued that this notifications. The
entry would also Court observed
Page 13 of 14
Conclusion
accommodate the that The rule of

petitioner in its ejusdem generis
ambit. had been applied
in taxation statute
as well. In cases
where the
particular words
can belong to a
broad based
genus, it was not
open to confine
them to a narrower
genus so as to
limit the meaning
of the general
words. The Court
further observed
that it was
essential for the
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.
20. Nirma Industries Takeover Code, The Court had to Ejusdem generis The Court
Ltd. v SEBI, (2013) 1997 - Regulations consider situations observed that
8 SCC 20 [LNIND 27 (1)(a),(b), (c), in which a public Clauses (b) and
2013 SC 515] (d) offer could be (c) were within the
withdrawn under same genus of
Regulation 27. impossibility.
Clause (b) Clause (d) also
permitted a public being an exception
offer to be to the general rule
withdrawn in cases would have to be
of legal construed in terms
impossibility when of Clauses (b) and
the statutory (c). Hence, the
approval required Court favoured the
has been refused. application of the
Clause (c) ejusdem generis
provided for rule and held that
impossibility when the term such
the sole acquirer, circumstances in
being a natural Clause (d) would
person, has died. also be restricted
Clause (d) further to situations which
stated that a public would make it
offer could be impossible for the
withdrawn in such acquirer to perform
circumstances as the public offer.
in the opinion of Discretion had
the Board merits been left to the
withdrawal. Board by the
Page 14 of 14
Conclusion
legislature
realizing that it is
impossible to
anticipate all the
circumstances that
may arise making
it impossible to
complete a public
offer. Therefore,
certain amount of
discretion had
been left with the
Board to
determine as to
whether the
circumstances fall
within the realm of
impossibility as
visualized under
Sub-clause (b) and
(c). On the facts of
the case, the Court
held that the
possibility that the
acquirer would
end-up making
loses instead of
generating a huge
profit would not
bring the situation
within the realm of
impossibility, and
hence, the public
offer could not be
withdrawn.
End of Document
Introduction
NS Bindra
Mandatory and Directory Provisions
Introduction
Whilst the previous chapter dealt with the guidance Courts obtain from the statute itself, in this chapter the impact of
particular words is studied. There is a well-known distinction between a case where the directions of the legislature
are imperative and a case where they are directory.1 The real question in all such cases is whether a thing has
been ordered by the legislature to be done and what is the consequence if it is not done. The general rule is, that an
absolute enactment must be obeyed or fulfilled substantially.2 Some rules are vital and go to the root of the matter,
they cannot be broken; others are only directory and a breach of them can be overlooked provided there is
substantial compliance. With the rules read as a whole, provided no prejudice ensues, and when the legislature
does not itself state which is which, judges must determine the matter and, exercising discrimination, sort out one
class from the other along broad-based commonsense lines.3 In the case of statutes that are said to be imperative,
the courts have decided that if is not done, the whole thing fails and the proceedings that follow upon it are all void.
On the other hand, when the courts hold the provisions to be directory, they say that although such provisions may
not have been complied with, the subsequent proceedings do not fail.4 No universal rule can be laid down, while
construing statutes, to determine whether mandatory enactments should be considered directory, or obligatory with
an implied nullification for disobedience. It is the duty of the courts to try to get at the real intention of the legislature
by carefully attending to the whole scope of the statute to be construed.5 No universal rule can be laid down in this
matter. The Supreme Court of India has also been stressing time and again that the question whether statute is
mandatory or directory is not capable of generalisation and that in each case the court should try and get at the real
intention of the legislature by analysing the entire provisions of the enactment and the scheme underlying it.6 A
provision in a statute is mandatory if the omission to follow it renders the proceeding to which it relates illegal and
void, while a provision is directory if its observance is not necessary to the validity of the proceeding, and a statute
may be mandatory in some respects, and directory in others.7
In each case one must look to the subject matter and consider the importance of the provision disregarded and the
relation of that provision to the general object intended to be secured. Prohibitive or negative words can rarely be
directory and are indicative of the intent that the provision is to be mandatory. Where a prescription relates to
performance of a public duty, and to invalidate acts done in neglect of them would work serious general
inconvenience or injustice to persons who have no control over those entrusted with the duty, such prescription is
generally understood as mere instruction for the guidance of those upon whom the duty is imposed. While
considering the question whether a particular rule is mandatory or directory, no test or invariable formulae to
determine this question can be laid down.
The classification of statutes as mandatory and directory is useful in analysing and solving the problem of what
effect should be given to their directions. But it must be kept in mind in what sense the terms are used, that they are
only descriptive of the effect that, [as] it has been determined, should be given to the statutory provision, and that
there is no essential difference in statutes whereby their mandatory and directory character can be determined as a
means by the legislature to be regarded; but where the consequences of not obeying them in every particular are
not prescribed, the courts must judicially determine them. In doing so they must necessarily consider the
importance of the literal and punctilious observance of the provision in question to the object the legislature had in
view. If it is essential, it is mandatory and a departure from it is fatal to any proceeding to execute the statute or to
obtain the benefit of it.8
Crawford opined:9
Page 2 of 6
Introduction
A statute, or one or more of its provisions, may be either mandatory or directory. While usually in order to ascertain whether
a statute is mandatory or directory, one must apply the rules relating to the construction of statutes; yet it may be stated, as
a general rule, that those whose provisions relate to the essence of the thing to be performed or to matters of substance,
are mandatory, and those which do not relate to the essence and whose compliance is merely a matter of convenience
rather than of substance, are directory. One of the important tests that must always be employed in order to determine
whether a provision is mandatory of directory in character is to consider whether the non-compliance of a particular
provision causes inconvenience or injustice and, if it does, then the court would say that that provision must be complied
with and that it is obligatory in its character.10
Maxwell opined:11
The reports are full of cases dealing with statutory provisions which are devoid of indication of intention regarding the effect
of non-compliance with them. In some of them the conditions, forms or other attendant circumstances, prescribed by the
statute have been regarded as essential to the act or thing regulated by it and their omission has been held fatal to its
validity. In others, such prescriptions have been considered as merely directory, the neglect of which did not affect its
validity or involve any other consequence than a liability to a penalty, if any, imposed, for breach of the enactment. The
propriety, indeed, of even treating the provisions of any statute in the latter manner has been sometimes questioned, but it
is justifiable in principle as well as abundantly established by numerous authorities. It has been said that no rule can be laid
down for determining whether the command is to be considered as a mere direction or instruction involving no invalidating
consequence in its disregard, or as imperative, with the implied nullification for disobedience, beyond the fundamental one
that it depends on the scope and object of the enactment. It may, perhaps, be found generally correct to say that
nullification is the natural and usual consequence of disobedience, but the question is, in the main, governed by
considerations of convenience and justice, and when that result would involve general inconvenience and justice, and when
that result would involve general inconvenience or injustice to innocent persons, or advantage to those guilty of the neglect,
without promoting the real aim and object of the enactment, such an intention is not be attributed to the legislature. The
whole scope and purpose of the statute under consideration must be regarded.
What are mandatory and directory provisions?
Sutherland opined:12
The difference between mandatory and directory statutes is one of effect only. The question generally arises in a case
involving a determination of rights as affected by the violation of, or omission to adhere to, statutory directions. This
determination involves a decision of whether or not the violation or omission is such as to render invalid Acts or
proceedings pursuant to the statute, or rights, powers, privileges or immunities claimed thereunder. If the violation or
omission is invalidating, the statute is mandatory; if not, it is directory.
Craies puts the matter thus:13
When a statute is passed for the purpose of enabling something to be done and prescribes the formalities which are to
attend its performance, those prescribed formalities which are essential to the validity of the thing when done are called
imperative or absolute, but those which are not essential, and may be disregarded without invalidating the thing to be done,
are called directory.
According to Crawford,14 a mandatory statute may be defined as one whose provisions or requirements, if not
complied with, will render the proceedings to which it relates illegal and void, while a directory statute is one where
non-compliance will not invalidate the proceedings to which it relates. Thus, where certain conditions are prescribed
by a statute for the conduct of any business or profession, and such conditions are not observed, agreements made
in the course of such business or profession become void, if it appears that the object in imposing the conditions is
the maintenance of public order or safety, or the protection of persons dealing with those on whom the conditions
have been imposed. On the other hand, where the conditions are imposed merely for administrative purposes and
no specific penalty is imposed for breach or violation of such conditions, agreements in breach of them are valid. It
is clear law that an act, forbidden in public interest, cannot be made lawful by paying penalty on violation, whereas
Page 3 of 6
Introduction
an act which is lawful in itself cannot became unlawful merely because some collateral requirement, imposed for
reasons of administrative convenience, has not been fulfilled.15
Legislative Intent
In determination of the question, whether a provision of law is directory or mandatory, the prime object must be to
ascertain the legislative intent from a consideration of the entire statute, its nature, its object and the consequences
that would result from construing it in one way or the other, or in connection with other related statutes, and the
determination does not depend on the form of the statute.16 It appears to be well settled that in order to judge the
nature and scope of a particular statute or rule, i.e., whether it is mandatory or directory, the purpose for which the
provision has been made, and its nature, the intention of the legislature in making the provision, the serious general
inconvenience or injustice to persons resulting from whether the provision is read one way or the other, have all to
be taken into account in arriving at the conclusion whether a particular provision is mandatory or directory.17
In Hari Vishnu Kamath v Ahmad Ishaque,18 the Supreme Court observed that the various rules for determining
when a statute might be construed as mandatory and when directory are only aids for ascertaining the true intention
of the legislature which is the determining factor, and that must ultimately depend upon the context. An enactment,
mandatory in form, might in substance be directory. The use of the word shall does not conclude the matter. When
a statute requires that something shall be done or done in a particular manner or form without expressly declaring
what shall be the consequence of non-compliance, the question often arises what intention is to be attributed by
inference to the legislature. It has been said that no rule can be laid down for determining whether the requirement
is to be considered as a mere direction or instruction involving no invalid consequence for its disregard, or as
imperative with an implied nullification for disobedience, beyond the rule that it depends on the scope and object of
the enactment. In order to determine whether a particular provision is mandatory or directory, it would be necessary
to ascertain whether the failure to comply with the requirement affects the very foundation or authority for the
proceedings so as to make it void and incapable of being validated. It is always difficult to demarcate with any
degree of accuracy in a particular case what is mandatory and what is directory, or what is irregularity and what is a
nullity. When a question arises as to how far the proceedings are affected by the contravention of any provision, it is
necessary to see the scope and object of the particular provision which is said to be violated.19
Purpose behind Enactment
The question as to whether a statute is directory or mandatory would not depend upon the phraseology used
therein. The principle as regards the nature of the statute must be determined having regard to the purpose and
object the statute seeks to achieve.20 If an object of the enactment is defeated by holding the same directory, it
should be construed as mandatory; whereas if by holding it mandatory serious general inconvenience will be
created for innocent persons of the general public without furthering the object of enactment, the same should be
construed as directory but all the same, it would not mean that the language used would be ignored altogether.
Sutherland in Statutory Construction21 observed:
It can be stated as a general proposition that, as regards the question of mandatory and directory operation, the courts will
apply that construction which best carries into effect the purpose of the statute under consideration. To this end, the courts
may inquire into the purpose behind the enactment of the legislation, requiring construction as one of the first steps in
treating the problem. The ordinary meaning of language may be overruled to effectuate the purpose of the statute.
Lord Penzance observed in Howard v Bodington:22
I believe, as far as any rule is concerned, you cannot safely go further than that, in each case you must look to the subject-
matter, consider the importance of the provision that has been disregarded, and the relation of that provision to the general
object intended to be secured by the Act, and upon a review of the case in that aspect decide whether the matter is what is
called imperative or only directory.
Maxwell23 observes that where the whole aim and object of the legislature would be plainly defeated if the
command to do the thing in a particular manner did not imply a prohibition to do it in any other, no doubt can be
entertained as to the intention. Words only directory, promissory or enabling may have a compulsory force where
Page 4 of 6
Introduction
the thing to be done is for the public benefit or in advancement of public justice.24 Whether, in a given context a
statute should be termed mandatory or directory would depend upon larger public interest, nicely balanced with the
precious right of the common man. Whether the accused, in a particular case, was prejudiced to such a degree by
delay or failure to liberate him from the unabated agony resulting from such delay is a matter to be decided in the
individual case.
In Food Inspector, Cannanore Municipality, Cannanore v M Gopalan,25 the Kerala High Court undertook a detailed
case based analysis on the character of the Rule, which specified the time period within which the Public Analyst
report should submit his report. The Court chose to characterize the rule as directory because to deem it mandatory
would provide an opportunity to manipulative accused persons to have the submission of the report delayed and
thus render the statute otiose. The Court did not accept the contention that the delay could prejudice the accused
by causing the sample to spoil. If such spoilage happens the Court opined:
the analyst would refuse to undertake the analysis. Hence there was no need to make the rule relating to time periods
mandatory to ensure that the analyst undertakes the analysis before the sample spoils or perishes.
Historical Retrospect
Previous statutes dealing with the same subject matter may be looked to determine the mandatory or directory
import of a provision.26 Sutherland further says:
If an earlier statute has been construed and a later statute re-adopts the terms of the earlier statute, of course, the new
statute will be construed the same as the old. If the statute under consideration has taken the place of an earlier statute on
the same subject-matter, and one of the constructions contended for would cause the new statute to have no different
effect than the old one, the other construction is proper. And if an Act amends a previous Act so as to change either a
permissive or imperative verb in the original Act to the opposite in the amending Act, the rule is clear. It is uncertain what
significance the courts should give to the fact that the legislature has omitted to re-enact some of the provisions of an
earlier Act into a later one, under circumstances where such omission may have a bearing on what construction should be
placed on the statute. In most cases this is probably a fact to be given very little weight. But in some cases, where the
wording of a statute, and what should be included and what excluded, has obviously been decided with meticulous care, it
may be an important fact.
In Aeron Steel Rolling Mills v State of Punjab,27 the question before the Court was whether Section 33B of the
Industrial Disputes Act, 1947, which empowered the State Government to transfer a proceeding under the Industrial
Disputes Act from one Tribunal to another, was mandatory or directory. The relevant portion of the provision read
as follows:The appropriate Government may, by order in writing and for reasons to be stated therein, withdraw any
proceeding under this Act pending before a Labour Court, Tribunal, or National Tribunal and transfer the same to
another Labour Court, Tribunal or National Tribunal, as the case may be, for the disposal of the proceeding. The
Court observed that the provision empowered the Government to transfer cases from one tribunal to another and
specified the manner in which the power shall be exercised. The provision required the Government to specify the
reasons on which the order of transfer was based was not related to the essence of the thing to be performed and
compliance with its terms is a matter of convenience rather than of substance. The Court held:
A failure to comply with this provision is not likely to result in any injury or prejudice to the substantial rights of interested
persons, or in the loss of any advantage, the destruction of any right or the sacrifice of any benefit. On the other hand,
insistence on a strict compliance with it is likely to result in serious general inconvenience or injustice to hundreds of
innocent persons who have no control over Government without promoting the real aim and object of the legislature. The
power to transfer is not so limited by the direction to give reasons that it cannot be exercised without following the directions
given. No penalty has been provided for failure to comply with the terms of provision and the enactment is silent in regard to
the consequences of non-compliance. No substantial rights depend on a strict observance of this provision; no injury can
result from ignoring it; and no Court can declare that the principal object of the legislature that case should be capable of
being transferred has not been achieved. Considerations of convenience and justice plainly require that his provision
should be held to be directory and not mandatory.
In Lila Gupta v Laxmi Narain,28 the Court was interpreting the proviso to Section 15 of the Hindu Marriage Act,
1955 (which was repealed in 1976). The expression read as follows:Provided that it shall not be lawful for the
Page 5 of 6
Introduction
respective parties to marry again unless at the date of such marriage at least one year has elapsed from the date of
the decree in the court of the first instance. The Court observed that when a statute prohibits a certain thing being
done thereby making it unlawful without providing for consequence of the breach, it was not legitimate to say that
such a thing when done was void because that would be tantamount to saying that every unlawful act is void. On
the basis of this reasoning, the Court held that a marriage in violation of the proviso would not be a nullity,
irrespective of the use of the word shall in the provision.
Similarly, in Prakash Chandar v Sunderbai,29 the Court was considering the use of the word shall in the proviso to
Order V, Rule 19A (2) the CPC. The Court held that the provision was prima facie mandatory, since the word shall
was ordinarily imperative. Yet, whether it was mandatory or directory would depend upon the real intention of the
legislature, for ascertaining which the court may consider the nature of the statute and the expected consequences,
etc. Following Mani Lal Mohan Lal v Syed Ahmed,30 where it was held that Order XXI, Rules 84-85 and 96 were
mandatory, the Court held in Rao Md Ahmed Khan v Sri Rambir Singh31 that Rules 285D and 185E of the Uttar
Pradesh Zamindari Abolition and Land Reforms Rules, 1952, being similar in terms of the aforementioned
corresponding provisions of the Code, were also mandatory.
1 .R v Lincolnshire Appeal Tribunal [1917] 1 KB 1.
2 .Woodward v Sarsons (1875) LR 10 CP 733; Halsburys Laws of England, fourth edn, vol 44, para 933, p 584.
3 .Narayan Krishnaji v State AIR 1967 Bom 213 [LNIND 1963 BOM 23]-14, per Chainani CJ; Haribandhu v
Chandrasekhar AIR 1966 Ori 12-13, per Barman J: where no public policy is involved, the rule should be held to be
directory; Satyanarayana v Subbiah AIR 1957 AP 172, p 181, per S Raju J.
4 .Howard v Bodington (1877) 2 PD 203; Pearse v Morrice (1834) 111 ER 32; District Board Kheri v Abdul Majid Khan
AIR 1930 Oudh 434, p 440.
5 .Liverpool Borough Bank v Turner (1860) 30 LJ Ch 379, per Lord Campbell LC; Clantex v Blackwood 1 CLR 39, p 51;
GirdhariLalDhall v Krushikesh Roy (1949) ILR 1 Cut 392, p 399: it is necessary to know the intention of the Act; Clantex
v Blackwood (No 2) 1 CLR 121, p 126; Mathura Mohan Saha v Ram Kumar Saha (1916) ILR 43 Cal 790, p 812,
Corpus Juris, vol 59, p 1072; Motibhai v State of Gujart AIR 1961 Guj 93, p 100; NarendraNath v Amiya Chowdhary
AIR 1959 Cal 231 [LNIND 1958 CAL 281], p 234, per SC Lahiri J; Bapusingh Ram Singh v Addl Collector, Indor (1977)
MP LJ 550, 1977 Jab LJ 691 ; Shankarlal Patidar v State of Madhya Pradesh (1975) MP LJ 116.
6 .RaghubirSingh v Town Area Committee (1981) All LJ 130 ; HN Rishbud v State of Delhi AIR 1955 SC 196 [LNIND
1954 SC 177]; TV Usman v Food Inspector (1994) 1 SCC 750 [LNIND 1994 SC 23]; Dalchand v Municipal Corpn,
Bhopal (1984) 2 SCC 486, (1984) SCC 311 (Cr), AIR 1983 SC 303 [LNIND 1982 SC 105].
7 .Corpus Juris, vol 59, p 1072; Subrata v Union of India AIR 1986 Cal 198 [LNIND 1984 CAL 122], (1984) 88 CWN 885,
(1984) 2 Cal HN 224.
8 . Sutherland, Statutory Construction, third edn, vol III, pp 76-77.
9 . Crawford, Statutory Construction, page 104.
10 .DA Koregaonkar v State of Bombay AIR 1958 Bom 167 [LNIND 1956 BOM 143](1957) ILR Bom 120, 122; Ismail v
Labour Appellate Tribunal AIR 1956 Bom 584 [LNIND 1955 BOM 85].
11 . Maxwell, Interpretation of Statutes, twelfth edn, ch 13; Brijlal v State of Patiala AIR 1957 Punj 100-01.
12 . Sutherland, Statutory Construction, third edn, vol III, p 77.
14 . Crawford, Statutory Construction, third edn, vol III, p 104.
15 .Calcutta National Bank Ltd v Rangoon Tea Co AIR 1967 Cal 294 [LNIND 1966 CAL 150].
16 .Corpus Juris, vol 59, p 1072-73.

Page 6 of 6
Introduction
17 .Hindu National School Management Trust Society v Deputy Director of Education (1980) All LJ 736; Commr of
Income-tax v Shivanand Electronics (1994) 1 SCC 60; State of Punjab v Balbir Singh (1994) SCC 634 (Cr).
18 . AIR 1955 SC 233 [LNIND 1954 SC 174]; Chacko v Chacko AIR 1959 Ker 149 [LNIND 1958 KER 199]-50.
19 .Ramakrishnamma v Lakshmibayamma (1958) ILR 497, p 501; Dwarka Prasad Misra v Kamal Narain Sharma AIR
1964 MP 278.
20 .Chandrika Prasad Yadav v State of Bihar (2004) 6 SCC 331 [LNIND 2004 SC 437].
21 . Sutherland, Statutory Construction, third edn, vol III, pp 79-80; United States, ex relsiggel v Thomas (1894) 156 US
353, 39 L Ed 450; SudhansuKanta v Manindra Nath AIR 1965 Pat 144, p 150, per Mahapatra J.
22 . (1877) 2 PD 203, p 211; Clandex v Blackwood 1 CLR 39, p 55; Chacko AIR 1959 Ker 149 [LNIND 1958 KER 199]-50.
23 . Maxwell, Interpretation of Statutes, twelfth edn, p 315; Dasondha Singh v State of Punjab AIR 1957 Punj 13-14; Ram
Asray Baiswar v Subedar Pandey AIR 1964 All 169.
24 .R v Tithe Commrs [1849] 14 QB 459 ; Chotabhai Jethabhai Patel & Co v State of Madhya Pradesh AIR 1966 MP
34.
25 . AIR 1991 Ker 240 [LNIND 1991 KER 42], (1991) Cr LJ 1783, (1991) 1 Ker LT 520.
26 . Sutherland, Statutory Construction, third edn, vol III, p 81:

The history of the statutory provision under consideration, either in the course of the bill through the legislature, or previous
statutes on the same subject, may be an important aid in determining whether it should be construed as mandatory or
directory. Where the history, of the bill in the legislature shows that when it was originally introduced it contained a
permissive verb, and that when finally passed it had been changed into one of mandatory import, or vice versa it is
clear that the verb used in the bill as it was finally passed was intended to carry its ordinary meaning discussions of the
bill in the legislature, executive messages concerning the measure, and the like, show the proper construction that
should be given to a provision.
I, respectfully, do not agree with what has been said in this footnote.
27 . AIR 1960 Punj 55; Brijlal v State of Patiala AIR 1957 Punj 100; Prabhu Dayal v State of Punjab AIR 1959 Punj 400.
28 . AIR 1978 SC 1351 [LNIND 1978 SC 152].
29 . AIR 1979 Raj 108; MR Reddy & Co v State of Andhra Pradesh AIR 1978 AP 499; PM Daraswamy v EA and Director,
Marketing AIR 1977 AP 286 [LNIND 1977 AP 16]; AV Subramanyam v C Venkataramanamma AIR 1981 AP 147: case
under Andhra Pradesh Court Fees and Suits Valuation Act 1956.
30 . AIR 1954 SC 349 [LNIND 1954 SC 66].
31 . (1995) 2 UJ 205 (SC).
End of Document
Affirmative and Negative Words
NS Bindra
In State of Himachal Pradesh v MP Gupta,32 the Court was interpreting Section 197 of the Code of Criminal
Procedure, 1973, which provided that no court shall take cognisance of any offence alleged to have been
committed by a public servant, judge, magistrate, or member of the armed forces. It was held that the use of the
words no and shall make it abundantly clear that the bar on the exercise of power of the court to take cognizance of
any offence is absolute and complete.
The legislature can incorporate in a statute or in the Constitution a provision mandatory in character by expressing it
in the form of a positive injunction rather than in the form of a negative injunction.33 For example, if the legislative
intent is expressed clearly and strongly, such as the use of must instead of shall, that itself will be sufficient to hold
the provision to be mandatory, and it will not be necessary to pursue the inquiry further.34
Corpus Juris35 deals with the matter thus:
It is a general rule that a statute which is negative or prohibitory, although it provides no penalty for non-compliance, or
which contains exclusive terms, shows a legislative intent to make the provision mandatory, and it has been said that
negative words in grant of power are never construed as directory; but provisions framed in negative language have, in
some cases, been construed as merely directory. On the other hand, while the use of affirmative words only is a
circumstance to be construed in determining whether the statute is mandatory or directory, an intention that it shall be
directory is not conclusively drawn by the absence of negative words, since affirmative words may and often do imply a
negative of what is not affirmed. So, affirmative words, if absolute, explicit, and peremptory, showing that no discretion was
intended to be given, render the statute mandatory. But the rule, that an affirmative statute without any negativity expressed
or implied is directory merely and leaves the common law in force, has more special reference to statutes giving a new
remedy.
The following observations are quoted on the other hand, from Bowditich v New England Mutual Insurance Co,36
by Crawford in Statutory Construction:37
Each statute must be judged by itself as a whole, regard being had not only to its language, but to the objects and purposes
for which it was enacted. If the statute does not declare a contract made in violation of it to be void, and if it is not necessary
to hold the contract void in order to accomplish the purpose of the statute, the inference is that it was intended to be
directory, and not prohibitory of the contract. The statute we are considering, does not, in terms, prohibit the corporation
from lending money to its officers, or declare that such contracts shall be void. It is directed to the officers, and by its terms
seems intended to furnish rules to regulate the duty of the officers to the corporation and its members. It does not say that
the corporation shall not lend, but that the officers shall not borrow...It is designed to forbid officers, who are charged with
the duty of investing funds of the corporation, borrowing from themselves and thus to prevent the risk of the funds being
invested by them, under the promptings of self-interest, upon insufficient security. In other words, the purpose is to protect
the corporation and the policy-holders from the dishonesty or self-interest of the officers. It is intended as a shield to the
corporations. To construe it as making the promises of the officers, who borrow money in violation of its provisions, void,
would defeat the main purpose of its enactment, and would visit the consequences of the unlawful act of the officers not
upon themselves, but upon the corporations for whose protection the statute was made. It would require a plain expression
of the legislative intention to lead us to such a construction.
Page 2 of 3
Crawford had remarked earlier:38
Prohibitive or negative words can rarely, if ever, be directory, or, as it has been aptly stated, there is but one way to obey
the command thou shall not and that is to completely refrain from doing the forbidden act. And this is so, even though the
statute provides no penalty for disobedience. Accordingly, negative, prohibitory and exclusive words or terms are indicative
of the legislative intent that the statute is to be mandatory but their absence does not, of itself, conclusively indicate a
legislative intention that the statute is permissive, for affirmative words may imply a negative, although of course, their
absence is a circumstance to be considered. Nevertheless, where affirmative words are used, if a negative is neither
expressed nor implied, the statute is merely directory.
What intention is to be attributed by inference to the legislature? Where, indeed, the whole aim and object of the
legislature would be plainly defeated if the command to do the thing in a particular manner did not imply a
prohibition to do it in any other, no doubt can be entertained as to the intention, and then where powers, rights or
immunities are granted with a direction that certain regulations, formalities or conditions shall be complied with, it
seems neither unjust not inconvenient to exert a rigorous observance of them as essential to the acquisition of the
right or authority conferred and it is, therefore, probable that such was the intention of the legislature.39
Mandatory and Permissive Words
In Sidhu Ram v Secretary Railway Board,40 the Court had to consider the import of Rule 1732 of the Railway
Establishment Code. The relevant portion of the Rule read thus: Where the penalty of dismissal, removal from
service, compulsory retirement reduction in rank or withholding of increment has been imposed, the appellate
authority may give the railway servant either at his discretion or if so requested by the latter a personal hearing,
before disposing of the appeal. The Court had to consider whether the obligation to give a personal hearing was
mandatory or directory. On a plain reading of the Rule, the Court held that if the expression may were to be read as
must, it would impose a duty on the appellate authority to give a right of personal hearing in each case. In the
opinion of the Court, if that was the intendment of the legislature, it would have expressed it in much simpler and
explicit terms. Hence, the Court held that the provision was directory and not mandatory. In arriving at this decision,
the Court observed:
Ordinarily, the words shall and must are mandatory and the word may is directory although they are often used
interchangeably. It is this use, without regard to the literal meaning, that generally makes it necessary for the courts to
resort to construction in order to ascertain the real intention of the draftsman. Nevertheless, it is generally presumed that
the words are intended to be used in their natural meaning. Law reports do show that when a statute deals with the rights of
the public, or where a third person has a claim in law to the exercise of the power, or something is directed to be done for
the sake of justice of public good, or when it becomes necessary to sustain the constitutionality of a statute, the word may
is sometimes used as must. In the final analysis, it is always a matter of construction of the statute in question.
It may, however, be noted that the presumption that the legislature used mandatory and permissive terms in their
primary sense is a rebuttable one. The intention of the legislature will control and prevail over the literal meaning of
these words. The literal and ordinary meaning of imperative and permissive terms, will give way when the
interpretation of the statute according to the literal meaning of its words would lead to absurd, inconvenient, or
unreasonable results. However, as Black observes, this powers is dangerously liable to abuse, and one which
should be most carefully guarded in its exercise.41
32 . (2004) 2 SCC 349 [LNIND 2003 SC 1060].
33 .DA Koregaonkar v State of Bombay AIR 1958 Bom 167 [LNIND 1956 BOM 143], p 172, (1957) ILR Bom 120.
34 .Lachmi Narain v Union of India AIR 1976 SC 714 [LNIND 1975 SC 465].
35 .Corpus Juris, vol 59, pp 1075-76.
36 . 55 Am Rep 474.
Page 3 of 3
37 . Crawford, Statutory Construction, page 524-25.
39 . Maxwell, Interpretation of Statutes, eleventh edn, pp 362-64: while dealing with imperative or directory aspects;
quoted in Rudrani Chatterji v Nabadwip Municipality AIR 1990 Cal 397 [LNIND 1990 CAL 212].
40 . AIR 1973 Punj 383-84 (D), per SK Kapur J; BhikanBobla v State of Punjab AIR 1963 Punj 255, p 261, per Tek Chand
J; Food Inspector v Rang Lal Gujar 1982 Jab LJ 777.
41 . Black, Construction and Interpretation of the Laws, second edn, p 533.
End of Document
May
NS Bindra
May
It is well-settled that the use of word may in a statutory provision would not by itself show that the provision is
directory in nature. In some cases the legislature may use the word may as a matter of pure conventional courtesy
and yet intend a mandatory force. In order, therefore, to interpret the legal import of the word may, the court has to
consider various factors, namely, the object and the scheme of the Act, the context and the background against
which the words have been used, the purpose and the advantages sought to be achieved by the use of this word,
and the like. It is equally well-settled that where the word may involves a discretion coupled with an obligation or
where it confers a positive benefit to a general class of subjects in a utility Act, or where the court advances a
remedy and suppresses the mischief, or where giving the words a directory significance would defeat the very
object of the Act, the word may should be interpreted to convey a mandatory force.42 As a general rule the word
may is permissive and operative to confer discretion; and especially so, where it is used in juxtaposition to the word
shall, which ordinarily is imperative as it imposes a duty. Cases however, are not wanting where the words may,
shall, and must are used interchangeably. In order to find out whether these words are being used in a directory or
in a mandatory sense, the intent of the legislature should be looked into along with the pertinent circumstances. The
distinction of mandatory compliance or directory effect of the language depends upon the language couched in the
statute under consideration and its object, purpose and effect. The distinction reflected in the use of the word shall
or may depends on conferment of power. Depending upon the 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 a duty to exercise. If it appears to be the settled
intention of the legislature to convey the sense of compulsion, as where an obligation is created, the use of the
word may will not prevent the court from giving it the effect of compulsion or obligation. Where the statute was
passed purely in the public interest and that rights of private citizens have been considerably modified and curtailed
in the interests of the general development of an area or in the interests or removal of slums and unsanitary areas.
Though the power is conferred upon the statutory body by the use of the word may that power must be construed
as a statutory duty.43
In Fairgrowth Investments Ltd v Custodian.44Section 4 (2) of the Special Courts (Trial of Offences Relating to
Transactions in Securities) Act, 1992, provided that a person aggrieved by a notification issued under Section 3 (2)
could file a petition objecting to the notification within 30 days of the issuance of the notification. It was contended
that this limitation period was a directory one. It was held that the mere use of the word may in Section 4 (2) did not
indicate that the period prescribed was merely directory, and the period prescribed could not be extended under
any inherent jurisdiction of the special court. The words were unequivocal and unqualified and there was no scope
for reading in the Act, a power to dispense with the time limit, given the language of the Section and having regard
to the objects sought to be served by the Act. Section 4 (2) was thus held to be mandatory despite the use of the
word may.
In Siddheshwar Sahakari Sakhar Karkhana Ltd v CIT Kolhapur,45 it was argued that the expression may followed
by the words convert such deposits into shares after repayment of loans etc provided in bye-law 61A under the
Maharashtra Co-operative Societies Act, 1960, connoted that the provision was only directory. The Court held that it
would be appropriate to read the expression may as shall, observing that discretion is always coupled with a duty
and that a discretion cannot be used to circumvent an obligation cast by law. Conversely, the use of the term shall
may indicate the use in optional or permissive sense. Though in general sense may is enabling or discretional and
shall is obligatory, the connotation is not inelastic and inviolate.46
Page 2 of 2
May
In Dominion of India v Manindra Land and Building Corpn,47 the Court was considering Rule 5 (2) framed under
Section 11 of the (High Denomination Bank Notes (Demonetisation) Ordinance, 1946. The Rule read as follows:
Scheduled bank or a Government Treasury may obtain from the Reserve Bank an equivalent amount in bank notes of the
denominational value of one hundred rupees in exchange for any high denomination bank notes tendered for such
exchange which have been declared by it in the returns under the aforesaid Ordinance or which have been received by it in
exchange under this Ordinance, or if a scheduled bank so desires, a credit of that amount with the Reserve Bank.
The Court held that while the Rule no doubt laid down that when a declaration is made as provided in Rule 5 (1), it
was left to the discretion of the Central Government to authorise the Reserve Bank to exchange the high
denomination notes as shown in the declaration under Rule 5 (1), but the discretion that which the Central
Government has, must be properly and judicially exercised. If the requirements and conditions imposed in Rule 5
(1) were satisfied, the Central Government was bound to authorise the Reserve Bank to exchange the notes in
question in conformity with the provisions contained in Rule 2. In the opinion of the Court, the use of the word may
did not indicate that it was left to the absolute and uncontrolled discretion of the Central Government as to whether,
after a declaration is made under Rule 5 (1), such notes were to be exchanged.
For more illustrations of statutory contexts on the directory or mandatory role of the term may see Table 2.2.
42 .Collector v Habibuladin AIR 1967 J&K 44, p 48, per Ali J; Abida Begum v Rent Control Officer AIR 1959 All 675
[LNIND 1959 ALL 73], p 679, per VD Bhargava J: for the public benefit or advancement of public justice.
43 .Municipal Corpn of Greater Bombay v Advance Builders (India) Ltd (1971) Mah LJ 918, p 927, per Kotwal CJ: Bombay
Town Planning Act 27 of 1955, Section 54-55; City Board, Mussoorie v State Electricity Board AIR 1971 All 219, p 221:
whether the purpose of the enactment shall be achieved without making regulations.
44 . (2004) 11 SCC 472 [LNIND 2004 SC 1074].
45 . (2004) 12 SCC 1 [LNIND 2004 SC 902].
46 .Societe De Traction v Kamani Engineering Co Ltd AIR 1964 SC 558 [LNIND 1963 SC 116].
End of Document
Shall
NS Bindra
Shall
Since language is the medium of expressing the intention and the object that particular provision or the Act seeks to
achieve; therefore, it is necessary to ascertain the intention. The word shall is not always decisive. Regard must be
had to the context, subject matter and object of the statutory provision in question in determining whether the same
is mandatory or directory. No universal principle of law could be laid in that behalf as to whether a particular
provision or enactment shall be considered mandatory or directory. It is the duty of the court to try to get at the real
intention of the legislature by carefully analysing the whole scope of the statute or section or a phrase under
consideration.
In State of Uttar Pradesh v Mabodhan Lal,48 the respondents rank had been reduced and he was made to
compulsorily retire by the State. The question before the Court was whether Article 311 was subject to the
provisions of Art. 320 (3)(c) of the Constitution. Article 311 permitted the State to pass an order such as the one
passed in this case, and Article 320 (3)(c) used the expression shall in its mandate that the Public Service
Commission prior to an order of dismissal. Hence, the Court had to decide whether non-compliance with Article 320
would vitiate the order passed under Article 311 . The Court held that since Article 320 (3)(c) did not confer any
rights on a public servant if the provision was not complied with, the provisions of Article 320 (3)(c) were not
mandatory and that non-compliance with those provisions would not afford a cause of action to the respondent.
In Mohan Singh v International Airport Authority of India,49 the Court had to consider whether the conditions laid
down in Section 4 (1) of the Land Acquisition Act, 1894, were mandatory or directory. The relevant portion of the
provision read as follows: ...a notification to that effect shall be published in the Official Gazette...and the Collector
shall cause public notice of the substance of such notification to be given at convenient places in the said locality
the last of the dates of such publication and the giving of such public notice, being hereinafter referred to as the
date of publication of the notification. On a reading of the provision, the Court held that the effect of the use of the
word shall was that Section 4 (1) contemplated three mandatory conditions to be complied with: publication in
Official Gazette; followed by publication in two daily newspapers; and lastly issuing public notice. The conditions
under the provision were held to be mandatory. In arriving at this decision, the Court observed:
The word shall, though prima facie gives impression of being of mandatory character, it requires to be considered in the
light of the intention of the legislature by carefully attending to the scope of the statute, its nature and design and the
consequences that would flow from the construction thereof one way or the other. In that behalf, the court is required to
keep in view the impact on the profession, necessity of its compliance; whether the statute, if it is avoided, provides for any
contingency for non-compliance; if the word shall is construed as having mandatory character, the mischief that would
ensure by such construction; whether the public convenience would be subserved or public inconvenience or the general
inconvenience that may ensue if it is held mandatory and all other relevant circumstances are required to be taken into
consideration in construing whether the provision would be mandatory or directory.
In Raza Buland Sugar Co v Municipal Board, Rampur,50 the Court had to consider Section 131 (3) of the U.P.
Municipalities Act, 1916, which read as follows: The Board shall, thereupon publish in the manner prescribed in
Section 94 the proposals framed under sub-section (1) and the draft rules framed under sub-section (2) along with a
notice in the form set forth in Schedule III. The Court had to decide whether the expression shall in the provision
was mandatory or directory. The Court held that as long as publication was made in substantial compliance with the
manner provided in Section 94 (3), it would serve the purpose of the mandatory part of the section which provided
for publication. It would therefore not be improper to hold that the manner of publication provided in Section 94 (3)
Page 2 of 3
Shall
was directory and so long as there is substantial compliance with that the purpose of the mandatory part of Section
131 (3) would be served.
The question whether a particular provision of a statute which on the face of it appears mandatory, inasmuch as it uses the
word “shall” - as in the present case - is merely directory cannot be resolved by laying down any general rule and depends
upon the facts of each case and for that purpose the object of the statute in making the provision is the determining factor.
The purpose for which the provision has been made and its nature, the intention of the legislature in making the provision,
the serious general inconvenience or injustice to persons resulting from whether the provision is read one way or the other,
the relation of the particular provision to other provisions dealing with the same subject and other considerations which may
arise on the facts of a particular case including the language of the provision, have all to be taken into account in arriving at
the conclusion whether a particular provision is mandatory or directory.
Two main considerations for regarding a rule as directory are: (i) absence of any provision for the contingency of
any particular rule not being complied with or followed, and (ii) serious general inconvenience and prejudice to the
general public would result if the act in question is declared invalid for non-compliance with the particular rule.51
In Sunita Devi v Abhdesh Kumar Sinha,52 the time limit for filing of written statements was at issue. After the
amendment of the Code of Civil Procedure, 1908, in 1999 and 2002 parties were ordinarily required to present their
written statement within thirty days from the service of summons. However where the defendant failed to file the
statement within the prescribed period, the court could for reasons to be recorded in writing allow for an extension,
provided that this extension shall not be later than ninety days from the date of service.53 In this case, the trial
court rejected the written statement because it was presented after the period of ninety days had expired. The
question was whether the trial court possessed any discretion in the matter. On revision, the High Court opined that
use of the word shall was to be construed as placing a mandatory obligation, except in cases where it would lead to
an absurdity, or if such construction was at variance with the intent of the legislature, or was bound to cause failure
of justice. The court noted that Sections 148 and 151 of the CPC allowed a certain amount of discretion to the court
to avoid miscarriage of justice. Hence, it ruled that the trial court need not refuse an extension only because the
period of 90 days had expired.
It is true that a legislative provision expressed in a permissive form is sometimes construed as really mandatory and
the word may is read as must or shall. But that is only when a power is conferred on a person by saying that he
may do a certain thing, giving him liberty to do it so far as the form of expression goes, but which on the other hand,
it appears, either from the nature of the thing to be done or from other indication in the provision, that the legislature
intended to make it the duty of the person concerned to exercise the power. In such a case, it is said that the effect
of the word may is not to make it optional or discretionary with the donee of the power to exercise it or not, but the
effect is to enable him to exercise it, which has otherwise been made his duty to do. That principle of construction
cannot apply in a case where the word may is not used with a verb which confers a power on a certain person, and
enables or permits him to exercise it, but is used with a verb in the passive voice which occurs in an adjectival
phrase describing a fact, and occurs in conjunction with other words which completely exclude implications of an
obligation.54 If, however, the prescription was imperative or absolute in its terms, being in the nature of a condition
precedent to the acquisition of the power itself, it is clear that nullification for disobedience of the prescription is
implicit.55
In Shyabuddin Sab Mohidinsal Akki v Gadag Betgery Municipal Borough,56Section 35 (3) of thebombay Municipal
Boroughs Act, 1925, required giving notice of a special general meeting in writing and in a particular mode. The
Court held that such a provision could only be directory, and any omissions in the manner of service of notice were
mere irregularities which could not vitiate the proceedings, unless it was shown that such irregularities had
prejudicially affected the proceedings.
In Delhi Airtech Services v State of UP,57 The appellant owned a piece of land which was sought to be acquired by
the State under the Land Acquisition Act, 1894, and a notification to that effect had been issued. However, the
appellant claimed that no award for compensation had been passed even after the lapse of years since the
notification was passed. The appellant argued that the notification ought to be declared null and void, because the
award had not been made within two years (as prescribed by Section 11A) and eighty percent compensation had
not been paid to the appellant prior to taking possession of the land (as prescribed by Section 17 (3A)). The
Page 3 of 3
Shall
question before the Court was whether the aforementioned provisions were mandatory or directory i.e. would non-
compliance with them render a notification of acquisition null and void.
The Court held that the word shall may not always make the provision mandatory, and other factors such as object
and scope of the enactment and the consequences of making the provision mandatory must be taken into account.
The effects of non-compliance should also be interpreted keeping in mind the object, intent and scope of the Act.
The Court further held that the legislature had not made any attempt to provide penal consequences or the re-
vesting of land in the hands of the original owner if the provisions of Section 17 (3A). Hence, the intent of the
legislature was clear in stating that once the land was vested in the state, it could not be returned to its original
owner in case of non-compliance with Section 17 (3A). Hence, the onus to pay compensation prior to acquisition in
Section 17 (3A) was not mandatory irrespective of the use of the word shall, but non-payment of compensation may
lead to other consequences such as payment of additional amounts. Hence, non-compliance with Section 11A or
Section 17 (3A) would not render the acquisition notification null and void.
For more illustrations of statutory contexts on the directory or mandatory role of the term shall see Table 2.2.
48 . AIR 1957 SC 912 [LNIND 1957 SC 93], pp 917-18; Crawford, Statutory Construction, art 26, p 516; Khub Chand v
State of Rajasthan AIR 1967 SC 107 [LNIND 1961 SC 157]: where shall was considered mandatory; Collector of
Monghyr v Keshav Prasad AIR 1962 SC 1694 [LNIND 1962 SC 136]; Ram Asrey Baiswar v Subedar Pandey AIR 1964
All 169; Sadi Harbaksh Singh v Central Government AIR 1964 Punj 137; Washdev Singh v Union of India (1969) ILR
Del 469, AIR 1970 Del 85 [LNIND 1969 DEL 81], p 88, per Dua CJ: context and statutory aim and object, failing that,
normal meaning in English language; Kalyan Singh v Baldeo Singh AIR 1961 HP 2 [LNIND 1960 HP 4], p 7, per
Capoor JC; State of Madhya Pradesh v Azad Bharat Finance Co AIR 1967 SC 271; Kusumchand Kisanlal Chandak v
District Judge, Nagpur AIR 1968 Bom 381 [LNIND 1967 BOM 109]; Yamin (Md) v Jafar Mahommad AIR 1968 Del 149
[LNIND 1967 DEL 154].
49 . (1997) 9 SCC 132.
50 . AIR 1965 SC 895 [LNIND 1964 SC 294], (1965) 25 SCA 431; Mahboob Khan (Mhd) v State Transport Appellate
Tribunal (1982) All LJ 300; Martand Balvant v Chaganlal Ambalal (1978) 19 Guj LR 487; MM Pandya Food Inspector v
Bhagwandas Chiranjilal(1979) 20 Guj LR 555; Karnataka State Road Transport Corpn of Karnataka State Transport
Authority AIR 1984 Kant 4 [LNIND 1983 KANT 86].
51 .Thangaswami v Chief Secretary, Madras AIR 1965 Mad 225 [LNIND 1963 MAD 123].
52 . AIR 2005 Pat 136 .
53 . Proviso to r 1 of O VIII of the Code reads: Provided that where the defendant fails to file the written statement within
the said period of thirty days, he shall be allowed to file the same on such other day, as may be specified by the Court
for reasons to be recorded in writing, but which shall not be later than ninety days from the date of service of summons.
54 .Manik Chand Chawdhary v State (1958) 62 CWN 94; Collector v Habib Ullah Din AIR 1967 J&K 44 ; Mithila Motor
Transport Corpn Society v State Transport Authority, Bihar (1966) ILR 45 Pat 1544; Ram Chander v State of Haryana
(1968) ILR 1 Punj 234; Re Indo-Burmah Wood Products Ltd AIR 1968 Cal 198 [LNIND 1967 CAL 56]; see also
Ramgopal v Assthsgcommr, Uttar Pradesh AIR 1969 All 278 [LNIND 1967 ALL 96]: where use of the word may was
held to be permissive; for use in the other sense: Brijesh Kumar v State of Uttar Pradesh (1916) All LJ 372.
55 .Rathilal Bogilal Shah v State of Gujarat AIR 1966 Guj 244 [LNIND 1965 GUJ 36], p 247, per Mehta J: Arms Act, s 18
(a), recording of reasons for cancellation or suspension of license is mandatory.
56 . AIR 1955 314: intimation had been given to all the councillors who were present at a prior meeting.
57 . (2011) 9 SCC 354 [LNIND 2011 SC 788]
End of Document
Test
NS Bindra
Test
The Supreme Court observed in Dal Chand v Municipal Corporation, Bhopal:58
There are no ready tests or any invariable formula to determine whether a provision is mandatory or directory. The broad
purpose of the statute is important. The object of the particular provision must be considered. The link between the two is
most important. The weighing of the consequence of holding a provision to be mandatory or directory is vital and more
often than not, determinative of the very question whether the provision is mandatory or directory. Where the design of the
statute is the avoidance or prevention of public mischief but the enforcement of a particular provision literally to its letter will
lead to defeat that design, the provision must be held to be directory, so that proof of prejudice in addition to non-
compliance of the provision is necessary to invalidate the act complained of. There is no general rule, however, that an
enactment expressed in negative and prohibitory language must be considered as absolute. Nor on the other hand, is there
any general rule that an enactment expressed in affirmative language must not be considered as absolute.
Difficulty arises at times when the court has to interpret affirmative provisions in a statute prescribed for public
benefit. As a general rule a provision which enacts a rule of public policy or a condition precedent for the purpose of
benefiting the public would be regarded as indispensable. So any construction which is in any way adverse to public
interest should be avoided. But this is also a rule of construction useful to a limited degree, though helpful at times,
not to be applied with blind obedience, and must operate in harmony with other broad general rules of
interpretation. Every provision and every condition in a statute of this nature under consideration will not be read as
imperative and absolute. The court will closely scrutinise the provision and draw a distinction between that which
goes to the root of the matter and cannot be permitted to be violated with impunity and that which does not affect
the basis and essence of the matter. It often happens that the statute does not consist of one provision or one
condition but a number of different provisions some of which are of the nature of antecedent conditions and some
regulating the mode or manner in which something is to be done. In any such case the provision relating to the
condition precedent must, as a general rule, compel an imperative construction, whereas that which relates to the
mode or manner of fulfilling that condition may be considered as requiring a directory construction. The affirmative,
provision, which relates to the mode or manner of exercising jurisdiction or an authority, and does not limit the
jurisdiction or authority, should be given a directory construction.59
Essence of the Matter or Mere Matter of Form
Whether a statute is mandatory or directory depends on whether the thing directed to be done is of the essence of
the thing required, or is a mere matter of form. Accordingly, when a particular provision of a statute relates to some
immaterial matter as to which compliance with the statute is a matter of convenience rather than substance, or
where the directions of a statute are given merely with a view to the proper, orderly, and prompt conduct of
business, it is generally regarded as directory, unless followed by words of absolute prohibition; and the same is
true where no substantial rights depend on the statute, no injury can result from ignoring it, and the purpose of the
legislature can be accomplished in a manner other than that prescribed, with substantially the same results. But a
provision relating to the essence of the thing to be done, that is, to matters of substance, is mandatory, and when a
fair interpretation of a statute, which directs acts or proceedings to be done in a certain way, shows that the
legislature intended a compliance with such provision to be essential to the validity of the Act or proceeding, or
when some antecedent and pre-requisite conditions must exist prior to the exercise of power, or must be performed
before certain other powers can be exercised, then the statute must be regarded as mandatory.60
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Test
Basic Test: Consequences of Failure to Follow Statute
If the requirement is revealed to be important, it may logically be assumed that the legislature had intended that it
be met; if found to be unimportant, that it need not be met. After all, if every minor and unessential detail of a statute
were considered imperative, almost every act performed in accordance therewith would be invalid or ineffective,
whether the act was performed by individuals or by public officers. The confusion and impotency which would take
place would in all probability cause the legal system to break down. In order for law to be administered efficiently,
effectively, and expeditiously, the distinction between essential and non-essential requirements must be
maintained, either by the courts or by express legislative enactment.
According to Pal J. in Dharendra Krishna v Nihar Ganguly:61
In the absence of an express provision, the intention of the legislature is to be ascertained by weighing the consequences
of holding the statute to be directory or imperative...In each case the subject-matter is to be looked to and the importance of
the provision in question in relation to the general object intended to be secured by the Act, is to be taken into consideration
in order to see whether the matter is compulsory or merely directory.
Some authorities have made the question to depend on the presence or absence of words declaring the effect of a
failure to comply with the statute, holding that a statue which requires certain things to be done, or provides what
result shall follow a failure to do them, is mandatory, but that if the statute does not declare what result shall follow a
failure to do the required acts, it is directory.62 Lord Blackburn, observed, in Middlesex Justices v R:63
There are numerous...cases in which it has been held that certain provisions in Acts of Parliament are directory in the
sense that they were not meant to be a condition precedent to the grant, or whatever it may be, but a condition subsequent:
a condition as to which the responsible persons may be blamable and punishable if they do not act upon it but their not
acting upon it shall not invalidate what they have done, these persons having nothing to do with that.
Denman J. observed in Caldow v Pixell:64
In the absence of an express provision the intention of the legislature is to be ascertained by weighing the consequences of
holding a statute to be directory or imperative.
No Fixed Rule Giving Exact Answer
There is no fixed rule that will give an exact answer to the question of mandatory and directory provisions. The
various special rules deduced from the authorities offer no more than a clue or guide to the character of a statutory
provision. As a matter of fact, some of the rules are so weighed with exceptions that it is difficult to fix their value.
Each individual case has to be decided on the basis of its facts. A realistic approach to the problem is to utilise the
recognised aids to construction with a view to ascertaining the actual legislative intent. One of such sources is the
purpose of the statute, that is, the purpose with which the law was made. No statutory provisions are intended by
the legislature to be disregarded, but where the consequences of not obeying them in every particular are not
prescribed, the court must judicially determine them. In doing so they must necessarily consider the importance of
the literal and punctilious observance of the provision in question to the object the legislature had in view. If it is
essential it is mandatory, and a departure from it is fatal to any proceeding to execute the statute or to obtain the
benefit of it. The difference between mandatory and directory statutes is one of effect only. The question generally
arises in a case involving a determination of right as affected by the violation of, or omission to adhere to, statutory
directions.
Francis J Mccaffrey in his Statutory Construction65 has summed up the law beautifully in the following words:
Those statutes which contemplate that action shall or may be taken under them often present to the courts problem of
determining whether they are to be considered as mandatory or as merely directory. At times it must be decided whether
the legislature intended to command, and require that the contemplated action be taken whenever the prescribed
conditions occur, with no option or discretion allowed to the person or body to which the statute is addressed. If such is the
legislative intention the statute is said to be mandatory. On the other hand, if the legislature intended to grant to the person
Page 3 of 4
Test
or body concerned discretion, choice, or judgment as to doing or not doing the act in question, the statute is considered as
directory. Again, there may be offered for consideration the manner or time of doing the act spoken of in the statute. As to
this, if the legislature intended to exact a strict and literal compliance with its terms as a condition precedent to the validity
of the act or proceeding to which the statute relates, the provisions of the Act are called mandatory...As has been indicated,
the legislature may intend to issue a command or it may wish to grant mere authority or jurisdiction or to set out mere
directions and instructions for the guidance of those to whom the statute is addressed. Legislative bodies ordinarily use
appropriate language in framing laws. The difficulty is that the writers of laws do not always attach the usual and ordinary
meaning to imperative and permissive terms. At times mandatory and directory verbs are used interchangeably in
legislation. It must be remembered that legislative bodies like individuals, do not always use words in their literal sense;
they may speak in words of authorisation when they really wish to issue a command or vice versa.
The question as to whether mandatory provisions contained in statutes should be considered merely as directory or
obligatory has often been considered in judicial decisions. In dealing with the question no general or inflexible rule
can be laid down. It is always a matter of trying to determine the real intention of the legislature in using the
imperative or mandatory words and such intention can be gathered by a careful examination of the whole scope of
the statute and the object intended to be achieved by the particular provision containing the mandatory clause. If it
is held that the mandatory clause is obligatory, it inevitably follows that contravention of the said clause implies the
nullification of the contract.
In Poona Electric Co v State of Bombay66 section 33 (1) of the Electricity Act, 1910, was under scrutiny. Section 33
(1) provided that in case of an accident which was caused by electric wires or poles, a notice of the accident was
required to be given within a period of 24 hours after the accident, before any action could be taken. The Court held
that Section 33 could not be considered mandatory, and the absence of a written notice within the time prescribed
would not defeat the action where the party injured was incapable of complying with the provision by reason of his
injuries. The Court observed that where the enactment was absolute i.e. if it is mandatory in character, it required
exact compliance, whereas if it is merely directory, a substantial compliance with its provisions is sufficient.
Three Fundamental Tests
The language employed is not always a sure index and it is scarcely possible to lay down a hard and fast rule of
general application. Broadly speaking, however, there are three fundamental tests which are often applied with
remarkable success in the determination of this question. They are based on considerations of the scope and
object, sometimes called the scheme and purpose, of the enactment in question, on considerations of justice and
balance of convenience and on a consideration of the nature of the particular provision, namely, whether it affects
the performance of a public duty or relates to a right, privilege or powerin the former case the enactment is
generally directory, in the latter mandatory.67 A provision which is directory in form might be mandatory in
substance. Whether it is one or the other must depend upon a number of things such as the declared object of the
statute, the indications to be found in the various portions thereof, the persons for whose benefit the power is to be
exercised and such other matters as might appear on the statute.
Table 2.3 describes statutory provisions where the Courts were required to adjudicate upon their directory or
mandatory nature in the last ten years. This table along with table 2.2 provides evidence of the jurisprudence in the
field.
58 . AIR 1983 SC 303 [LNIND 1982 SC 105].
59 .Motibhai v State of Gujarat AIR 1961 Guj 93, 101; Narottam Das v Gowarikar AIR 1961 MP 182 [LNIND 1960 MP 28];
Ram Narain v Bishambar Nath AIR 1961 Punj 171; Jaiwant Rao v State of Rajasthan AIR 1961 Raj 250 [LNIND 1960
RAJ 81].
60 .Corpus Juris, vol 59, pp 1074-75.
61 . AIR 1943 Cal 266, 277-78; Calcutta National Bank Ltd v Rangasdon Tea Co Ltd AIR 1967 Cal 294 [LNIND 1966 CAL
150], p 305, per SP Mitra J.
62 .Corpus Juris, vol 59, p 1075; BrejaBehara v Gangadaram Behera AIR 1990 Ori 94 [LNIND 1989 ORI 16].
Page 4 of 4
Test
63 . [1884] 9 AC 778 .
64 . (1877) 2 CPD 562, p 566.
65 . Mccaffrey, Statutory Construction, pages 103-04.
66 . AIR 1967 Bom 27 [LNIND 1964 BOM 55].
67 .Ajit Kumar Sen&Anor v State of West Bengal AIR 1954 Cal 49 [LNIND 1952 CAL 65], pp 55-56; Chacko v Chacko AIR
1959 Ker 149 [LNIND 1958 KER 199]-50; Parmeshwar Mahaseth v State AIR 1958 Pat 149, p 151; SaratPadhi v State
of Orissa (1988) 65 Cut LT 122.
End of Document
Statutes Pertaining to Official Action
NS Bindra
Distinction between Grant of Powers and Rights, and Imposition of Duties
Where the prescription of statute relates to the performance of a public duty and where the invalidation of acts done
in neglect of them would work serious general inconvenience or injustice to persons who have no control over those
entrusted with the duty without promoting the essential aims of the legislature, such prescriptions seem to be
generally understood as mere instructions for the guidance and government of those on whom the duty is imposed,
or in other words, as directory only. The neglect of them may be penal indeed, but it does not affect the validity of
the act done in disregard of them.68
Crawford, in Statutory Construction69 says:
As a general rule, a statute which regulates the manner in which public officials shall exercise the power vested in them, will
be construed as directory rather than mandatory, especially where such regulation pertains to uniformity, order an
convenience, and neither public nor private rights will be injured or impaired thereby. If the statute is negative in form or if
nothing is stated regarding the consequences or effect of non-compliance, the indication is all the stronger that it should not
be considered mandatory. But if the public interest or private rights call for the exercise of the power vested in a public
official, the language used, though permissive or directory in form, is in fact peremptory or mandatory as a general rule. For
example, where the statute declared that the Board of Supervisors may, if deemed advisable, levy a special tax to pay
certain debts which their current revenue is insufficient to pay, the statute was held to be mandatory. After all, the power
vested in the officer is not for his benefit but for the benefit of the public or of third persons and it must be exercised. A duty
is imposed upon the officer rather than a privilege. Conversely, however, where the statute simply regulates the manner in
which public officers shall exercise the power vested in them in order to promote uniformity, order and convenience, the
statue is predominantly intended for the benefit of the officers. Moreover, [the] word mandatory in form should be construed
to be permissive even where statutes regulating the exercise of powers by public officials are concerned, if the permissive
construction will effect justice, or save a proceeding from invalidity, provided, however, that such a construction does not
destroy or impair the rights of the public, or of any member thereof. In other words, whether a statutory requirement, which
relates to official action, shall be considered mandatory or permissive depends upon the effect the suggested construction
has upon public and private rights. If the requirement of the statute must be regarded as mandatory in order to promote
justice, it should be so construed; and if a mandatory construction operates mischievously, then the statute should be given
a permissive construction, for in construing a statute it is not reasonable to presume that the legislature intended to violate
a settled principle of natural justice or to destroy a vested right or to enact a mischievous law.
Bose J., speaking on behalf of the court in Pratap Singh v Krishna Gupta,70 observed:
We deprecate this tendency towards technicality; it is the substance that counts and must take precedence over mere form.
Some rules are vital and go to the root of the matter; they cannot be broken: others are only directory and a breach of them
can be overlooked provided there is substantial compliance with the rules read as a whole and provided no prejudice
ensues; and when the legislature does not itself state which is which, judges must determine the matter and, exercising a
nice discrimination sort out one class from the other along broad-based, commonsense lines.
Page 2 of 8
When an enactment confers a power on a certain officer and prescribes the manner in which the power is to be
exercised, it is common sense that the power should be exercised in the manner prescribed. There is no doubt that
a distinction exists between the exercise of a power and the performance of a duty. But when a manner of exercise
of power is prescribed, it cannot be held that the exercise of the power in that manner becomes a performance of
the duty only because the particular manner is prescribed with a view to protect the interests of the person to be
affected thereby.
In Corpus Juris71, the law on this subject is stated thus:
Statutes which confer upon a public body or officers power to act for the sake of justice or which clothe a public body or
officer with power to perform acts which concern the public interests or the rights of individuals, are generally regarded as
mandatory, although the language is permissive merely since they are construed as imposing duties rather than conferring
privileges. On the other hand, where statutes are purely enabling in character, simply making that legal and possible,
which, otherwise, there would be no authority to do, and no public interests [and] private rights are involved, they will be
construed as permissive. Generally statutes, directing the mode of proceeding by public officers, designed to promote
method, system, uniformity and dispatch in such proceeding, will be regarded as directory if a disregard thereof will not
injure the rights of parties, and the statute does not declare what result shall follow in non-compliance therewith, nor contain
negative words importing a prohibition of any other mode of proceeding than that prescribed. Especially is this true when to
hold void acts done in violation of the statute would work serious inconvenience, or would cause injustice to persons having
no control over those entrusted with the duty enjoined and at the same time would not promote the main object of the
statute. Permissive words in a statute in respect of officers or courts will not be construed as mandatory, where such
construction would create a new public obligation and it has been held that even mandatory words or provisions in a statute
defining the duties of administrative officers may be construed as directory only, unless something in the body of the statute
indicates the contrary.
According to Sutherland:72
One of the places where rules for the construction of statutes as mandatory or directory has been most clearly defined are
with respect to provisions directing action or conduct on the part of public officers. Where statutes provide for the doing of
acts or the exercise of power or authority by public officers, and private rights or the public interest require the doing of such
acts or the exercise of such power or authority, they are mandatory, regardless of whether they are phrased in imperative
or permissive terms... Where a mandatory construction might do injury to some primary public interest, as by hampering the
taxing power, a directory construction might be applied if the general purpose of the statute may thus be effected without
injury to private rights.
Two Provisions, One Importing Objection to do an Act and the Other not
Where two provisions of law apply to a given act or circumstance, one requiring a person to do a certain set of
things and the other imposing no such obligation, the person must do the act because if he were to rely upon the
other provision, he would be infringing, or not complying with, the mandatory provision. By doing the act he would
be complying with, or not infringing, any of the two provisions, whereas by not doing the act he would not be
complying with one provision at least. Since he must comply with all the provisions of law, he must comply with the
provisions requiring him to do a certain act.
In State v Ramchandra,73 the Court had to consider the joint implication of Sections 54 and 56 of the Code of
Criminal Procedure, 1973. While Section 54 laid down in what cases may a police officer arrest a person without
warrant, Section 56 prescribed the procedure to be followed in those cases when instead of making the arrest
himself, the police officer deputes an officer subordinate to him to do so. On the basis of the fact that power was
being delegated by the police power, the Court held that the procedure under Section 56 must be considered
mandatory, and it was incumbent on the police officer to deliver to the officer required to make the arrest an order in
writing and want of such a written order would vitiate the arrest.
No Limitation on Powers Unless Justified by Express Words or Necessary Implication
Limitations should not be placed on powers conferred by enactments, unless they are justified by express words or
by necessary implication. The words after 15 days in Section 7 of the Hyderabad City Improvement Board
Page 3 of 8
Regulations make it incumbent on the acquiring authority to start proceedings after the expiry of the period. They do
impose limits on the time before which the statutory power of acquiring property should not be started, but not when
it should be completed. There being no express limits in the powers of acquisition, nor there being anything in the
regulation to imply such restrictions, the restrictions cannot be imposed merely because the exercise may result in
hardship. If such hardship results from a proper construction of the statute, it cannot be a reason for different
interpretation that is justified neither by express terms of the enactment nor by necessary implication.74
Where authority is granted to public officers to do a thing in a certain way, the manner of doing the thing is
mandatory, or jurisdictional, and a limitation on the authority of the officer, even though the doing of the thing in the
first place may be discretionary.75 If the statutory provision which uses imperative words imposes an obligation or
duty on a public officer subject to certain other requirements, the public officers failure to comply with the said
requirements does not make his subsequent action invalid. The use of imperative words does not involve the
invalidating consequence in connection with such provisions. On the other hand, if the use of the imperative words
is to be found in a provision that confers upon a public officer a privilege or power subject to certain conditions and
these conditions are not complied with, the exercise of that power or privilege would be rendered invalid. Even in
respect of duties, the performance of which is required subject to certain conditions, if it appears that the failure to
comply with the conditions is likely to lead to injustice or patent hardship, then the court would hesitate to come to
the conclusion that the non-performance of the conditions does not involve the invalidating of the performance of
duty itself.
In State v Andheri Bus Service,76 the Court had to consider whether Section 12 (6) of the Industrial Disputes Act,
1947, was mandatory or directory. Section 12 (6) read as follows:A report under this section shall be submitted
within fourteen days of the commencement of the conciliation proceedings or within such shorter period as may be
fixed by the appropriate Government. The Court observed that it was not as if at the expiry of fourteen days, the
conciliation officer would virtually become functus officio and the proceedings which were validly pending before
him till then would become wholly invalid thereafter. Hence, if Section 12 (6) was construed strictly, it would lead to
an unfortunate construction that if conciliation proceedings were not completed within fourteen days, the dispute
would become redundant. The Court held that Section 12 (6) ought to be read as discretionary.
In Commissioner of Income Tax, Chandigarh v Pearl Mechanical Engineering and Foundry Works,77 the Court was
considering Section 269D (1) of the Income Tax Act, 1961, which provided that proceedings for acquisition of any
immovable property shall be initiated by publication of a notice to that effect in the official gazette. Under sub-
section (2), notice had to be served on the transferor, transferee, etc. The question that arose before the Court was
whether service of notice under sub-section (2) prior to the publication of notice in the gazette would render the
entire proceeding illegal. The court observed that in view of the express language used, the proceedings for
acquisition of property could be initiated only by publication of the notice in the official gazette and until the
publication was so made, the proceedings could not be deemed to have been initiated. The court opined that sub-
section (1) was the clause that conferred jurisdiction on the competent authority to initiate proceedings upon the
publication of the notice, whereas sub-section (2) complied with the requirements of natural justice. Any error or
mistake committed in the service of the notice would not in any manner affect the jurisdiction conferred upon the
competent authority to take proceedings for acquisition of property. Thus, it was held that the personal service of
notice upon the transferor or the transferee prior to the publication of notice in the official gazette would not render
the whole proceedings illegal and without jurisdiction, but would merely be an irregularity. Thus, to this extent sub-
section (1) was viewed as directory and not mandatory.
Direction to do Duty within Specified Time
Where a public officer is directed by a statute to perform a duty within a specified time, the provisions as to time are
only directory. Sutherland observed:78
A statute specifying a time within which a public officer is to perform an official act regarding the rights and duties of others,
and made with a view to the proper, orderly, and prompt conduct of business, usually directory, unless the phraseology of
the statute, or the nature of the act to be performed and the consequences of doing or failing to do it at such time, is such
that the designation of time must be considered a limitation on the power of the officer. So a statute requiring a public body,
merely for the orderly transaction of business, to fix the time for the performance of certain acts which may as effectually be
done at any other time is usually regarded as directory. But such rule of construction is not to be applied to the acts of
private parties, when the law to be construed creates no new rights or remedy, but is designed to regulate one [s] already
Page 4 of 8
existing. So under statutes conferring privileges on private individuals for a certain period of time, such privileges cannot be
exercised after the lapse of the time allowed. As a general proposition, the rule with respect to statutory directions to
individuals is the opposite of that which obtains with respect to public officers. When a statute directs things to be done by a
private person within a specified time and makes his rights dependent on proper performance thereof, unless the failure to
perform in time may injure the public or individuals, the statute is directory. When an individual is the person not strictly
complying, he has no grounds for complaint. Under statutes of procedure, failure to complete required steps within the time
specified is fatal to the case.
When a statute regulates the time at or within which an act is to be done by a public officer or body, it is generally
construed to be permissive only as to the time, for the reason that the public interests are not to suffer by the laches
of any public officer.79 It is well settled that the word shall does not necessarily indicate that the provision is
mandatory. The object of the provision has to be ascertained, and it has to be seen whether a time clause in it is a
matter of substance. In other words, the time clause will not be considered to be mandatory unless its non-
observance will result in the object of the provision being frustrated.80 The courts will hold such provisions to be
mandatory if the nature of the acts to be performed or the phraseology of the statute indicates an intention on the
part of the legislature to exact a literal compliance with the requirement of time. The court seek to achieve a just
result in not ascribing an invalidating effect to the failure of the public officers to observe the time provisions of
statutes; a contrary rule would operate unfairly in prejudicing the rights of persons who have no control over the
conduct of public officers. In Punjab State Electricity Board v Zora Singh,81 the Supreme Court observed the
directory nature of time limits will not apply when injustice or inconvenience is caused to those who can in no way
control those required to undertake the duty unless the time requirements are found to be essential or imperative.
In Executive Engineer v Lokesh Reddy,82 the issue was whether the power provided to the Government under
Section 10 (4-A) of the Industrial Disputes Act, 1947, was directory or mandatory. Section 10 (4-A) read as
follows:Where an industrial dispute has been referred to arbitration and a notification has been issued under sub-
section (3A), the appropriate Government may, by order, prohibit the continuance of any strike or lock- out in
connection with such dispute which may be in existence on the date of the reference. The Karnataka High Court
held:
It is a well-settled principle that if an act is required to be performed by a private person within a specified time, the same
would primarily be mandatory, but when a public functionary is required to perform a public function within a timeframe, the
same will be held to be directory unless the consequences therefore are specific. Hence, the Court held the power to be
directory.
In Nasiruddin v Sita Ram Aggarwal,83 the question was whether Section 5 of the Limitation Act which gave the
power to condone delay, would be applicable where there was a default in depositing the rent within stipulated time
by the tenant under the Rajasthan Premises (Control of Rent and Eviction) Act, 1950. Under Section 13 (4) a tenant
was required to deposit the amount of rent determined by the court within 15 days of the date of determination or
within such further time not exceeding 3 months as may be extended by the court. The Court emphasised the fact
that though rent legislation is normally for the benefit of tenants, benefits could be enjoyed only upon strict
compliance with statutory provisions. Only where the Act provides for extension of time or condonation of default,
the Court possesses the power, and not otherwise. Consequently, the court said that in the absence of such
provisions, it had no power to extend time or condone default.
Where Compliance Discretionary
For deciding whether a provision of law is directory or mandatory, the test to be applied is whether under the law it
is the duty of the person on whom the power is conferred, to exercise that power. If not, it is discretionary.84 A
provision giving a discretionary power leaves the donee of the power free to use or not to use it at his discretion. A
directory provision, however, gives no discretionary power to do or not to do the thing directed. A directory provision
is intended to be obeyed, but a failure to obey it does not render a thing duly done in disobedience of it, a nullity.85
Action in Respect of Statutory Duty
If a provision gives a power coupled with a duty, it is mandatory and whether it does so or not will depend on such
considerations as the nature of the thing empowered to be done, the object for which it is done and the persons for
Page 5 of 8
whose benefit the power is to be exercised.86 In cases in which the statute contains no express denial of the right
to bring an action, the proper course to adopt in order to determine whether it contains some provision to the
contrary within the meaning of the rule stated above is to consider whether it appears from the whole purview of the
Act that it was the intention of the legislature that the remedy provided should be a substitute for the right of action
that would otherwise exist; and in determining this question it is material to consider whether the obligation imposed
by the Act was designed to benefit a particular class of persons (eg, employees) and to compel the employees to
perform certain duties for their benefit.87 It is also material to consider whether the provisions made by the Act for
compelling obedience to its commands is in the nature of a penalty for disobedience or in the nature of
compensation to the person whose rights are affected by the failure to perform the obligations imposed by the Act.
Statutes Relating to Judicial Duties and Proceedings
A statutory requirement relating to a matter of practice or procedure in the courts should be interpreted as
mandatory if it confers upon a litigant a substantial right, the violation of which will injure him or prejudice his case.
On the other hand, a statutory provision regulating a matter of practice or procedure will generally be read as
directory when disregard of it or the failure to follow it exactly will not materially prejudice a litigants case or deprive
him of a substantial right.
In Kasi Bishwanath Dev v Paramananda Routrai,88 the matter before the Court was whether under Section 35B of
the CPC (Costs for causing delay), the payment of costs would be a mandatory condition precedent to the
proceeding of the suit. The relevant portion of the provision read as follows:
The Court may for reasons to be recorded, make an order requiring such party to pay to the other party such costs as
would, in the opinion of the Court, be reasonably sufficient to reimburse the other party in respect of the expenses incurred
by him in attending the Court on that date of such order, shall be a condition precedent to the further prosecution of.
The Court held that the cause of justice was paramount and a procedural law could not be raised to the pedestal of
a mandatory provision as would take away the courts right in a given case to exercise its discretion in the interests
of justice. Hence, the language in which Section 35B of the CPC had been expressed must be considered to be
directory.
It has also been held that identical provisions in the statute are either directory, or a substantial compliance is
sufficient even if treated as mandatory in a general sense, and that the prosecution can fail only if prejudice is
shown to have been caused to the accused.89
In Julius v Lord Bishop of Oxford,90 Lord Cairns said:
The question has been argued and has been spoken of by some of the learned judges in the courts below as if the words it
shall be lawful might have a different meaning and might be differently interpreted in different statutes, or in different parts
of the same statute. I cannot think that this is correct. The words it shall be lawful are not equivocal. They are plain and
unambiguous. They are words merely making that legal and possible which there would otherwise be no right or authority
to do. They confer a faculty or power, and they do not of themselves do more than confer a faculty or power. But there may
be something in the nature of thing empowered to be done, something in the title of the person or persons for those benefit
the power is to be exercised, which may couple the power with a duty, and make it the duty of the person in whom the
power is reposed, to exercise that power when called upon to do so...They confer a legislative right and power on the
individual named to do a particular thing, and the true question is not whether they mean something different, but whether
regard being had to the person so enabledto the subject-matter, to the general objects of the statute, and to the person or
class of persons for whose benefit the power may be intended to have been conferredthey do, or do not, create a duty in
the person on whom it is conferred, to exercise it.
Statutes Regulating Elections and Tax Proceedings
In some cases the mandatory or directory nature of the provisions has been determined with reference to the
particular subjects dealt with by the statute. Statutory provisions relating to conduct of public elections are often at
times given permissive construction where irregularities of election offices are free from fraud and have not
interfered with a full and fair expression of the voters choice. So, if the statute confers an authority on a tribunal to
Page 6 of 8
proceed with an election petition in accordance with the procedure laid down by the statute and, when it does not
state the consequences of non-compliance with the prescribed procedure, the principle, that an election petition
seeking interference with the success of a candidate must strictly conform to the requirements of the law, has no
application. Any defect arising from the strict observance of the rules cannot be remedied by the tribunal on proper
application.91 Statutes regulating the assessment and collection of taxes are, on the other hand, given a
mandatory construction if they are designated for the benefit and protection of the taxpayer but there is no rule that
every provision in a taxing statute is mandatory.92
In Hari Vishnu v Ahmad Ishaque,93 Rule 47 (1)(c) of the Representation of the People (Conduct of Elections and
Election Petitions) Rules 1951 provided that a ballot paper shall be rejected if it is spurious or if it was so damaged
or mutilated that its identity as a genuine ballot paper could not be established. The Court held that due to the
nature of the provision, there could be no degrees of compliance as far as rejection of ballot paper was concerned.
In the opinion of the Court, that was conclusive to show that the provision is mandatory.
In Shah Mahommad Umair v Ram Charan Singh,94Section 82 of the Representation of the Peoples Act, 1951, was
under consideration. The provision read as follows: A petitioner shall join as respondents to his petition all the
candidates who were duly nominated at the election other than himself if he was so nominated. The Court held that
the provision was merely directory in spite of the use of the words shall join. It was observed that the words shall,
torn from its context, could not make the provision of the section where the word was used obligatory and
imperative. The failure of candidates, who were duly nominated but had withdrawn their candidature, to join as
respondents did not entail the dismissal of the petition on that ground alone.
In AS Subbarao v M Muthiah,95 the Court was considering Section 85 of the Representation of the Peoples Act,
1951. The provision read as follows: if the provisions of Section 81, Section 83 or Section 117 are not complied
with, the Election Commission shall dismiss the petition. The Court had to decide whether it was imperative on the
part of the Election Commission to dismiss the election petition for defective verification. The Court held that the
word shall in the section was not conclusive, and the intention of the legislature ought to be gathered on a reading
of the enactment as a whole. The Court further observed that whatever might have been the powers of the Election
Commission under Section 85, when once the matter came before the tribunal, it was governed by Section 90 (4)
and under the latter section, the tribunal has discretion in the matter of dismissing the petition for non-compliance
with the requirements of Section 83.
In Ajit Kumar v State of West Bengal,96 the Court was considering Section 45 (2) of the Calcutta Municipal Act,
under which there was a public duty imposed on the state government to fix the date for the general election. The
Court held this duty to be mandatory, as if it were to not be carried out, no election could be held and it would be
impossible to carry on the work of municipal administration of the city in accordance with the provisions of the Act.
In other words, the purpose of the Act would be frustrated. The Court observed that the state governments neglect
or failure, in the matter of such performance, fatal to the elections would work serious general inconvenience and
injustice to the municipal electorate and the intending candidates who have no control over the state government,
and at the same time would not promote the main object of the legislature, namely, the carrying on of the civil
administration of the city by elected councillors and aldermen.
In Rambharoselal Gahoi v State of Madhya Pradesh,97 the Court had to construe Section 18A (1) of the CP and
Berar Municipalities Act, 1922. The relevant portion of the provision read as follows: A motion of no-confidence may
be moved by any member of a committee, after giving such notice as may be prescribed by rules made under this
Act. The Court had to decide whether the obligation to give notice (10 days under the rules) was mandatory or
directory. The Court held that the obligation was mandatory, and observed:
The rule of ten days which is framed is in the interest of municipal administration and also of the electors whose
representative the president is. The section which enables a vote of no-confidence to be moved enables the members of
the committee to get rid of a president with whom they cannot work. But in this clash of principles, the Legislature has
thought it wise to put in a provision about ten clear days. We cannot regard that provision, in the circumstances, as merely
directory. In our judgment, that provision has to be complied with and the State Government was perfectly correct when it
declined to accept the resignation based on a vote of no-confidence moved improperly.
Generally, a mandatory provision is to be construed strictly while a directory provision is to be construed liberally.
There have been many instances where the court has held that a substantial compliance with the statute or with the
Page 7 of 8
rules framed thereunder is enough even if there be no literal compliance. There is no reason to adopt a different line
of reasoning in the construction and interpretation of the Constitution. In all such cases, one must consider the real
purpose of the provision whether statutory or constitutional, to find out whether notwithstanding the apparent
mandatory form of the words used any deviation therefrom was to be struck down. The non-compliance with the
provisions of a statute or Constitution will not necessarily render a proceeding invalid if, by considering its nature,
design, and the consequences which follow from its non-observance, one is not led to the conclusion that the
legislature or the Constitution-makers intended that there should be no departure from the strict word used. It does
not, however, mean that where a provision is directory, the persons or authorities to whom it applies can make a
habit of disregarding it on the ground that they are not imperatively required to follow it and can follow or not follow it
as they choose.98
68 . Maxwell, Interpretation of Statute, eleventh edn, pp 369, 380; Montreal Street Rly Co v Normandi [1917] AC 170, p
174, AIR 1917 PC 142; Vithaldas Kedar Nath v Income-tax Officer, Rampur AIR 1969 All 390, p 392, per Oak CJ;
Amananda v Compensation Officer AIR 1966 A&N 81, p 82-83, per Mehrotra CJ: object the Act to be considered.
69 . Crawford, Statutory Construction pageSection 529-31.
70 . AIR 1956 SC 140 [LNIND 1952 SC 76].
71 . Corpus Juris, vol 59, pp 1076-78; Jharia Water Board v Jagdamba Loan Co AIR 1938 Pat 539, p 541, quoting
Maxwell:
When a public duty is imposed and the statute requires that it shall be performed in a certain manner, or within a certain
time, or under other specified conditions such prescriptions maywell be regarded as intended to be directory only in
cases where injustice or inconvenience to others who have no control over those exercising the duty would result if
such requirements were essential and imperative.
72 . Sutherland, Statutory Construction, third edn, Vol III, pp 86-90.
73 . AIR 1955 All 438 [LNIND 2014 ALL 271].
74 .Butool Begum v State of Andhra Pradesh AIR 1956 Hyd 26: failure to acquire property within a reasonable time would
not result in the nullification of the earlier notifications published before 16 years under ss 3 and 5.
75 . Sutherland, Statutory Construction, third edn, vol III, p 89.
76 . AIR 1955 Bom 324 [LNIND 1955 BOM 10].
77 . (2004) 4 SCC 597 [LNIND 2004 SC 506].
78 . Sutherland, Statutory Construction, third edn, vol III, p 107; Municipal Committee, Khandwa v Radha Kisan AIR 1930
Nag 157, 165.
79 .Looney v Huges 26 NY 514.
80 .Lakshman Shastri v State of Bihar AIR 1967 Pat 160, per Sahai J; Ramchander Prasad Sahi v State of Bihar AIR 1965
Pat 250.
81 . (2005) 6 SCC 776 [LNIND 2005 SC 609]: principle reaffirmed in Bhavnagar University v Paltana Sugar Mills (P) Ltd
(2003) 2 SCC 111 [LNIND 2002 SC 765].
82 . 2003 (4) Karlj 151 [LNIND 2003 KANT 294].
83 . (2003) 2 SCC 577 [LNIND 2003 SC 112].
84 .Balak Ram v Sitaram AIR 1954 HP 6.
85 .DrigrajKuer v Amar Nath Singh AIR 1960 SC 444 [LNIND 1959 SC 222]; Jagdish Chandra Gupta v Union of India AIR
1965 Punj 129.
86 .Profulla Chandra v Calcutta Credit Corpn AIR 1965 A&N 21, p 23, per Dutta J; notice to judgment-debtor before
auction-sale.
Page 8 of 8
87 .Graves v Lord Wimborne [1898] 2 QB 402.
88 . AIR 1982 Ori 80 [LNIND 1981 ORI 6].
89 .Food Inspector, Punalur Municpality v K Hari Kumar (1991) Cr LJ 641 (Ker); relying on Dalchand v Muncipal Corpn
AIR 1983 SC 303 [LNIND 1982 SC 105], (1983) Cr LJ 448.
90 . [1880] 5 AC 214 , p 235.
91 .Mahesh Prasad Sinha v Manjay Lal AIR 1964 Pat 53.
92 .Director of Inspection, Income-tax, New Delhi v Pooran Mall & Sons AIR 1975 SC 67 [LNIND 1974 SC 283].
93 . AIR 1955 SC 245.
94 . AIR 1954 Pat 225.
95 . AIR 1954 Mad 336 [LNIND 1953 MAD 26].
96 . AIR 1954 Cal 49 [LNIND 1952 CAL 65], pp 55-56.
97 . AIR 1955 Nag 35.
98 .MunnaLal v HR Scott AIR 1955 Cal 451 [LNIND 1954 CAL 178], p 458.
End of Document
Conclusion
NS Bindra
Conclusion
This chapter brought home how words whilst indicative of legislative intention were not determinative of it. Every
word in a statute is part of a larger statutory scheme and needs to be accordingly construed. The case law in the
main brings home the fact that it is the purpose of the statute which would determine the connotation of particular
words and not the other way around. The interchangeable use of may and shall shows that a determination that the
language is plain is reached through interpretation.
Table 2.2 Mandatory and Directory Provisions: Areas of Law and Interpretation
S. No Name of Case Expression Used Statute and Nature of Whether

and Citation Provision Provision interpreted as
mandatory or
directory
1. Ramchandar May Code of Civil Civil Procedure Mandatory

Singh v B. Gopi Procedure, 1908 -
Krishna Dass Order XXXII, Rule
AIR1957 Pat 260 3
2. Rani Drig Raj Kuer May Code of Civil Civil Procedure Mandatory
v Raja Sri Amar Procedure, 1908-
Krishna Narain Order XXIII, Rule 3
Singh
AIR 1960 SC 444
[LNIND 1959 SC
222]
3. Kedarnath v Shall Provincial Small Civil Procedure Mandatory

Mohan Cause Courts Act,
Lalkesarwar 1887 - Section 17
(2002) 2 SCC 16
[LNIND 2002 SC
23]
4. Nadella Shall Code of Civil Civil Procedure Directory

Satyanarayana v Procedure - Order
Yamanoori III, Rule 1
Venkata Subbiah
AIR 1957 AP 172
5. KajariLal Agarwal Shall West Bengal Land Civil Procedure Mandatory

v Union of India (Requisition and
AIR 1966 SC 1538 Acquisition) Act,
[LNIND 1965 SC 1948 - Section 8
395]
Page 2 of 18
Conclusion
6. Amar Krishna v Shall Uttar Pradesh Civil Procedure Directory

Deputy Commr Court of Wards
AIR 1958 All 710 Act, 1912 - Section
[LNIND 1957 ALL 56
256]
7. Hungerford Shall Specific Relief Act, Contract Law Mandatory

Investment Trust 1963 - Section 28
Ltd v Haridas
Mundhara
AIR 1971 Cal 182
[LNIND 1970 CAL
189]
8. Atlas Cycle Shall Essential Delegation of Directory

Industries Ltd. v Commodities Act, Power
State of Haryana 1955 - Section 3
(1979) 2 SCC 196 (6)
[LNIND 1978 SC
277]
9. JaganNath v Shall Representation of Election Laws Directory

Jaswant Singh AIR the Peoples Act,
1954 SC 210 1951 - Section 82
[LNIND 1954 SC
8]
10. Baidyanath v Shall Representation of Election Laws Mandatory

Sitaram the People Act,
[1970] 1 SCR 839 1951 - Section 23
[LNIND 1969 SC (2)
264]
11. K Narasimahiah v Shall Mysore Town Government Directory

HG Singri Gowda Municipalities Act, Procedure
AIR 1966 SC 330 1951 - Section 23
[LNIND 1964 SC (9)
117]
12. K Pullaya v Shall Andhra Pradesh Government Mandatory

Konarchapalli Co-operative Procedure
Weavers Co-op Society Rules,
P&S Society 1964
AIR 1980 AP 289
[LNIND 1979 AP
193]
13. Chhotabhai Shall Madhya Pradesh Government Mandatory

Jethabhai v State Tendupatta Procedure
of Madhya (Vyapar
Pradesh Viniyaman)
AIR 1966 MP 34 Niyamavali
Sanshodhan
Adhyadesh, 1965 -
Rule 7 (7)
14. Haridwar Singh v Shall Bihar Auction Government Mandatory

Begum Samruj Rules, 1970 - Rule Procedure
AIR 1972 SC1242 10 (1)
[LNIND 1972 SC
132]
Page 3 of 18
Conclusion
15. BaiKamla v Mane May Requisitioning and Government Mandatory

Patil Acquisition of Procedure
AIR1966 Guj 37 Immovable
Property Act, 1952
- Section 4 (1)
16. MI Builders Pvt Ltd Shall Uttar Pradesh Government Mandatory

v Municipal Procedure
Radheyshyamsah Corporation
u (1999) 6 SCC Adhiniyam, 1959 -
464 [LNIND 1999 Section 114
SC 612]
17. Jharia Water Shall Jharia Water Government Mandatory

Board v Jagdamba Supply Act, 1914 - Procedure
Loan Co Section 58 (b)
AIR1938 Pat 539
18. Mohan Singh v Shall Land Acquisition Government Mandatory

International Act, 1894 - Section Procedure
Airport Authority of 4 (1)
India
(1997) 9 SCC 132
19. MachhuaMatsyaVi Shall U.P. Minor Government Mandatory

kasSahkariSamiti Minerals Procedure
Ltd v State of Uttar (Concession)
Pradesh AIR 1986 Rules, 1963 - Rule
All 300 [LNIND 23
1985 ALL 355]
20. State of Punjab v Shall Constitution of Legislative Directory

Satyapal India - Article 199 Procedure
AIR 1969 SC 903 (4)
[LNIND 1968 SC
182]
21. State of Shall Suppression of Penal Laws Mandatory

Maharashtra v Immoral Traffic in
Jugmanderlal AIR Women and Girls
1966 SC 940 Act, 1956 - Section
[LNIND 1965 SC 3 (1)
360]
22. Banarasi Das v Shall Uttar Pradesh Penal Laws Mandatory

Cane Commr, Sugar Factories
Uttar Pradesh AIR Control, 1938 -
1955 All 86 Section 18 (1)
[LNIND 1954 ALL
200]
23. Manglaram v State Shall Rajasthan Armed Penal Laws Mandatory

of Rajasthan AIR Constabulary Act,
1970 Raj 32 1950 - Section 4
[LNIND 1969 RAJ
101]
24. Habib Khan v Shall Prevention of Food Penal Laws Mandatory

State of Madhya Adulteration Act,
Pradesh 1954 - Section 11
(1971) MPLJ 883
Page 4 of 18
Conclusion
25. Arunima Das v May West Bengal Service Law Directory

Secretary Board of Secondary
Secondary Education Act,
Education 1950
AIR 1957 Cal 182
[LNIND 1956 CAL
134]
26. Ajit Singh v State Shall Punjab Trust Service Law Directory
of Punjab Services
(1983) 2 SCC 217 (Recruitment and
[LNIND 1983 SC Conditions of
81] Service) Rules,
1978 - Rule 9
27. Dinkar Anna Patil May Maharashtra Service Law Mandatory

v State of Services
Maharashtra (Regulation of
(1999) 1 SCC 354 Seniority) Rules,
1982 - Rules 4
28. LachmiNarain v Shall Bengal Finance Taxation Mandatory

Union of India AIR (Sales Tax) Act,
1976 SC 714 1941 - Section 6
[LNIND 1975 SC (2)
465]
29. Hindusthan Shall Central Excises Taxation Directory

General Electrical and Salt Act, 1944
Corporation Ltd. v - Section 4
Superintendent of
Central Excise,
AIR1966 Pat 248
30. Pioneer Motors v Shall Travancore District Taxation Directory

Municipal Council, Municipalities Act -
Nagarcoil Sections 78
AIR 1967 SC 684
[LNIND 1961 SC
34]
31. DaluramPannalal v May Madhya Pradesh Taxation Directionary

Asstcommr, Sales- General Sales Tax
tax AIR 1963 SC Act, 1958 - Section
1581 [LNIND 19
1963 SC 61]
32. Ramchandra v Shall Bombay Tenancy Tenancy Laws Mandatory

Govind Joti Act, 1953 - Rule 5
(1975) SCC 559 (3)
33. Hiralal v Shall Bihar Land Tenancy Laws Directory

Rampadarath Reforms (Fixation
Singh of Ceiling Area
[1969] 1 SCR 328 and Acquisition of
[LNIND 1968 SC Surplus Land)
162] Rules, 1963 - Rule
19
34. Dharendra Krishna Shall Bengal Patnitaluk Tenancy Laws Mandatory

Mukherji v Regulations, 1819
Niharganguly, AIR
Page 5 of 18
Conclusion
1943 Cal 266
35. BP Khemka Pvt Shall West Bengal Tenancy Laws Directory

Ltd v Birendra Tenancy Act 1956
Kumar Bhowmick - Section 17 (3)
AIR 1987 SC 1010
[LNIND 1987 SC
921]
36. Appannah v State Shall Minimum Wages Welfare Laws Directory

of Mysore Act, 1948 - Section
AIR1962 Mys 157 5 (1)
*The expression Government Procedure connotes substantive and procedural obligations on the government.
Table 2.3 Interpretation of Mandatory and Directory provisions (2003-2013)
S. No. Name of Case and Provision in question Context of the case Interpretation given
Citation by the Court
1. Pedda Guruv Karnataka Minor The question before The Court observed
a Reddy v State of Mineral Concession the Court was whether that process
Karnataka, 2005 (2) Rules, 1994 - Rule 31- the conditions of Rule established for the
Karlj 226 [LNIND 2004 N: 31-N were mandatory, grant of lease under
KANT 482] and compliance was a the provision, by way
(1) An application for condition precedent to of a tender-cum-
renewal of quarrying the renewal of a mining auction, was to secure
lease under this lease. the highest bidder to
Chapter shall be made quarry the mineral.
in Form-R to the Hence, the imposition
Director atleast ninety of the condition that the
days before the expiry application for renewal
of the lease. The shall accompany the
application shall be necessary amount for
accompanied by a considering the grant
Treasury Challan for of renewal, was only to
having paid the eliminate applicants for
difference of the renewal who were
amount of Security unable to pay the said
Deposit, if any, to be sum so as to extend an
paid by the lessee at opportunity to others to
the prevailing rates and secure the grant of
a Treasury Challan for lease. Hence, the
an amount equal to the Court held that failure
amount specified in to abide with the rule
Sub-rule (2) as would result in
consideration for the rejection of the
renewal of the lease. renewal. The Court
held that keeping in
mind the purpose of
the rules and the
prescribed
consideration to
accompany the
application for renewal,
essential for its validity,
the word shall was to
be considered as
mandatory.
Page 6 of 18
Conclusion
2. Kailash v Nankhu, Code of Civil The question before The Court held that
(2005) 4 SCC 480 Procedure, 1908 Order the Court was whether though the power of
[LNIND 2005 SC 344] VIII, Rule 1: a defendant could file a courts under the
written statement after proviso appended to
The defendant, shall thirty days i.e. was the Rule 1 of Order VIII
within thirty days from obligation to file within was circumscribed by
the date of service of thirty days mandatory the words - shall not be
summons on him, or obligatory. later than ninety days
present a written but the consequences
statement of his flowing from non-
defence: extension of time were
not specifically
provided though they
Provided that where
may be read by
the defendant fails to
necessary implication.
file the written
The Court observed
statement within the
that merely because a
said period of thirty
provision of law was
days, he shall be
couched in a negative
allowed to file the
language implying
same on such other
mandatory character,
day, as may be
the same was not
specified by the Court,
without exceptions.
for reasons to be
The courts, when
recorded in writing, but
called upon to interpret
which shall not be later
the nature of the
than ninety days from
provision, may,
the date of service.
keeping in view the
entire context in which
the provision came to
be enacted, hold the
same to be directory
though worded in the
negative form.
Hence, the Court held

that the provision was
directory and not
mandatory, and delay
in filing could be
condoned by Courts.
3. Rani Kusum v Code of Civil The question before The Court held that the
Kanchan Devi, (2005) Procedure, 1908 - the Court was whether purpose of providing
6 SCC 705 [LNIND Order VIII, Rule 1: a defendant could file a the time schedule for
2005 SC 618] written statement after filing the written
The defendant, shall thirty days i.e. was the statement under the
within thirty days from obligation to file within provision was to
the date of service of thirty days mandatory expedite and not to
summons on him, or obligatory. scuttle the hearing.
present a written The provision spelt out
statement of his a disability on the
defence: defendant. It did not
impose an embargo on
the power of the Court
Provided that where
to extend the time. The
Court observed that
file the written
though the language of
the proviso was
couched in negative
days, he shall be
form, it did not specify
allowed to file the
Page 7 of 18
Conclusion
same on such other any penal

day, as may be consequences flowing
specified by the Court, from the non-
for reasons to be compliance. The
recorded in writing, but provision being in the
which shall not be later domain of the
than ninety days from procedural law, it had
the date of service. to be held directory
and not mandatory.
The power of the Court
to extend time for filing
the written statement
beyond the time
schedule provided was
not completely taken
away. The Court
qualified its
observations to the
extent of observing that
keeping in view the
need for expeditious
trial of civil cases which
persuaded Parliament
to enact the provision
in its present form,
ordinarily the time
schedule contained in
the provision was to be
followed as a rule and
departure therefrom
would be by way of
exception.
4. Dove Investments Pvt. Companies Act 1956 - The question before The appellant
Ltd. v Gujarat Industrial Section 108: the Court was whether contended that since
Inv. Corporation Ltd., the obligation to the provisions do not
(2006) 2 SCC 619 A company shall not register a transfer of provide for any penalty
[LNIND 2006 SC 75] register a transfer of shares within a or consequences in the
shares in, or particular period of event of failure to
debentures of, the time was mandatory or comply therewith and
company, unless a directory. in that view of the
proper instrument of matter, the said
transfer duly stamped provisions must be
and executed by or on held to be directory in
behalf of the transferor nature. In any event,
and by or on behalf of the fact that the
the transferee and Company can move
specifying the name, the Central
address and Government for
occupation, if any, of extension of time itself
the transferee, has indicates that the
been delivered to the provisions are directory
company along with and not mandatory.
the certificate relating
to the shares or The Court observed
debentures or if no that even if a statute is
such certificate is in directory in nature, the
existence, along with same should be
the letter of allotment substantially complied
of the shares or with. What would
debentures: satisfy the
Page 8 of 18
Conclusion
requirements of
substantial compliance
would depend upon the
fact of each case. The
Court held that Section
108 required the
applicant desiring to
obtain the registration
of transfer of shares in
its favour to comply
with the provisions.
Hence, it was for the
applicant to comply
with all formalities. If it
did not do so, it could
not make the company
bound to effect the
transfer, unless
sufficient and cogent
reasons were
assigned. Hence, the
time specified in the
aforementioned
provisions for filing of
an application in the
prescribed form
mandatorily had to be
complied with.
5. R.N. Jadi v Code of Civil The question before The Court observed
Subhaschandra, Procedure, 1908 - the Court was whether that all the rules of
(2007) 6 SCC 420 Order VIII, Rule 1: the obligation to procedure were the
[LNIND 2007 SC 843] register a transfer of handmaid of justice.
The defendant, shall shares within a The language
within thirty days from particular period of employed by the
the date of service of time was mandatory or draftsman of
summons on him, directory. procedural law may be
present a written liberal or stringent, but
statement of his the fact remains that
defence: the object of
prescribing procedure
is to advance the
Provided that where
cause of justice. In an
adversarial system, no
file the written
party should ordinarily
be denied the
opportunity of
days, he shall be
participating in the
allowed to file the
process of justice
same on such other
dispensation. Unless
day, as may be
compelled by express
specified by the Court,
and specific language
for reasons to be
of the Statute, the
recorded in writing, but
provisions of the CPC,
which shall not be later
or any other procedural
enactment ought not to
be construed in a
manner which would
leave the court
helpless to meet
extraordinary situations
Page 9 of 18
Conclusion
in the ends of justice.
On this basis, the

Court observed that
the provision was not
mandatory but
directory, and the
Court could condone
delay in filing the
written statement on
the furnishing of
sufficient cause.
6. Management, Certified Standing The question before The Court observed

Pandiyan Roadways Orders of the the Court was whether that in a case where
Corp. Ltd. v N. Corporation (enacted past conduct of the dismissal or removal of
Balakrishnan, (2007) 9 under Section 33 of the employee would have service is to be
SCC 755 [LNIND 2007 Industrial Disputes Act, to necessarily be taken ordinarily followed, e.g.
SC 673] 1947) - Clause 17 (5): into account while in a case of grave
deciding the misconduct like
In awarding the punishment to be misappropriation, strict
punishment under this meted out to the enforcement of the rule
standing order the employee. may not be insisted
employer shall take upon. Hence, the Court
into account the gravity held that the
of the misconduct, the concerned provision
previous record of the was directory and not
workman and any mandatory.
other extenuation or
aggravating
circumstances that
may exist.
7. Veneet Agarwal v Securities and The question before The Court observed
Union of India, (2007) Exchange Board of the Court was whether that the provision
13 SCC 116 [LNIND India Act, 1992 - rules framed by SEBI, clearly states that the
2007 SC 1281] Section 31: that were not laid requisite period of 30
before Parliament days for which a rule or
Every rule and every within a period of thirty regulation framed
regulation made under days, would be under the Act is
this Act shall be laid, annulled or not. required to be laid
as soon as may be before the Houses may
after it is made, before be completed in one
each House of session or in two or
Parliament, while it is more successive
in session, for a total sessions. Relying on
period of thirty days previous cases, the
which may be Court held that laying
comprised in one of the rule before both
session or in two or the Houses of
more successive Parliament is merely a
sessions... directory rule and not
mandatory. Hence, the
concerned provision
was held to be
directory and not
mandatory, and even if
the rules were not laid
before the House, non-
compliance with the
laying down of the
Page 10 of 18
Conclusion
rules before the

Parliament could not
be a ground to declare
the rules/ regulations
framed under the
statute as ultra vires.
8. Bachahan Devi v Code of Civil The question before The Court observed
Nagar Nigam, Procedure, 1908 - the Court was the that the mere use of
Gorakhpur, (2008) 12 Order XLI, Rule 25: circumstances in which word may or shall was
SCC 372 [LNIND 2008 the matter may be not conclusive. The
SC 252] ...the Appellate Court remitted to the lower question whether a
may, if necessary, Court. particular provision of a
frame issues, and refer statute is directory or
the same for trial to the mandatory cannot be
Court from whose resolved by laying
decree the appeal is down any general rule
preferred, and in such of universal
case shall direct such application. Such a
Court to take the controversy has to be
additional evidence decided by
required; and such ascertaining the
Court shall proceed to intention of the
try such issues, and Legislature and not by
shall return the looking at the language
evidence to the in which the provision
Appellate Court is clothed. And for
together with its finding out the
findings thereon and legislative intent, the
the reasons therefore... Court must examine
the scheme of the Act,
purpose and object
underlying the
provision,
consequences likely to
ensue or
inconvenience likely to
result if the provision is
read one way or the
other and many more
considerations relevant
to the issue.
The Court interpreted

the provisions to mean
that only in a case
where the Appellate
Court frames issues for
deciding the matter,
can the lower Court be
directed to try the
matter.
9. Zolba v Keshao, (2008) Code of Civil The question before The Court observed
11 SCC 769 [LNIND Procedure, 1908 - the Court was whether that in an adversarial
2008 SC 806] Order VIII, Rule 1: the obligation to system, no party could
register a transfer of ordinarily be denied the
The defendant, shall shares within a opportunity of
within thirty days from particular period of participating in the
the date of service of time was mandatory or process of justice
summons on him, directory. dispensation.
Page 11 of 18
Conclusion
present a written Therefore, unless

statement of his compelled by express
defence: and specific language
of the statute, the
Provided that where provisions of Order
the defendant fails to VIII, Rule 1 of the CPC
file the written or any procedural
statement within the enactment should not
said period of thirty be construed in a
days, he shall be manner, which would
allowed to file the leave the court
same on such other helpless to meet
day, as may be extraordinary situations
specified by the Court, in the ends of justice.
for reasons to be Hence, the Court held
recorded in writing, but the provision to be
which shall not be later directory.
10. Sarla Goel v Kishan Delhi Rent Control Act, In this case, the tenant The Court held that the
Chand, (2009) 7 SCC 1958 - Section 27: did not deposit rent procedure made by the
658 [LNIND 2009 SC with the Rent Legislature on how the
2367] Where the landlord Controller when the rent could be deposited
does not accept any landlord refused to if it was refused to
rent tendered by the accept rent. Hence, it have been received,
tenant within the time was argued by the was a protection given
referred to in Section landlord that the non- to the tenant. Hence,
26 of refuses or compliance with the the said procedure had
neglects to deliver a mandatory provisions to be strictly followed in
receipt referred to of Section 27 was the matter of taking
therein or where there tantamount to default steps in the event of
is a bona fide doubt as in payment of rent. The refusal of the landlord
to the person or tenant argued that the to receive the rent or to
persons to whom the provision was grant receipt to the
rent is payable, the directory, and a tenant. The Court
tenant may deposit different course could observed that it was
such rent with the be adopted if the well settled that
Controller in the landlord refused to whether the word may
prescribed manner. accept rent. could be used as shall,
and such use would
depend upon the
intention of the
Legislature. It was not
to be taken that once
the word may was
used by the Legislature
in Section 27 of the
Act, it would mean that
Legislature was only to
show that the
provisions under
Section 27 of the Act
was directory but not
mandatory.
11. Union of India v A K Army Rules, 1954 - The question before The Court held that the
Pandey, (2009) 10 Rule 34: the Court was whether purpose of Rule 34
SCC 552 [LNIND 2009 the provision in Rule was that before the
SC 1839] The accused before he 34 of the Army Rules, accused is called upon
Page 12 of 18
Conclusion
is arraigned shall be 1954 that the interval for trial, he must be

informed by an officer between the accused given adequate time to
of every charge for being informed of think through the
which he is to be tried charge for which he is charge or charges for
and also that, on his to be tried and his which he is to be tried,
giving the names of arraignment shall not decide about his
witnesses or whom he be less than ninety-six defence and ask the
desired to call in his hours, was mandatory authorities to take
defence, reasonable or not. reasonable steps in
steps will be taken for procuring the
procuring their attendance of his
attendance, and those witnesses. He may
steps shall be taken even decide not to
accordingly. The defend the charges but
interval between his before he decides his
being so informed and line of action, he must
his arraignment shall be given clear ninety-
not be less than ninety- six hours. The Court
six hours or where the observed that a trial
accused person is on before General Court
active service less than Martial entails grave
twenty-four hours. consequences. The
accused may be
sentenced to suffer
imprisonment. He may
be dismissed from
service. The
consequences that
may follow from non-
observance of the time
interval provided in
Rule 34 being grave
and severe, the Court
held that the provision
was absolute and
mandatory. If the
interval period provided
in Rule 34 was held to
be directory and its
strict observance was
not insisted upon, in a
given case, an
accused may be called
upon for trial before
General Court Martial
no sooner
charge/charges for
which he is to be tried
are served. The Court
held that the timeframe
provided in Rule 34
had a definite purpose
and object and must be
strictly observed. Its
non-observance would
vitiate the entire
proceedings.
12. Ram Deen Maurya v Uttar Pradesh Aided The question before The court observed
State of Uttar Pradesh, College Transfer of the Court was whether that if there was any
(2009) 6 SCC 735 Teachers Rules, 2005 - non-compliance with delay in making the
Page 13 of 18
Conclusion
[LNIND 2009 SC 910] Rule 6 (Abridged): any provision of Rule 6 recommendation by

would lead to a transfer the Director of Higher
(i) The transfer application being Education, the rules do
application for rejected. In this case, not provide that the
single/mutual transfer the written consent of recommendations so
shall be submitted to the management was made will not be
the Director, Higher missing. considered by the
Education (ii) It shall be State Government nor
submitted through the did the rule say that if
management along the recommendations
with the written are not received within
consent of both the the stipulated time, the
management. (iii) The State Government
Director, Higher would ignore the
Education shall submit recommendation and
his recommendation to proceed to decide the
the Government within request of the applicant
one month. (iv) The independently. Hence,
Government shall take the Court held that this
decision either on the requirement of this part
basis of of the rule was only
recommendation of the directory and not
Director or on its own. mandatory, and non-
compliance would not
make the application
invalid. The Court
observed that the word
shall need not be given
a mandatory
connotation in each
and every case and the
provision could be
interpreted as directory
instead of mandatory
depending upon the
purpose which the
legislature intended to
achieve as disclosed
by the object; design,
purpose and scope of
the statute. While
interpreting the
concerned provisions,
regard must be had to
the content, subject
matter and object of
the statute in question.
13. May George v Special Land Acquisition Act, The question before The Court observed
Tahsildar, (2010) 13 1894 - Section 9 (3): the Court was whether that in order to declare
SCC 98 [LNIND 2010 non-service of notice a provision mandatory,
SC 521] The Collector shall also would subsequently the test to be applied is
serve notice to the vitiate the Award and as to whether non-
same effect on the title of Government to compliance of the
occupier (if any) of the acquired land. provision could render
such land and on all entire proceedings
such persons known or invalid or not. Whether
believed to be the provision is
interested therein, or to mandatory or directory
be entitled to act for depends upon the
persons so interested, intent of Legislature
Page 14 of 18
Conclusion
as reside or have and not upon the

agents authorised to language for which the
receive service on their intent is clothed. The
behalf, within the issue is to be
revenue district in examined having
which the land is regard to the context,
situate. subject matter and
object of the statutory
provisions in question.
The Court may find out
as what would be the
consequence which
would flow from
construing it in one
way or the other and
as to whether the
Statute provides for a
contingency of the non-
compliance of the
provisions and as to
whether the non-
compliance is visited
by small penalty or
serious consequence
would flow therefrom
and as to whether a
particular interpretation
would defeat or
frustrate the legislation
and if the provision is
mandatory, the act
done in breach thereof
will be invalid.
On the basis of these

observations, the Court
held that failure of
issuance of notice
under Section 9 (3)
would not adversely
affect the subsequent
proceedings including
the Award and title of
the government in the
acquired land. So far
as the person
interested was
concerned, he was
entitled only to receive
the compensation and
therefore, there may be
a large number of
disputes regarding the
apportionment of the
compensation. In such
an eventuality, he
could approach the
Collector to make a
reference to the Court
under Section 30 of the
Act.
Page 15 of 18
Conclusion
14. MRF v Constitution of India - The question before The Court held that the
Manoharparrikar, Article 166 (3): the Court was whether rules of business
(2010) 11 SCC 374 business rules framed framed under the
[LNIND 2010 SC 427] The Governor shall under Article 166 (3) of concerned Article were
make rules for the the Constitution were enacted so as to give
more convenient mandatory or directory. the office of Chief
transaction of the Minister decision
business of the making power, to
Government of the ensure that each
State, and for the ministry does not
allocation among independently pass
Ministers of the said decisions without
business in so far as it consultation. Hence, in
is not business with this case, the rules
respect to which the framed under Article
Governor is by or 166 (3) were to be
under this Constitution considered mandatory.
required to act in his
discretion.
15. J and K Housing Board Jammu & Kashmir The question before The Court held that
v Kunwar Sanjay Land Acquisition Act, the Court was whether when any statutory
Krishankaul, (2011) 10 1990 - Section 4 (1): non-compliance with provision provides a
SCC 714 [LNIND 2011 Section 4 of the Act particular manner for
SC 993] Whenever land in any would render doing a particular act,
locality is needed or is acquisition the said thing or act
likely to be needed for proceedings open to must be done in
any public purpose the be quashed. accordance with the
collector shall notify it - manner prescribed in
the Act. The Court
observed that the
(a) through a public
conditions as
notice to be affixed at
prescribed under
convenient places in
Section 4 (1) have not
the said locality and
been fully complied
shall also cause it to be
with, which, in the
known by beat of drum
opinion of the Court,
and through the local
were not only
Panchayats and
mandatory but all the
Patwaries;
terms provided therein
were to be complied
(b) in the Government with very strictly. By
Gazette; and virtue of the provisions
of the State Act, the
(c) in two daily valuable
newspapers having right/ownership of the
largest circulation in land owners was being
the said locality of taken away, and
which at least one shall hence, those
be in the regional provisions had to be
language. strictly construed. The
object of publication in
terms of Section 4
(1)(c) of the Act was to
intimate the people
who are likely to be
affected by the
notification. Hence, the
Court interpreted the
expression shall to
connote that the
Page 16 of 18
Conclusion
provisions of Section 4
(1) were mandatory.
16. Election Commission Representation of the The question before The Court held that the
of India v Telengana People Act, 1951 - the Court was whether provision was
Rashtriya Samiti, Section 151A: the period of six mandatory. This
(2011) 1 SCC 370 months specified in the decision was premised
[LNIND 2010 SC 1685] ...a bye-election for provision was on a harmonious
filling any vacancy mandatory or directory. construction of Section
referred to in any of the 151A and Article 324 of
said sections shall be the Constitution.
held within a period of
six months from the
date of the occurrence
of the vacancy:
Provided that nothing

contained in this
section shall apply if-
(a) the remainder of

the term of a member
in relation to a vacancy
is less than one year;
or (b) the Election
Commission in
consultation with the
Central Government
certifies that it is
difficult to hold the bye
election within the said
period.
17. Accountant General, Consumer Protection The question before The Court observed
M.P. v S.K. Dubey, Act, 1986- Section 31 the Court was whether that to decide whether
2012 (3) SCALE 124 (2): Rule 6 of the Madhya the laying of rules and
[LNIND 2012 SC 164] Pradesh Consumer Regulations before the
Every rule made by a Protection Rules, 1987, Parliament was
State Government would be ultra vires mandatory or directory,
under this Act shall be because they were not or whether laying was
laid, as soon as may laid before Parliament. a condition precedent
be after it is made, to their operation or
before the State could be neglected
Legislature. without prejudice to the
effect of the rules, each
case must depend on
its own circumstances
or the wording of the
statute under which the
rules were made. On
the basis of this
observation and
precedents before it,
the Court held that the
obligation of laying
rules before Parliament
was directory, and non-
compliance would not
render the rules ultra
vires the Act.
Page 17 of 18
Conclusion
18. Society for Un-aided Right of Children to The question before The Court observed
Private Schools of Free and Compulsory the Court was whether that reading Section 12
Rajasthan v Union of Education Act, 2009 - the obligation to admit (1)(c) as mandatory
India, (2012) 6 SCC 1 Section 12 (1)(c): students from may lead to total
[LNIND 2012 SC 236] disadvantaged prohibition of the rights
...shall admit in class I, backgrounds was guaranteed under
to the extent of at least mandatory or directory. Articles 19 (1)(g), 29
twenty-five per cent of (2) and 30 (1) as
the strength of that interpreted in previous
class, children decisions. On the basis
belonging to weaker of precedents and
section and concerns relating to the
disadvantaged group in applicability of the Act,
the neighbourhood and the Court held the
provide free and provision to be
compulsory elementary directory and not
education till its mandatory.
completion
19. Makarand Dattatreya Mumbai Municipal The question before The Court observed
Sugavkar v Municipal Corporation Act, 1888 - the Court was whether that a reading of the
Corpora-tion of Greater Section 489 (2): the Commissioner was plain language of
Mumbai, 2013 (8) under a duty to order Section 489 gave an
SCALE 236 [LNINDU ...a reasonable period the execution of impression that it was
2013 SC 19] shall be prescribed in construction or repair only an enabling
such notice for carrying work in a situation provision, but if the
such requisition or where the occupant of same was to be read
order into effect, and if, the property had not keeping in view the
within the period so responded to a notice purpose of its
prescribed, such to do the same under enactment and the
requisition or order or Section 354. setting in which it is
any portion of such placed, it was clear
requisition or order is that the Commissioner
not complied with the was duty bound to
Commissioner may ensure that the written
take such measures or notice given to the
cause such work to be owner or occupier
executed or such thing under Section 354 (1)
to be done as shall, in was implemented in its
his opinion be letter and spirit. The
necessary for giving duty cast upon the
due effect to the Commissioner was in
requisition or order so the nature of a public
made; and, unless it is law obligation and in
in this Act otherwise appropriate cases, the
expressly provided, the Court could issue
expenses thereof shall direction for its
be paid by the person enforcement. Hence,
or by any one of the the Court held that
persons to whom such while Section 489
requisition or order was employed the
addressed. expression may, it had
to be read as a
mandatory provision as
it was an exigent duty
cast on a public official.
20. State v N.S. Code of Criminal The question before The Court observed
Gnaneswaran, (2013) Procedure, 1973 - the Court was whether that while determining
3 SCC 594 [LNIND Section 154 (2): giving a copy of an FIR whether a provision
2013 SC 36] to the informant was was mandatory or
Page 18 of 18
Conclusion
A copy of the mandatory, and directory, in addition to

information as whether non- the language used
recorded under sub- compliance with this therein, the Court had
section (1) shall be provision would leave to examine the context
given forthwith, free of the FIR open to be in which the provision
cost, to the informant. quashed under Section was used and the
482. purpose it sought to
achieve. It may also be
necessary to find out
the intent of the
legislature for enacting
it and the serious and
general
inconveniences or
injustice to persons
relating thereto from its
application. The law
which creates public
duties is directory but if
it confers private rights
it is mandatory. The
Court further observed
that in order to declare
a provision mandatory,
the test to be applied
was as to whether non-
compliance of the
provision could render
entire proceedings
invalid or not. Whether
the provision was
mandatory or directory
depends upon the
intent of Legislature
and not upon the
language for which the
intent is clothed. But
the circumstance that
Legislature has used
the language of
compulsive force is
always of great
relevance.
On the basis of this

test, the Court held that
obligation under
Section 154 was
directory, and non-
compliance with the
same would not be a
ground to plead that
the FIR ought to be
quashed.
End of Document
Introduction
NS Bindra
Retrospective Operation of Statutes
Introduction
Retrospective operation is an inaccurate term and opens to various interpretations. The best instances of
retrospective laws are those laws, in which the date of commencement is earlier than enactment, or which validate
some invalid law; otherwise, every statute affects rights which would have been in existence but for the statute. A
statute does not become a retrospective one because a part of the requisites for its action is drawn from a time
antecedent to its passing. All what it means is that save in cases where the law creates a new offence or increases
a penalty, a legislature is not prevented from enacting an ex post facto law but if any such law takes away or
impairs any vested right acquired under an existing law, or creates a new obligation, imposes a new duty or
attaches a new disability in respect to transactions on considerations already past, it must so provide in express
terms or such should be a necessary implication from the language employed.1
Retrospective means looking backwards; having reference to a state of things existing before the Act in question. A
retrospective statute contemplates the past and gives to a previous transaction some different legal effect from that
which it had under the law when it occurred or transpired. Every statute which takes away or impairs a vested right
acquired under existing law or creates a new obligation, imposes a new duty or attaches a new disability in respect
of transactions or considerations already past, must be deemed to be prospective.2 A retrospective law is one
which reaches back and gives to a prior transaction some different legal effect from that which it had under the law
when it took place.3 If an Act provides that as at a past date the law shall be taken to have been that which it was
not, that Act is deemed to be retrospective.4 The question whether a statute operates prospectively or
retrospectively is one of legislative intent. If the terms of a statute are clear and unambiguous, and it is manifest that
the legislature intended the Act to operate retrospectively, it must unquestionably be so construed.5
While considering the question of whether a statute has retrospective operation, the nature of the right affected
needs to be first considered. Where there is a vested right, an amendment will be considered as prospective so as
not to affect the vested right. If the right is merely procedural then normally there is no vested right.6 Corpus Juris7
elaborates on the question as follows:
Literally defined, a retrospective law is a law that looks backward or on things that are past; and a retroactive law is
one that acts on things that are past. In common use, as applied to statutes, the two words are synonymous, and in
this connection may be broadly defined as having reference to state of things existing before the Act in question. A
retroactive or retrospective law, in the legal sense, is one that takes away or impairs vested rights acquired under
existing laws or creates a new obligation, imposes a new duty or attaches a new disability in respect to transactions
or considerations already past.
Different Senses of Referring to Ex Post Facto Laws
It is used in several different senses:

(a) an Act may be called retrospective because it affects existing contracts as from the date of its coming into
operation;
(b) it may be more properly described as retrospective because it applies to the actual transactions which
have been completed or to rights and remedies which have already accrued;
(c) or, it may apply again to such matters as procedure and evidence; and in each of these matters
retrospective legislation has a different effect.8 The terms retroactive and retrospective are synonymous in
judicial usage and may be employed interchangeably. The term ex post facto used with respect to law
Page 2 of 5
Introduction
signifies something done so as to affect another thing that was committed before, in other words, refers to
the law which affects the transaction after its happening.
Chase J. defined four types of ex post facto laws:9

(a) every law that makes an action done before the passing of the law, and which was innocent when done,
criminal; and punishes such action;
(b) every law that aggravates a crime, or makes it greater than it was, when committed;
(c) every law that changes the punishment and inflicts greater punishment, than the law annexed to the crime,
when committed; and
(d) every law that alters the legal rules of evidence, and receives less or different testimony, than required at
the time of the commission of the offence, in order to convict the offender. Chief Justice Marshall observed
in Fletcher v Peck:10
An ex post facto law is one which renders an act punishable in a manner in which it was not punishable when
committed. In Duncan v Missouri,11 the Supreme Court of the United States held: An ex post facto law is one which
imposes a punishment for an act which was not punishable at the time it was committed, or an additional
punishment to that then prescribed; or changes the rules of evidence by which less or different testimony is
sufficient to convict than was then required, or in short, in relation to the offence, or its consequences, alters the
situation of a party to his disadvantage. The prescribing of different modes of procedure, and the abolition of courts
and creation of new ones, leaving untouched all the substantial protection with the existing law surrounds accused
of crime are not considered within the constitutional prohibition.
Sutherland referred to two additional classifications, namely:12

(a) a law which is assuming to regulate civil rights and remedies only, in effect, imposes a penalty on the
deprivation of a right which when done was lawful;
(b) a law which deprives persons accused of crime of some lawful protection to which they have become
entitled, such as, the protection of a former conviction or acquittal, or of the proclamation of amnesty.
Crawford in his Statutory Construction,13 poses the question whether a statute which alters the method of inflicting
the death penalty after the defendant has been convicted and sentenced to death by one method, falls within the
inhibition against ex post facto legislation. According to Crawford, The principle seems to be well established that
such a statute is not within the inhibition, especially where the new method of inflicting the penalty is more humane.
Blackstone14 considers ex post facto laws as those under which after an action indifferent in itself is committed, the
legislature then for the first time declares it to have been a crime, and inflicts a punishment upon the person who
has committed it. The general rule undoubtedly is that where a statute is passed altering the law, it is to be
presumed as intended to apply to a state of facts coming into existence after the Act. It is fundamental and firmly
establishes the rule of interpretation that a statute which deals with matters of substantive law and taxation would
not be construed to have retrospective operation unless such a construction appears very clearly in the terms of the
Act, or arises by necessary implication. Now the use of the expression retrospective operation is at times vague and
misleading. In a broad general sense it may be right to say that a statute has retrospective operation when it
purports to touch facts or events which took place before the enactment came into force. It is sometimes used in a
different sense when vested rights are sought to be affected. It is sometimes loosely used in the context of certain
fictions of law which the law-maker deems it necessary to introduce in existing laws for the purpose of setting
certain matters right or avoiding certain mischief which might be possible but for the change in law; and this is done
by laying down that certain facts or things which did not, in fact, exist shall be deemed to have existed. This last
need not necessarily be called retrospective legislation. It may be more appropriate to describe it as ex post facto
legislation of a curative nature.15 Parliament may make amends to make a doubtful point clear or it may do so for
many other reasons germane to the particular amendment.
In Kalipada v Sree Bank Ltd,16 the respondent sought to argue that under Section 45F of the Banking Companies
Act, 1949 (now the Banking Regulation Act, 1949), a provision that laid down a special period of limitation for
banks, could operate retrospectively in favour of the respondent. The appellant argued that since the bank had
been wound up in 1948, it could not avail of the benefit under Section 45F. The relevant portion of Section 45 read
as follows:in computing the period of limitation prescribed for any suit or application by a Banking Company, the
period of one year immediately preceding the date of the order for winding up of the Banking Company shall be
excluded. The Court held that no restriction or qualification appeared in the language of Section 45F to suggest that
a Banking Company ordered to be wound up before the coming into operation of the Banking Companies Act,
Page 3 of 5
Introduction
1949, but whose winding up had not concluded after coming into operation of the Act, would not get the benefit of
the additional year granted by that section. The Court observed:
Naturally, each section and its language must ultimately determine whether that particular section has any
retrospective operation or was so intended by the Legislature or not. There is no general rule of construction that
because one particular section of a statute is retrospective the whole Statute should be regarded as retrospective
nor is there any general opposite rule that because one section, is not retrospective no other section of that Statute
can be construed as having retrospective operation.
Rule of Questionable Policy
Retrospective laws are, as a rule, of questionable policy, and contrary to general principles that legislation by which
the conduct of mankind is to be regulated ought to deal with future acts, and ought not to change the character of
past transactions carried upon the faith of the then existing law.17 Particular cases will be decided on their
particular facts, though in the light of established general principles. It is a well-known rule of statute drafting that a
statute is to be regarded as always speaking. This rule does not mean that the statute is to be construed as
operative with reference to the past as much as with reference to the present and the future. It only means that, with
reference to any particular case that falls within the scope of the wording of the statute, the statute must be taken to
be speaking with reference thereto and it is not to be regarded as a rule of guidance as to the retrospective or
prospective operation of the statute.18
Sutherland in Statutory Construction says:19
In dealing with the problem of retroactivity, it is extremely difficult to establish definite criteria upon which courts
decisions can be foretold. A statute must not act unreasonably upon the rights of those to whom it applies, but what
is reasonable and what is unreasonable, is difficult to state in advance of actual decisions... the method to be
pursued is not the unerring pursuit of a fixed legal principle to an inevitable conclusion. Rather it is the method of
intelligently balancing and discriminating between reasons for and against.
In Abdus Samad (Mhd) v Kurban Hussain,20 Murtaza Bakhsh, a Taluqdar of Oudh, died on 18 January 1865,
leaving behind his mother, two widows and some cousins. His mothers name was entered in the Collectors books
in March 1865, in substitution for his own, with the consent of the two widows and the cousins. In 1869, the Oudh
Estates Act was passed which regulated succession to the estates of Taluqdars whose names were entered in
certain prescribed lists. After the death of the mother in 1870, the widows names were substituted for heir in the
Collectors books. The heirs of the last surviving widow claimed the estate when the widow died. The claim was
resisted by the heirs of the first wife. The trial court held that the entry of Murtaza Bakhshs name in the lists, after
his demise, was ultra vires and of no effect; that the mother held the estate as an absolute owner; that, after her
death the two widows held as absolute owners in equals shares; that, on the death of the first wife one-half of the
estate descended on the heirs of the first wife, in accordance with ordinary Mohomedan Law and that, on the death
of the second wife her half descended on her heirs by the same law. This decision was affirmed on appeal by the
heirs of the first wife. Their Lordships felt no hesitation in confirming the decision. Lord Lindley observed:
The whole case turns on the entry of Murtaza Bakhshs name in two of the lists ordered to be made by the Act of
1869. Section 10 of the Act compels the court to regard such lists as conclusive evidence that the persons named
therein are Taluqdars or grantees within the meaning of the Act. When the lists referred to are looked at, it will be
found that there are. six lists: see section 8, Murtaza Bakhshs name is in the first and third. The entries, therefore,
by sections 8 and 10 are conclusive evidence: (1) that he is to be considered as having been a Taluqdar within the
meaning of the Act: sections 2, 8 list 1; and (2) that he was a Taluqdar to whom a Sanad had been made declaring
that the succession to the estates comprised sections 2, 8 in it should be regulated by the rule of primogeniture; see
list 3. These enactments are clear and pre-emptory, and would be decisive if they applied to this case. It is not,
however, in accordance with sound principles of interpreting statutes to give them a retrospective effect. The courts
cannot construe sections 8 and 10 so as to deprive the successors of the estates of a person who had died before
those sections came into operation of rights which they acquired on his death. Entries of the names of the
deceased person in the lists mentioned in section 8do not appear to have been contemplated by the Act, but such
entries have no doubt been made and they are practically harmless if the names were already in former lists made
under the Orders in Council, or if the entries do not alter the previously acquired rights of anyone. This was the case
in Achal Ram v Udai Pratab Addiya Dat Singh.21 But no decision has been referred to which supports the
contention that the entry of the name of a person who dies before the Act came into force can divest rights
previously acquired on his death. In this case the death occurred in 1865, and the successors then acquired their
rights under the ordinary Mahomedan Law. The Oudh Estates Act did not come into operation until 1869; and to
Page 4 of 5
Introduction
construe its provisions as altering the succession would be not only unjust, but plainly contrary to the well-settled
principles. It is hardly necessary to point out that nothing is more firmly established in all civilised systems of
jurisprudence than the proposition that the legislature is presumed to enact prospectively and not retrospectively.
The rule is embodied in the well-known maxim nova constitutio futuris formam imponere debet non praeteritis
(every new enactment should affect future and not past times).
Rule not Applicable to Penalties Imposed
It is true that so far as the creation of any substantive offence is concerned a statute is not retrospective.
In Director of Public Prosecutions v Lamb,22 the offences were alleged to have been committed between 3
September 1939 (the day when the Defence (Finance) Regulations 1939, came into force), and 11 May 1940, that
being the date when the matters came to light. The information was laid before the magistrate on 27 August 1940.
At that time, the regulation provided that the fine should not exceed 100 (besides imprisonment, if any). On 11 June
1940, the regulation was amended, thereby enacting; Where any person is convicted of an offence against any of
these Regulations in relation to (certain matters) the maximum fine which may be imposed on him shall be (certain
things, one of such things being), a fine equal to three times the value of the security, currency... The case came up
before the magistrate on 4 September 1940, and he considered that the amended rule did not apply, whereby he
could impose a fine of 1,58,000, imposed a fine of only 100. On appeal, Tucker J, set aside the order and observed:
It is not making an offence of something which previously was not an offence, and it is, of course, dealing with the
future when it says Any person is convicted, and is not referring to any person who has been previously convicted.
However, when I think that it has a retrospective effect is with regard to the penalty which it imposes. If we suppose
that next week the regulation with regard to looting were to be amended by a provision which said, Any person
convicted of looting shall suffer the penalty of death and regulation so and so shall be amended accordingly, I think
that it would be difficult to persuade anybody who was next week convicted of the offence of having looted six
months ago that regulation had not a retrospective effect. I think that it clearly would have retrospective effect qua
punishment, and I think that this regulation has a retrospective effect with regard to the penalty which it imposes.
These observations have, however, to be read subject to the provisions of Article 20 of the Indian Constitution. The
principles that have to be applied for interpretation of statutory provisions are well settled. The first of these is that
statutory provisions creating substantive rights or taking away substantive rights are ordinarily prospective, they are
retrospective only if by express words or by necessary implication, the legislature has made them retrospective;23
and the retrospective operation will be limited only to the extent to which it has been so made by express words, or
necessary implication. The second rule is that the intention of the legislature has always to be gathered from the
words used by it, giving to the words their plain, normal and grammatical meaning. The third rule is that if in any
legislation, the general object of which is to benefit a particular class of persons, any provision is ambiguous so that
it is capable of two meanings, one which would preserve the benefit and another, which would take it away, the
meaning which preserves it should be adopted. The fourth rule is that if strict grammatical interpretation gives rise
to an absurdity or inconsistency, such interpretation should be discarded and an interpretation which gives effect to
the purpose the legislature may reasonably be considered to have had, will be put on the words, if necessary, even
by modification of the language used.24 The fifth rule is that where a statute is not clear as to whether it has
retrospective effect and can be interpreted either way on this point, the court should not give it retrospective
effect.25
1 . Nemi Chand v State of Rajasthan (1977) Raj LW 430.

2 . Ram Parkash v Savitri Devi AIR 1958 Punj 87, p 90; Saharanpur Electric Supply Co Ltd v Commr of Income-tax
(1992) (1) JT 287 (SC).
3 . Cooley, Constitutional Limitations, p 771.
4 . West v Gwynne [1911] 2 Ch 1, p 12, per Lord Wrenbury; South Australia Land Co Ltd v King 30 CLR 523, p 546;
Jamil Ahmad (Mhd) v Suraj Narain (1950) ILR 29 Pat 400; New Singhal Dal Mill v Sheo Prasad AIR 1958 All 404
[LNIND 1957 ALL 239], pp 407-08, per MC Desai J.
5 . Rashid Ahmed (Mhd) v State of Uttar Pradesh AIR 1979 SC 592 [LNIND 1978 SC 393], p 598.
6 . Debi Dutta Moody v Bellan AIR 1959 Cal 567 [LNIND 1958 CAL 244], p 570, per DN Sinha J; Dahiben v Vasanji
Kevalbhai AIR 1995 SC 2268 [LNIND 1995 SC 1391]; following Mohanlal Chunilal Kothari v Tribhovan Haribhai
Page 5 of 5
Introduction
Tamboli AIR 1963 SC 758, [1963] 2 SCR 707 (CB): the amendment made by Bombay Act 33 of 1952 (Bombay
Tenancy and Agricultural Lands Act 67 of 1948) was held to have retrospective operation.
7 . Corpus Juris, volume 59, pp 1158-59.
8 . Gardner & Co v Cove [1928] Ch 955: the term describes Acts which operate on transactions, which have occurred on
rights and obligations which existed before passing of the Act; Sutherland, Statutory Construction, third edn, vol 2, p
117.
9 . Calder v Bull (1798) 3 US 386, 1 L Ed 648.
10 . (1810) 3 L Ed 162.
11 . 152 US 377; Gibson v Mississipi 164 US 565; Medlys case, 134 US 160.
12 . Sutherland, Statutory Construction, third edn, vol 2, p 162, fn 4.
13 . Pages 573-74.
14 . Commentaries, vol 1, p 46.
15 . New Shorock S & M Co Ltd v Raval AIR 1959 Bom 477 [LNIND 1958 BOM 159], p 480.
17 . Phillips v Eyre [1871] LR 6 QB 1, p 123, per Willes J; Raj Jogendra Chandra v Bhawani Charan AIR 1945 Cal 425, p
429.
18 . Radhi Bewa v Bhagwan Sahu (1951) ILR Cut 177; Kothari Roadways v RT Authority, Udaipur (1969) Raj LW 74.
19 . Sutherland, Statutory Construction, thirteenth edn, vol 2, pp 117-18.
20 . 31 IA 30, p 37; Gurcharan Lal v Shiva Narain AIR 1948 Oudh 162.
21 . 11 IA 51.
22 . [1941] 2 All ER 499, pp 502-03.
23 . Associated Cement Co Ltd v State of Bihar (1979) Pat LJR 429.
24 . Mahadeo Lal v Administrator-General, West Bengal AIR 1960 SC 936 [LNIND 1960 SC 128], p 939; Sree Bank Ltd v
Sarkar Dutt Roy AIR 1966 SC 1953 [LNIND 1965 SC 127]; Kunhiraman v Pura, Ineri Sevice Co-op Bank Ltd (1970)
Ker LT 1057, p 1061, per EK Moidu J; Income-tax Officer, Tuticorin v TS Devinatha AIR 1968 SC 623 [LNIND 1967 SC
305]; State of Madhya Pradesh v Poonam Chand 1968 Jab LJ 116, (1967) MP LJ 891.
25 . Govind Das v Income-tax Officer AIR 1977 SC 552 [LNIND 1975 SC 666].
End of Document
Competence to Enact Retrospective Laws
NS Bindra
The legislature of a state is the sovereign authority in the sphere of legislation on state subject, and in the exercise
of that authority it has the competence to enact legislation with retrospective effect.26 Constitutionality of an Act
must be judged on the basis of the constitution as it was on the date the Act was passed, subject to any
retrospective amendment of the constitution.27 It is also open to the legislature to remove the defect pointed out by
the court or to amend the definition or any other provision of the Act in question retrospectively. In this process it
cannot be said that there has been an encroachment by the legislature over the power of the judiciary. A courts
directive must always bind unless the conditions on which it is based are so fundamentally altered that under
altered circumstances such decisions could not have been given. This will include removal of the defect in a statute
pointed out in the judgment in question, as well as alteration or substitution of provisions of the enactment on which
such judgment is based, with retrospective effect.28 Higgins J. observed in Kin v Kidman:29
The British Parliament admittedly has power to make its laws retrospective; and I know of no instance in which a
legislature created by the British Parliament has been held to have overstepped its powers by making legislation
retroactive. There are plenty of passages that can be cited showing the inexpediency, and the injustice, in most
cases of legislating for the past, of interfering with vested rights, and of making acts unlawful which were lawful
when done; but these passages do not raise any doubt as to the power of the legislature to pass retroactive
legislation, if it sees fit. The maxim runs: Nova constitutio futuris formam inponere debet non praeteritis.
DrLushington observed Re Ironside:30
No one denies the competency of the legislature to pass retrospective statutes if they think fit and many times they
have done so.
In ML Bagga v Murhar Rao,31 the Court was considering whether Rule 11 (E)(3)(b) of the Evacuee Interest
(Separation) Rules, 1951, which saved evacuees from eviction for 2 years, would operate retrospectively in favour
of the Petitioner or not. The Court held that the Parliament was endowed with plenary powers of legislation and it
was competent to legislate with prospective or retrospective effect. However, the rule-making authority did not
possess plenary powers to give the subordinate delegated legislation retrospective operation unless and until that
power is expressly conferred by the parent enactment. As the parent enactment i.e. Evacuee Interest (Separation)
Act, 1951, did not confer any such power, the Court held that Rule 11E (3)(b) could not operate retrospectively to
affect pending proceedings. The Court extensively discussed the enactment of retrospective laws, and held:
In so far as the Act or Statute passed by a Legislature is concerned, the rule of construction appears to be that in
order to determine whether an Act is retrospective in its operation, the provision of the Act itself must be adverted to
bearing in mind that a Statute is not to be construed retrospectively unless it is clear that such was the intention of
the Legislature. To ascertain the intention, regard should be had to the general scope and purview of the
enactment, to the remedy sought to be applied, to the former state of the law and to what was in the contemplation
of the Legislature. Unless there be something in the language, context or object of an Act showing a contrary
intention the duty and practice of Courts of justice is to presume that the Legislature enacts prospectively and not
retrospectively. On the other hand, if there are words in the enactment which either expressly or by necessary
intendment (e.g. from the object of the statute) imply that the statute is to be given retrospective operation even in
respect of substantive right or pending action, the Courts have no other alternative than to give such operation to
Page 2 of 2
the Statute even though the consequences may appear to be unjust or hard. The principle that parties are governed
by the law in force on the date when a suit is instituted or a proceeding commenced and any subsequent
amendment or alteration cannot affect pending proceedings, must always be read subject to the corollary that a
Legislature could always expressly provide that pending proceeding be affected by an amendment of the law.
In Khyerbari Tea Co v State of Assam,32 the Court was considering the vires of the Assam Taxation (on Goods
carried by Road or on Inland Waterways) Act, 1961, that inter alia imposed tax on the transport of tea, which was
impugned as violating the freedom of trade under Article 301 . This freedom could be curbed by making law under
Article 304 (b) of the Constitution. It was argued by the appellant that restrictions passed under Article 304 (b) could
not operate retrospectively. The Court repelled this contention, and held:
Without more, when a legislature has the power to pass a law it can pass a law having a retrospective operation.
This, I do not think, was disputed. What was said was that the terms of Article 304 indicated that it was not intended
that a retrospective law would be passed under it. It was argued that the law contemplated there was one which put
restrictions on the freedom of the flow of trade and, therefore, if the trade had once flown it could not be restricted
and so a retrospective effect could not be given to a law passed under the Article. I am unable to appreciate this
argument. If the flow of trade in future can be restricted, then I do not see why a trade which has flown in the past
cannot be restricted retrospectively. It is not disputed that a restriction which can be imposed under clause (6) of
Article 19 can be imposed retrospectively. There is no reason why the same position should not obtain in regard to
the restrictions contemplated by Article 304 (b).
26 . Tamboli Bhogalal v Mohanlal Chunnilal AIR 1957 Bom 130 [LNIND 1956 BOM 168]; Associated Cement Co Ltd v
State of Bihar (1979) Pat LJR 429.
27 . Mahendralal Jain v State of Uttar Pradesh 1963 Supp (1) SCT 912; same applies to subordinate legislation: State of
Kerala v Annam AIR 1969 Ker 38, p 54, per Madhavan Nair J.
28 . State of Tamil Nadu v Arooran Sugars Ltd (1997) 1 SCC 326.
29 . 20 CLR 424, p 452; Jada Ram v Faziullah Khan AIR 1934 Pesh 30.
30 . (1862) 31 LJP M & A 131.
31 . AIR 1956 Hyd 35.
32 . AIR 1964 SC 925 [LNIND 1963 SC 295].
End of Document
Applicability of the Rule to Substantive Rights
NS Bindra
When the law is altered during the pendency of an action, the rights of the parties are decided according to law, as
it existed when the action was begun, unless the new statute shows a clear intention to vary such rights. The
question of prospectivity or retrospectivity might arise in pending suits, that is, suits which were pending on the date
when the amendment Act came into force, to contend that the amending provision would never be applicable even
in future to a sitting tenant would not be a tenable contention.33 Where rights and procedure are dealt with
together, the intention of the legislature may well be that old rights are to be determined by the old procedure and
that, only the new rights under the substituted section are to be dealt with by the new procedure. If the procedural
alteration is closely and inextricably linked with the changes simultaneously introduced in another part of the statute
dealing with substantive rights and liabilities, it is not possible to give retrospective operation to the amendment
regarding procedure unless the legislature has indicated such an intention either by express words or by necessary
implication.34 Cockburn CJ. observed in Bradford Union v Wilts35 that the principle, which was adopted long ago,
and has been long acted upon, is that if the language of the statute is prima facie prospective the rate must be
prospective and not retrospective, so that the expenses shall fall on the rate-payers who are rate-payers at the
moment of the expenses being incurred. Consequently, he added, When even the legislature thinks it expedient to
authorise the making of retrospective rates, it fixes the period as to which the rate may be retrospectively made.
In Ramchander v Ramappa,36 the Court was considering whether Notification 1355F included the community of
Lingayats in the Schedule of Protected Tribes in the Hyderabad Land Alienation Restraint Act, giving the
amendment a retrospective effect. In the context of a transaction of land between a Lingayat and a non-Lingayat,
the Court held that at the time when the sale transaction took place, the plaintiff had acquired a right in the sense
that the appellant was not a member of a protected tribe and there was no bar to the sale being enforced and this
right of his could not be taken away by the amendment which came into force subsequently.
In Jagannath v Board of Revenue,37 the Court was concerned with the interpretation of theUttar Pradesh Land
Tenures (Legal Proceedings) (Removal of Difficulties) Order, 1952. It was contended that the effect of the Order
was that a suit, appeal or other legal proceeding under Section 180 of the Uttar Pradesh Tenancy Act, 1939,
pending on 30 June 1952, would be decided with reference to any right which may have accrued to either party in
the land, the subject matter of the suit, appeal or other proceeding under the Uttar Pradesh Zamindari Abolition and
Land Reforms Act, 1950. The Court repelled this contention, and held that the right to file a suit was a vested right,
and hence, the right of a landlord to terminate the tenancy of his tenant must be determined according to the state
of affairs existing on the date he filed the suit and the plaintiffs vested right which cannot be taken away except by
legislation which is either expressly or by necessary implication made retrospective.38
In Rajah of Pittapur v Venkata Subba Rao,39 the question was whether Sections 210 and 211 and Article 8 of Part
A of the Schedule to Madras Estates Land Act, 1908, should be given a retrospective effect. In that case the Act
came into force two days after it received the Viceroys assent, and it left no opportunity to the plaintiff for the
exercise of his vested right of suit. Hence, Chief Justice Wallis held that the effect of the amendment would be, if
construed retrospectively, to destroy the plaintiffs right of suit which was in existence when the Act came into force.
Kumaraswami Sastriar J. agreed with the view taken by Wallis CJ. and in his judgment, he stressed the point that
there was not sufficient time between the assent given to the Act by the Governor-General and its coming into force
so that the public had not due notice of the provisions of the new statute which was to come into force. Hence,
retrospective effect of the aforementioned provisions was resisted.
Page 2 of 2
Jurisdiction
When a statute deprives a person of his right to sue or affects the power or jurisdiction of a court in enforcing the
law as it stands, its retrospective character must be clearly expressed. The rule that a statute relating to procedure
operates retrospectively unless otherwise provided in the statute is not applicable when the statute in question
affects the jurisdiction of a court. Provisions relating to jurisdiction are more than matters of procedure. They touch
a right in existence at the passing of the statute.40
33 . Atar Singh v Third Addl District Judge1982 All Rent Cas 624.
34 . Assainar v Commissioner of Income-tax, Kerala [1971] 81 ITR 423, p 428, per Bala Krishna Eradi J; KS Paripoornam
v State of Kerala AIR 1995 SC 1012.
35 . [1868] LR QB 604, p 616.
36 . AIR 1954 Hyd 158; Ghanshyam Das v Sales-tax Officer AIR 1964 MP 161 [LNIND 1963 MP 102]; Meenakshi Amma
v Madhavan Nair (1968) Ker LT 744.
37 . AIR 1955 All 432 [LNIND 1955 ALL 49]; Bikram Singh v Sunehra (1954) ILR All 434 overruled.
38 . Popat Lal Gokul Chand v Ram Chandra Narayan Rao AIR 1950 Nag 3; National Real Estate and Finance Co v
Hassan [1939] 2 KB 61: right of forfeiture; Jiban Krishna v Abdul Qader (1933) ILR 60 Cal 1037, AIR 1933 Cal 435.
39 . (1916) ILR 39 Mad 645.
40 . Yankappa v Shavakka AIR 1960 Mys 265, p 266; Colonial Sugar Refining Co v Irving [1905] AC 369; State of Uttar
Pradesh v Atiqa Begum AIR 1941 FC 16.
End of Document
Rights Accrued before Operation of Statute
NS Bindra
A statute will not affect rights which had accrued before a statute came into force unless there are express words in
the statute affecting such rights or where a retrospective effect to the statute is inevitable by necessary intendment
or implication.41 Statutes should be interpreted, if possible, so as to respect vested rights. It is not to be presumed
that interference with existing rights is intended by the legislature, and if a statute be ambiguous the court should
lean to the interpretation which would support existing rights. In the absence of anything to show that it is to have
retrospective operation, it cannot be so construed as to have the effect of altering the law applicable to a claim in
litigation at the time when the Act is passed.42 In Ram Lal v State of Uttar Pradesh,43 the Court held that since
judicial determination had finalised the rights of the petitioner, and the amending Act incorporating provisions for
redetermination of ceiling on landholdings, did not affect that earlier decision of the court declaring petitioners
holding as ancestral sir and khudkast it was held that a re-opening of the earlier proceedings was not called for. The
court observed:
A change in law can thus affect the decision of a court only to the extent that the decision becomes contrary to law.
If the change in law does not touch the question decided by the competent court the decision is not affected and
would continue to be binding between the parties.
In Ningappa v Abaskhan,44 a suit filed by the plaintiff was pending when the Bombay Tenancy and Agricultural
Lands Act, 1948, came into force in December 1948, though the decree was passed subsequently. The Court held
that as the rights given to the plaintiff by the decree had accrued to him at the date of the suit, he must be entitled to
execute the decree as if the Act had not been passed.
41 . Commr of Income-tax, West Bengal v PM Bagchi& Co [1951] 20 ITR 33; Ouseph Chacko v Inthuru Thi
Shankaran(1953) ILR Tr&Coch 396; State v Pyarey Mohan Lal Srivastava 1953 ALJ 339.
42 . Leeds and County Bank v Walker [1883] 11 QBD 84, p 91; Krishna Chandra v Sushila AIR 1951 Ori 105, p 115;
Provincial Government of Madras v Basappa AIR 1964 SC 1873 [LNIND 1963 SC 261]; Chandra Singh v Surjilal AIR
1951 SC 199 [LNIND 1951 SC 12].
43 . (1978) All LJ 1197.
44 . AIR 1956 Bom 345 [LNIND 1955 BOM 229]; Manibai v Raj Kumar Harpal Deo AIR 1967 Bom 92 [LNIND 1965 BOM
39], (1966) 68 Bom LR 180, (1966) ILR Bom 659; Saraswati Bai v Bikram Chand Premsukhdas AIR 1967 Bom 158
[LNIND 1966 BOM 22]: case under Bombay Tenancy and Agricultural Act 1958; Collector v Habibhulla Din AIR 1967
J&K 44.
End of Document
Documents (80)
1. Rights Accrued before Operation of Statute

Narrowed by:
2. Operation of Rule by Express Words or by Necessary Implication

Narrowed by:
3. No Greater Retrospectivity than Necessary

Narrowed by:
4. Canons of Construction
Narrowed by:
5. Where two Interpretations Possible

Narrowed by:
6. Effect must be given to Language Irrespective of Consequences

Narrowed by:
7. How Far Prior State of Law Relevant

Narrowed by:
8. Alteration of Law During Pendency of Action

Narrowed by:
9. Application of Rules in Different Areas of Law

Narrowed by:
10. Retrospective Operation of Rules

Narrowed by:
11. Conclusion
Narrowed by:
12. Introduction
Narrowed by:
13. Actus Non Facit Reum Nisi Mens Sit Rea8

Narrowed by:
14. (a) Subordinate Courts

Narrowed by:
15. (b) Expression of its Own Opinion by Subordinate Court

Narrowed by:
16. (c) Revenue Courts
Narrowed by:
17. (d) High Court Benches

Narrowed by:
18. (e) Limits to Rule

Narrowed by:
19. Conclusion
Narrowed by:
20. Introduction
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21. Types of External Aids
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22. Reports of Commissions and Committees

Narrowed by:
23. Proceedings in Parliaments

Narrowed by:
24. Notes on Clauses

Narrowed by:
25. Bills
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26. Surrounding Circumstances

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27. Policy58
Narrowed by:
28. Executive Construction

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29. Usage
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30. International Law82

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31. Dictionaries
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32. Textbooks and Encyclopedias

Narrowed by:
33. Analogy
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34. History of Legislation

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35. Conclusion
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36. Introduction
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37. Objects of Repealing Acts
Narrowed by:
38. Express Repeal

Narrowed by:
39. Implied Repeal

Narrowed by:
40. Onus in Case of Repeal by Implication

Narrowed by:
41. Test of Implied Repeal

Narrowed by:
42. Effect of Repeal on Transactions Completed
Narrowed by:
43. Effect of Repeal on Vested Rights and Procedure

Narrowed by:
44. Repeal of Repealing Enactment

Narrowed by:
45. Effect of Repeal67

Narrowed by:
46. Repeal with a Saving Clause

Narrowed by:
47. Repeal of State Act by Central Act

Narrowed by:
48. Conclusion
Narrowed by:
49. Chapter 13
Narrowed by:
50. Introduction
Narrowed by:
51. Applicability of Rules of Statutory Construction

Narrowed by:
52. Original Intent and Dynamic Interpretation

Narrowed by:
53. The Constituent Assembly Debates as an Aid to Constitutional Interpretation 22

Narrowed by:
54. Preamble as a Source of Interpretation

Narrowed by:
55. Interpretation of Part III

Narrowed by:
56. Analogous Provisions in other Constitutions and Foreign Precedents

Narrowed by:
57. Interpretation of Legislative Powers

Narrowed by:
58. Doctrine of Pith and Substance
Narrowed by:
59. Interpretation of Fiscal Powers under the Constitution

Narrowed by:
60. Doctrine of Implied Powers 121

Narrowed by:
61. Doctrine of Implied Prohibition

Narrowed by:
62. Doctrine of Repugnancy

Narrowed by:
63. Doctrine of Colourable Legislation
Narrowed by:
64. Supposed Spirit of Constitution not to Restrict Powers

Narrowed by:
65. Writ Jurisdiction under Article 226

Narrowed by:
66. Repeal of Older Constitution by New Constitution

Narrowed by:
67. Doctrine of Eclipse

Narrowed by:
68. Effect of Unconstitutionality of an Act

Narrowed by:
69. Conclusion
Narrowed by:
70. Introduction
Narrowed by:
71. Special Provisions Followed by General Act

Narrowed by:
72. General Act Followed by Special Act

Narrowed by:
73. Presumption
Narrowed by:
74. Ordinarily no Repeal by Implication

Narrowed by:
75. Repeal by Necessary Implication 25

Narrowed by:
76. Conflict between Special and General Statutes

Narrowed by:
77. Special and General Provisions in Same Statute

Narrowed by:
78. Conflict to be Reconciled

Narrowed by:
79. Strict Construction
Narrowed by:
80. Conclusion
Narrowed by:
NS Bindra
A statute will not affect rights which had accrued before a statute came into force unless there are express words in
the statute affecting such rights or where a retrospective effect to the statute is inevitable by necessary intendment
or implication.41 Statutes should be interpreted, if possible, so as to respect vested rights. It is not to be presumed
that interference with existing rights is intended by the legislature, and if a statute be ambiguous the court should
lean to the interpretation which would support existing rights. In the absence of anything to show that it is to have
litigation at the time when the Act is passed.42 In Ram Lal v State of Uttar Pradesh,43 the Court held that since
judicial determination had finalised the rights of the petitioner, and the amending Act incorporating provisions for
redetermination of ceiling on landholdings, did not affect that earlier decision of the court declaring petitioners
holding as ancestral sir and khudkast it was held that a re-opening of the earlier proceedings was not called for. The
court observed:
A change in law can thus affect the decision of a court only to the extent that the decision becomes contrary to law.
If the change in law does not touch the question decided by the competent court the decision is not affected and
would continue to be binding between the parties.
In Ningappa v Abaskhan,44 a suit filed by the plaintiff was pending when the Bombay Tenancy and Agricultural
Lands Act, 1948, came into force in December 1948, though the decree was passed subsequently. The Court held
that as the rights given to the plaintiff by the decree had accrued to him at the date of the suit, he must be entitled to
execute the decree as if the Act had not been passed.
41 . Commr of Income-tax, West Bengal v PM Bagchi& Co [1951] 20 ITR 33; Ouseph Chacko v Inthuru Thi
Shankaran(1953) ILR Tr&Coch 396; State v Pyarey Mohan Lal Srivastava 1953 ALJ 339.
42 . Leeds and County Bank v Walker [1883] 11 QBD 84, p 91; Krishna Chandra v Sushila AIR 1951 Ori 105, p 115;
Provincial Government of Madras v Basappa AIR 1964 SC 1873 [LNIND 1963 SC 261]; Chandra Singh v Surjilal AIR
1951 SC 199 [LNIND 1951 SC 12].
43 . (1978) All LJ 1197.
44 . AIR 1956 Bom 345 [LNIND 1955 BOM 229]; Manibai v Raj Kumar Harpal Deo AIR 1967 Bom 92 [LNIND 1965 BOM
39], (1966) 68 Bom LR 180, (1966) ILR Bom 659; Saraswati Bai v Bikram Chand Premsukhdas AIR 1967 Bom 158
[LNIND 1966 BOM 22]: case under Bombay Tenancy and Agricultural Act 1958; Collector v Habibhulla Din AIR 1967
J&K 44.
End of Document
Operation of Rule by Express Words or by Necessary Implication
NS Bindra
It has been held that a statute should not be given retrospective operation unless its words are so clear, strong and
imperative that no other meaning can be annexed to them, or unless the intention of the legislature could not be
otherwise satisfied particularly where retrospective operation would alter the pre-existing situation of parties or
affect, or interfere with their antecedent rights. The rule that laws are not to be construed as applying to cases
which arose before their passage is applicable when to disregard it would impose an unexpected liability that if
known might have caused those concerned to avoid it.45 Statutes have retrospective effect when the declared
intention is clearly and unequivocally manifest from the language employed in the particular law or in the context of
connected provisions. It is always a question whether the legislature has sufficiently expressed itself. One must look
at the general scope and purview of the Act and the remedy the legislature intends to apply in the former state of
the law and then determine what the legislature intended to do. More retrospectivity is not to be given than what can
be gathered from expressed or clearly implied intention of the legislature.46
Acts which have the effect of impairing contracts and effect vesting rights must be strictly construed; and in
interpreting such laws the courts must lean against giving retrospective effect to their provisions; unless there is
something in the language of an Act showing a contrary intention. The duty and the practice of the court of justice is
to presume that the Act is prospective and not retrospective.47
Necessary Implication
It is not necessary that it should be expressly stated that the provisions of a statute are retrospective in their
operation if the intention can be gathered by necessary implication.48 The principle is, that if the object of an Act,
and that object must be gathered from the words of the enactment, itself requires, that the Act, should apply to
pending proceedings, it will be so applied, unless there is a saving clause in the Act itself to the effect that it would
not apply to pending proceedings.49 It is no doubt a rule of construction that an Act will not be so interpreted as to
be retrospective unless it declares in express terms, or it is to be gathered from the whole of the Act, that the
legislature intended it to be retrospective. As observed by a Full Bench of the Andhra Pradesh High Court:50
The question whether the statute or any provision in it has retrospective operation has to be determined with
reference to the dominant intention of the legislature to be gathered from the language used, the object and the
scheme of the Act, the nature of the rights affected and the circumstances under which the statute came into being.
In Gulab Chand v Gudilal,51 the Court considered Section 2 (b) and Section 25 of the Madhya Bharat High Court
Act, 1949. Under Section 2, the jurisdiction of the new High Court extended to the whole of the United State of
Gwalior, Indore and Malwa (Madhya Bharat). Section 25 provided for the first time a right of appeal under certain
conditions against the decisions of a Division Bench in civil and criminal cases. The Court had to decide whether
this right to appeal would be available to an appellant against whom the Division Bench had decided a matter prior
to the coming into force of the Act. The Court held that combined effect of the two Sections was to state that a
decision given by a Division Bench of High Court in proceedings mentioned in Section 2 (b) was, subject to certain
conditions, appealable to a Full Bench. As the decision under appeal was given by a Division Bench before High
Court Act came into force, decisions of a Division Bench made before High Court Act came into force were not
appealable under Section 25 of Act. In arriving at this decision, the Court held:
Page 2 of 3
I think in construing such an Act as we have here it is legitimate to refer to the previous state of law for the purpose
of ascertaining the intention of the Legislature, when it is contended that the legislature intended to give
retrospective effect to the Act so as to interfere with existing rights. For clearly the question whether the legislature
contemplated by change in the law to disturb the existing rights acquired under the previous law can only be
determined after considering the former state of law...when the question for consideration is whether a statute is
retrospective so as to affect existing rights, it is impossible to determine the question without considering the prior
state of the law...It is a well established rule of construction, that no statute, unless it be a statute dealing with the
procedural law, shall be construed to have retrospective operation unless such a construction appears very clearly
in the terms of the Act or arises by necessary and distinct implication. Another rule of construction is that a
retrospective operation is not to be given to a statute BO as to impair an existing right or obligation unless that
effect cannot be avoided without doing violence to the language of the enactment A third rule of construction is that
a statute is not to be construed to have a greater retrospective operation than its language renders
necessary...Now, it is conceded on all sides that the initial presumption is that an Act is not retrospective; that it
deals with future and not with past events, and strong and distinct words are necessary to alter the vested rights of
either litigant as they stood at the commencement of the action. In the absence of clear words to that effect, a
statute will not be considered as taking away a vested right acquired before it was passed...if an Act is not clearly
retrospective, if there is any doubt upon the point, the intention of the legislature must be taken to have been that it
should not be retrospective.
In Government of Maharashtra v Deokars Distillery,52 the issue was whether the state was empowered to charge
the cost of supervision from liquor licencees, for government staff posted on their premises under Section 58A of
the Bombay Prohibition Act, 1949.53 The State Government was empowered under Section 58A of the Prohibition
Act, to permit the manufacture etc. of any intoxicant under the supervision of excise staff and the cost of such staff
is to be paid to the State Government by the manufacturer. The commissioner was empowered by the State
Government, to issue circulars for levy and recovery of supervision charges based on the pay scales and other
allowances of the government employees fixed by the State Government. The Commissioner issued demand
notices to the respondents to pay the cost of supervision which accrued on account of revision of pay-scales with
retrospective effect. The question was whether the Commissioner was entitled to retrospectively recover arrears of
the supervision charges. The court ruled that the widest meaning should be given to the words in a statute, unless
there is any limitation in that provision itself. It held:
The words the cost of such staff shall be paid to the State Government used in Section 58A of the Prohibition Act, in
our view, would include in their meaning all the costs incurred by the State Government for the purpose of
disbursing pay and other allowances to the government employees posted for supervision...there is no limitation of
any kind in Section 58A of the Prohibition Act to the effect that the costs are to be recovered only in advance, and
that too only such costs as could be worked out on the date of demand or to the effect that the burden of additional
amounts on account of revision of pay scales with retrospective effect should not be recovered from the liquor
licensee. In our view, there exists full power unless Section 58A of the Prohibition Act itself to levy and recover all
costs of supervision and, therefore, no limitation can be read into the power to recover all costs present, future and
past which are or were actually incurred by the State Government in view of payments made or to be made to its
employees posted for excise supervision, in spite of provisions of Sub-rule 12 of Rule 1754 of the Rules of 1966
and Sub-rule 12 of Rule 655 of the Rules of 1973. The object of Section 58A of the Prohibition Act and the intention
of the legislature could not be anything other than that the entire cost incurred by the government on account of pay
scales paid to the government employees posted for supervision should be paid by the licensee and that this cost
should not be met from the government exchequer.
45 . Ram Parkash v Savitri Devi AIR 1958 Punj 67, p 91.
46 . Sukhram Singh v Harbheji AIR 1969 SC 1114 [LNIND 1969 SC 81].
47 . Lalchand Nathuram v Nandu AIR 1948 Nag 139; Bhagwant Rao v Damodhar (1938) ILR Nag 91, AIR 1938 Nag 112;
Uttar Pradesh v Atiqa Begum1940 PCR 110, p 164.
48 . Dila Ram v Atma Ram AIR 1949 All 225, p 227; Raja Ram v Madho Prasad AIR 1954 All 592 [LNIND 1954 ALL 48].
Page 3 of 3
49 . Mukherjee v Ram Ratan Koer 63 IA 47, AIR 1936 PC 49; Shib Nath v Porter AIR 1943 Cal 377, p 391 (SC); KE v
Sibnath [1945] FCR 149 (PC).
50 . G Narasa Reddy v Collector, Adilabad Dist AIR 1982 AP 1 [LNIND 1981 AP 155].
51 . AIR 1951 MB 1.
52 . (2003) 5 SCC 669 [LNIND 2003 SC 309].
53 . Enacted by the State Government under the power vested in it by the proviso to Article 309 of the Constitution to fix
the pay and other allowances of its employees.
54 . Sub-rule (12) of Rule 17 of the Rules of 1966:

All transactions pertaining to the receipt, transport, storage of spirit and manufacture, bottling and issues of potable liquor
shall be under excise supervision. The Director may appoint such staff at the manufactory for excise supervision as is
considered necessary and the cost of such staff shall be paid to the State Government by the licensee annually in
advance.
55 . Sub-rule (12) of Rule 6 of the Rules of 1973:

All transactions pertaining to the receipt, transport and storage of spirit and country liquor and manufacture, bottling and
issues of country liquor shall be under excise supervision. The Commissioner shall according to the direction made
under Section 58A of the Act by the State Government station such staff at the Manufactory for excise supervision as is
considered necessary and the cost of such staff shall be paid to the State Government by the manufactory licensee
quarterly in advance.
End of Document
No Greater Retrospectivity than Necessary
NS Bindra
It is a fundamental rule of English law that no statute shall be construed so as to have a retrospective operation
unless its language is such as plainly to require such a construction; and the same rule involves another and a
subordinate rule to the effect that a statute is not to be construed so as to have a greater retrospective operation
than its language renders necessary.56 The principle as explained by the Supreme Courts is that a statute which is
not declaratory of a pre-existing law nor a matter relating to procedure, but affects vested rights cannot be given a
greater retrospective effect that its language renders necessary, and even in construing a section which is to a
certain extent retrospective, the line is reached at which the words of the section cease to be plain.57 Even in
construing an Act which is to a certain extent retrospective, and in construing a section, which is to a certain extent
retrospective, we ought nevertheless to bear in mind that maxim as applicable whenever we reach the line at which
the words of section cease to be plain. That is a necessary and a logical corollary of the general proposition that
you ought not to give a larger retrospective power to a section even in an act which is to some extent intended to be
retrospective, then you can plainly see what the legislature meant.58 Even where it is retrospective in operation,
court should confine its operation only to the extent the language renders it necessary. There is a presumption
against the retrospective operation of a statute and it should not be construed to have a greater retrospective
operation than its language renders necessary.59 Undoubtedly, an Act may in its operation be retrospective, and
yet the extent of its retrospective character need not extend so far as to affect pending suits. Courts have
undoubtedly leaned very strongly against applying a new Act to a pending action, when the language of the statute
does not compel them to do so. It is a well-recognised rule that statutes should, as far as possible, be so
interpreted, as not to affect vested rights adversely, particularly when they are being litigated.60
In Union of India v Kedarnath,61 the Court was considering a notice served on one of the Secretaries of the Central
Government in accordance with Section 80 of the Code of Civil Procedure, 1908. The provision was amended
subsequently, and a requirement of service on the General Manager of the concerned department was included.
The Court held that the notice could not be considered invalid or insufficient because it did not comply with the
amendment that was notified subsequently.
56 . Lauri v Renad [1892] 3 Ch 402, pp 420-21, per Lindley LJ; Tabarak Khan v Province of Bihar AIR 1950 Pat 228;
Kanak Kanti Roy v Krupa Nath Gaur (1931) ILR 58 Cal 817, AIR 1931 Cal 321;Naraynaswami v Inspector of Police AIR
1949 Mad 307; Daulat Singh v State (Footnote No. Contd.)
AIR 1950 MB 112; Nautilus Steam Shipping Co ex p Gibbs & Co [1936] 1 Ch 17 , p 26; Mossv Donshoe 20 CLR 615, p
621; RS Howard & Sons Ltd v Brinton 21 CLR 366, p 371; SS Gadgil v Lal& Co AIR 1965 SC 171 [LNIND 1964 SC
168], p 177; Addl Income-tax Officer, Visakhapatnam v Uppala Peda Venkataramanayya (1966) 2 Andh LT 92;
Shakuntala v Bhagwan Das AIR 1967 Del 12 [LNIND 1967 DEL 3], p 14, per SK Kapur J; Provas Chandra v Visyaraju
AIR 1962 Ori 149 [LNIND 1961 ORI 22], p 151, per Narasimham CJ; Kama Sharma v Pinki Sharma (1992) 2 Pat LJR
722; State of Rajasthan v Kami Singh AIR 1986 Raj 84, (1985) Raj LW 71; Ram Dayal v Ganga Prasad (1982) ALJ
255; G Narsa Reddy v Collector Adilabad Dist AIR 1982 AP 1 [LNIND 1981 AP 155].
Page 2 of 2
57 . Ahmedabad M&C Printing Co v Mehta AIR 1963 SC 1436 [LNIND 1962 SC 498], per SK Das Kapur JJ, Income-tax
Officer v SA Habibullah AIR 1962 SC 918 [LNIND 1962 SC 25]; Syndicate Bank v Rallis (India) Ltd AIR 1979 Del 40
[LNIND 1978 DEL 8].
58 . Reid v Reid [1866] 31 Ch D 402; Lauri v Renad [1892] 3 Ch 402; ] ogendra Chandra v Bhawani Charan AIR 1945 Cal
425, p 429; Kirpa Singh v Ajaipal Singh (1929) ILR 10 Lah 165, p 176; Main v Stark 15 App Cas 388, [1980] AC 384
; Reynolds v AG Nova Scotia [1896] AC 240; Katikara Chintamani Dora v Guntreddi Annamanaidu (1974) 1 SCC
567 [LNIND 1973 SC 388].
59 . Shyam Sunder & Ors v Ram Kumar & Anor (2001) 8 SCC 24 [LNIND 2001 SC 1541].
60 . Uttar Pradesh v Atiqa Begum [1950] FCR 110, p 164, per Sulaiman J; Krishna Chandra v Sushila AIR 1951 Ori 105, p
116.
61 . AIR 1954 Assam 147.
End of Document
Canons of Construction
NS Bindra
In Jagdamba Prasad v Anandi Nath,62 Manoharlal J. observed:
It is necessary to keep in mind the following well-known canons of construction which are laid down by highest
authorities, in order to decide whether an Act is retrospective or prospective:
(i) There is no presumption that the statute which takes away any existing right is intended to apply to a state
of facts which came into existence before its commencement.
(ii) When the effects of the statute would be to make a transfer valid which was previously invalid, to make an
instrument, which had no effect at all and from which the party had liberty to depart as long as he pleased,
binding the prima facie construction of the Act is that it is not to be retrospective.
(iii) If it is a necessary implication from the language employed that the legislature intended a particular section
to have a retrospective operation, the courts will give it such an operation because it is obviously
competent for the legislature if it pleases in its wisdom to make the provisions of an Act retrospective.
(iv) But if, on the other hand, the language employed by the legislature is ambiguous or not clear and explicit,
the court must not give a construction to the new Act which would take away vested rights, in other words,
should treat the Act as prospective.
In Banwari Gope v Emperor,63 Fazal Ali J. observed:
The question as to how far a statute which repeals or alters the old law can be given retrospective operation has
been discussed in numerous cases and I will state here very briefly some of the principles which may be taken to
have been well settled in those cases. These are
(i) upon the presumption that the legislature does not intend to enact what is unjust, every statute which takes
away or impairs a vested right acquired under the existing law or creates a new obligation or imposes a
new duty or attaches a new disability in respect of transactions64 or considerations already passed must
be presumed to be intended not to have retrospective operation;
(ii) if there are words in the enactment which either expressly state or necessarily imply that the statute is to
be given retrospective operation, then the Act should have retrospective operation even though the
consequences may appear unjust and hard;
(iii) a statute is not to be construed to have a greater retrospective operation than its language renders
necessary; and
(iv) as no person has a vested right in any course of procedure, alterations in procedure are to be
retrospective, unless there is some good reason against it.
Lord Hatherly observed in Pardo v Bingham:65
We must look to the general scope and purview of the statute, and at the remedy sought to be applied, and
consider what was the former state of the law, and what it was that the legislature contemplated.
The real test when deciding whether a particular provision of law is to be given retrospective effect or not, is not to
consider merely whether the law is a law of procedure or substantive law but also whether the law in question
affects or impairs existing rights including rights of action which are substantive rights. If a law destroyed an existing
Page 2 of 2
right or even placed any restrictions on it, no retrospective effect would be given to it unless the statute expressly
enacted to that effect.66
In Shakti Tubes v State of Bihar,67 the Court had to consider whether Sections 4 and 5, Interest on Delayed
Payment to Small Scale Industries Act, 1993, would apply retrospectively. It was argued that since it was a welfare
legislation, it could be applied retrospectively. The Court rejected this contention and held as follows:
There is no dispute with regard to the fact that the Act in question is a welfare legislation which was enacted to
protect the interest of the suppliers especially suppliers of the nature of a small scale industry. But, at the same
time, the intention and the purpose of the Act cannot be lost sight of and the Act in question cannot be given a
retrospective effect so long as such an intention is not clearly made out and derived from the Act itself...An Act
should always be regarded as prospective in nature unless the legislature has clearly intended the provisions of the
said Act to be made applicable with retrospective effect. 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 a retrospective operation
i.e. nova constitutio futuris formam imponere debet non praeteritis (a new law ought to regulate what is to follow, not
the past).
62 . (1938) ILR 17 Pat 460, AIR 1938 Pat 337, p 350; State of Bombay v Vishnu Ram Chandra AIR 1961 SC 307 [LNIND
1960 SC 239].
63 . AIR 1943 Pat 18, p 20, (1943) ILR 22 Pat 175.
64 . Nani Gopal Mittra v State of Bihar AIR 1970 SC 1636 [LNIND 1968 SC 309].
65 . LR 4 Ch 375, p 740.
66 . Saleem (Mhd) v Umaji AIR 1955 Hyd 113, p 122, per Srinivasachari J: s 9, Hyderabad Money-Lenders Acts as
amendment in 1355 F has no retrospective effect.
67 . (2009) 7 SCC 673 [LNIND 2009 SC 1410].
End of Document
Where two Interpretations Possible
NS Bindra
Where two Interpretations Possible
If an enactment is expressed in language, which is fairly capable of either interpretation, it ought to be construed as
prospective only.68 It is well-known principle in the construction of statutes that where the words admit of two
constructions you are not to construe them so as to produce a retrospective effect, or impose disabilities not
existing at the passing of the Act.69 Where there is a doubt as to the meaning of a word which is grammatically
capable of being interpreted either as interfering with an existing right or not, the word will not be construed as
having a retrospective effect so as to take away an existing right.70 Even admittedly retrospective legislation is
limited by the clearness of its retrospectivity; and, also, rights that have passed from the original contractual or
relational character into rights measured by judicial determination, are prima facie, outside retrospection, which
usually applies to rights not yet so determined.71
68 . Daulat Singh v State AIR 1950 MB 112-13; Henry Hunter v Basanti Devi (1938) ILR13 Luck 317, AIR 1937 Oudh 241-
42; Ganpati v Maruti AIR 1962 Bom 75 [LNIND 1960 BOM 22]-76; Gorden v Lucas [1878] 3 AC 582 , p 601;
Kempiah v Girigamma AIR 1966 Mys189; Govind Das v Income-tax Officer (1976) 1 SCC 906 [LNIND 1975 SC 666].
69 . Re Pullborough Parish School Board Election [1894] 1 QB 725.
70 . Cowan & Sons v Lockyer 1 CLR 460, pp 468-69.
71 . Fedrated Assn of Australia v Broken Hill Proprietary Co Ltd 16 LRC 245, p 277.
End of Document
Effect must be given to Language Irrespective of Consequences
NS Bindra
Effect must be given to Language Irrespective of Consequences
If the meaning of words used indicates an intention that the Act is to have retrospective operation, then, no matter,
what the consequences this operation must be given to the provisions.72 No doubt whenever the intention is clear
that the Act shall have retrospective operation, it must unquestionably be so construed even if the consequences
may appear unjust and hard.73 If the language used by the legislature is so clear that the effect of retrospectivity in
relation to the operations of the provisions of an enactment, cannot be avoided, without doing violence to the
language of the enactment and the language is not such as to lend support to the construction of their prospectivity
only, then the court must give effect to the language and hold the Act to be retrospective.74 If there are words in
the enactment which either expressly or by necessary intendment (eg from the object of the statute) imply that the
statute is to be given retrospective operation even in respect of substantive rights or pending actions, the courts
have no other alternative than to give such operation to the statutes even though the consequences may appear to
be unjust or hard.75 In determining whether any provision of an Act was intended to be retrospective or not, the
consequences of holding that it is not retrospective must be looked at.76
72 . Rashid Bibi v Tufail Muhammad AIR 1941 Lah 291-92: it does not follow that a meaning is to be given to the words of
the statute, which according to ordinary usage they could not carry, so as to give to the provisions retrospective
operation.
73 . Gopal Vakta v Gopal Munshi AIR 1941 Cal 432; Kundanlal v Fakir Baksh AIR 1938 Oudh 127-28; Hindusingh v
Mangal AIR 1923 Nag 227; Sant Kuer v Ganesh AIR 1949 Pat 137; Modibai v Nagraj 1982 Jab LJ 218.
74 . Siba Prasad v Nurabati AIR 1949 Ori37.
75 . ML Bagga v C Murher Rao AIR 1956 Hyd 35; Habibuddin (Mhd) v Government of Hyderabad (1953) ILR Hyd 147,
AIR 1953 Hyd 157.
76 . Ex p Todd [1887] 19 QBD 186, p 195.
End of Document
How Far Prior State of Law Relevant
NS Bindra
How Far Prior State of Law Relevant
The prior state of the law is of some relevance in determining the question of retrospective operation. This question
has been dealt with in greater detail in the chapter on extrinsic aids.77
77 . See chapter VIII of this part infra.
End of Document
Alteration of Law During Pendency of Action
NS Bindra
Sufficient interval of time between the date of the enactment of a law and the date on which it is to come into force,
would, no doubt, enable litigants whose cases have been decided before the enactment or immediately after it, to
have resort to the old law before the new law comes into force, but litigants whose cases happen to be pending on
the date the new law comes into force and decisions therein are given only afterwards would go even without such
an opportunity if the postponing clause is understood to carry a retrospective intendment. To extend the application
of it to the domain of vested rights would be to annihilate the right altogether.78 The ordinary rule is that the rights
of litigants are to be governed by the law in force when the action had commenced. The corollary from this is that a
change in the substantive law, as opposed to adjective law would not affect pending actions, unless the legislature
had indicated otherwise either by express enactment or by necessary implication.79
In general, when the law is altered during the pendency of an action, the rights of the parties are decided according
to the law as it existed when the action had begun, unless the new statute shows a clear intention to vary such
rights.80 Where rights and procedure are dealt with together, the intention of the legislature may well be that the old
rights are to be determined by the old procedure and that only the new rights under the substituted section are to be
dealt with by the new procedure.81 An enactment may not be wholly prospective or absolutely retrospective. It may
be retrospective only in the sense that it applies to pending proceedings and affects vested rights to the extent that
a particular provision therein, warrants and gives it that effect.82 The provision taking away the jurisdiction of the
civil courts cannot be considered to be a mere matter of procedure which should not be held to operate
retrospectively. If the suit had been instituted at a time when the civil courts were fully competent to entertain the
suit, later amendment cannot without express words, or necessary intendment divest the court of the jurisdiction
which it exercised at the time of entertaining the suit so as to undo the entire proceedings held by the civil court up
to the date of the amendment. Such a construction would be contrary to all canons of statutory interpretation and
would also tend to defeat the cause of justice and fairplay.83
Whenever it is decided by the legislature to take away or impair vested rights, the decision is taken in public
interest. Hardships to individuals are caused, but their interests are subordinated to the public will under the
necessity or compulsion of circumstances. The general rule, therefore, has been that the intention of the legislature
to give retrospective effect to its enactments, where vested rights are taken away or impaired, must appear in
express terms or by necessary implication. This necessary implication is a recognised mode of expression. It
creates a similar compulsion for the courts as the use of express terms. But the rule of interpretation which assists
the courts in determining whether a law can be retrospectively applied to pending suits, is stated differently from the
general rule. In such cases the rule is that pending cases should be decided in accordance with the law which was
in force when the suit was instituted. Changes in law during the pendency of the suit, unless purely procedural, do
not affect its course or tenor. Even where it is retrospective, it does not necessarily affect pending actions.
Under Section 6 of the General Clauses Act, 1897, repeal of an enactment does not prima facie affect pending
actions, unless the legislature has shown a contrary intention either in express words or by necessary
implication.84 Since application of a new law to a pending suit is an extreme form, which retrospective application
of measures of the legislature may take, a clearer statement of intention has generally been insisted on. Even here,
the intention may be made manifest in express terms or by necessary implication. Where the intention of the
legislature is made clear in some known way, the courts would be bound to give effect to it by applying it to pending
suits. The freedom of the legislature to express its mind in any form cannot be restricted or reduced. But if extreme
Page 2 of 2
retrospective effect is sought to be given by the application of a law to pending suits whatever the stage they have
reached and vested rights are intended to be varied, courts may expect a clear, adequate and unequivocal
expression of intention which should not be easy to mistake. For, if there is ambiguity or equivocation, retrospective
effect could not be given to the law. In the ultimate analysis, the matter is one of construction, and if upon a
consideration of the enactment it is apparent that it was the intention of the legislature that the provision of the Act
should apply to pending suits, they should be so applied.85 Thus courts bear in mind two well-established
principles when ascertaining the effects of enactments on pending suits or appeals. Firstly, while provisions of a
statute dealing wholly with matters of procedure may properly have, unless that construction be textually
inadmissible, retrospective effect attributed to them, provisions which touch a right in existence at the passing of the
statute are not applied retrospectively in the absence of express enactment or necessary intendment. Secondly, a
right of appeal being a substantive right the institution of a suit carries with it the implication that all successive
appeals available under the law then in force would be preserved to the parties to the suit throughout the rest of the
career of the suit.86 There are two exceptions to the application of the above-mentioned principle. Firstly, when by
competent enactment such right of appeal is taken away expressly or impliedly by retrospective effect, and
secondly, when the courts to which appeal lay at the commencement of the suit stands abolished.87
SR Das CJ. observed:
The golden rule of construction is that, in the absence of anything in the enactment to show that it is to have
litigation at the time when the Act was passed.88
78 . Chinna Kunjukunju v Neelakantan AIR 1958 Ker 251 [LNIND 1957 KER 232], p 256; dissenting from Re
Parthasarathi Naidu AIR 1958 Mad 94 [LNIND 1957 MAD 182]; Velayudam Thankayyan v Rev GWT Trowell AIR 1966
Mad 32 [LNIND 1964 MAD 387].
79 . Hitchcock v Way (1837) 6 LJ KB 215 (NS); Re Joseph Suche Ltd [1876] 1 Ch D 48; Sylhet Loan and Banking Co v
Ahmad Majtobah AIR 1946 Cal 337; Kulwant Singh Gurdip Singh v Registrar of Co-op Societies (1963) Cr LJ 321.
80 . Maxwell, Interpretation of Statutes, twelfth edn, p 220.
81 . Maxwell, Interpretation of Statutes, tenth edn, p 219; Ramini Ranjan Bose v Corpn of Calcutta AIR 1955 Cal 410
[LNIND 1954 CAL 133]; Assainar v Commr of Income-tax, Kerala [1971] 81 ITR 423, p 428, per Balakrishna Eradi J.
82 . Gurupada Haldar v Subodh Gopal Bose (1958) Cal LJ 293.
83 . Gram Panachayat v Kesho Narain AIR 1964 Punj 462, p 464, per Dua J; Khatumal Ghanshamdas v Abdul Qadir AIR
1961 MP 295 [LNIND 1961 MP 120], p 297, per Dixit CJ: deprivation of right to sue, or affecting power or jurisdiction of
court.
84 . Ayub Ali Khan v Hassena Bano [1974] 14 ACC 20.
85 . Harsukh v Mashulal AIR 1957 Assam 22, p 28; Indramoni Nath v Lokenath AIR 1957 Assam 83.
86 . Jose Da Costa v Ba Cora Sadashiv Sinai Narcornin AIR 1975 SC 1843 [LNIND 1976 SC 162].
87 . Ibid.
88 . Garikapati v Subbaiah Chowdhary AIR 1957 SC 540 [LNIND 1957 SC 10], p 553; Shafeeq v Mohammadi Begum
(1964) 1 Andh LT 42, (1963) 2 Andh WR 73; Pirbux v Babu Lal AIR 1987 MP 18 [LNIND 1985 MP 184], (1986) Cur Civ
LJ 36 (MP), (1963) 2 Cur CC 249, (1986) MP LJ 720.
End of Document
Application of Rules in Different Areas of Law
NS Bindra
No Vested Right in Procedure
The general rule that no statute should be construed so as to have a retrospective operation unless its language is
such as to require such a construction has no application to validating Acts or ordinances which, by their very
nature, are intended to act upon past transactions and are, therefore, necessarily retrospective.89 The fact of a
statute being remedial or designed to protect the public interest is a matter to which great weight is to be attached
and a different principle prevails where a statute is one that introduces a new remedy.90 In such matters one must
have regard to the general character of the Act in question, and when construing an Act introduced for the purpose
of applying an equitable doctrine to certain transactions, ex hypothisi to be lacking in equity, one should not assume
that the legislature intended that the Act should not have retrospective effect, but wished to preserve rights acquired
in such transaction.91 If the legislature has thought fit to deprive the civil court of its jurisdiction to entertain suit of a
particular nature, a plaintiff cannot compel the civil court to hear his suit merely because his cause of action had
accrued before the new Act depriving the civil court of its jurisdiction was passed. The choice of forum is a matter of
procedure and not a substantive right, and in most cases a new Act will have retrospective effect so far as the
choice of forum is concerned. A right of action is something different from the choice of forum.92 The law is not in
doubt that amended law relating to procedure operates retrospectively, but it is a very misunderstood branch of law.
It is necessary, therefore, to emphasise that it only means that pending cases although instituted under the old Act
but still pending are governed by the new procedure under the amended law, but it does not mean that part of the
old procedure already applied and concluded before the amendment came into force becomes bad or can be re-
opened under the new procedure after the amendment. This doctrine of retrospective operation does not mean that
whatever procedure was correctly adopted and concluded under the old law will be re-opened again for the purpose
of applying the new law of procedure. That will be not merely making it retrospective but going a step further to
make ex post facto the procedure, legal when applied and concluded, illegal by subsequent law. No court will permit
such a consequence unless, of course, the statute expressly or by compelling implication says so.93 According to
Maxwell,94 a new procedure would be presumably inapplicable, where its application would prejudice rights
established under the old, or would involve a breach of faith between the parties.
As was observed by Lord Blackburn in Gardner v Lucas:95
It is perfectly settled that if legislature intended to frame a new procedure that, instead of proceeding in this form or
that, you should proceed in another and a different way, clearly then bygone transactions are to be sued for and
enforced according to the new form of procedure. Alterations in the form of procedure are always retrospective,
unless there is some good reason or other why they should not be.
It cannot be said, however, that such interval can be explained only on the ground that the provision must have
been intended to be retrospective. The mere existence, therefore, of a postponing clause in an enactment affecting
vested rights cannot always be construed as an indication by the legislature for its retrospective operation. Such
statutory intention must be gathered from the terms of the statute itself. If there be no express words, there must at
least be a clear indication from the subject matter of the wording of the statute. And this rule holds good for statutes
whether original or amending.96
Curative and Validating Acts
Curative statutes are by their very nature intended to operate upon and affect past transactions and are therefore,
wholly retrospective. Curative and validating statutes operate on conditions already existing and can have no
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prospective operation.97 There is also abundant authority for holding that if an Act is in its nature a declaratory Act,
the argument that it must not be construed so as to take away previous rights is not applicable.98 But it has been
held that the use of the words it is declared in a statute does not necessarily import that the statute is merely
declaratory of existing law and, therefore, retrospective; and that, the use of the expression it is declared to
introduce new rules of law is not incorrect and is far from uncommon.99 Where the legislature can make a valid law,
it may provide not only for the prospective operation of the material provisions of the said law, but it can also
provide for the retrospective operation of the said provisions. Similarly, there is no doubt that the legislative power in
question includes the subsidiary or the auxiliary power to validate laws which have been found to be invalid. If a law
passed by a legislature is struck down by the courts as being invalid for one infirmity or another, it would be
competent to the appropriate legislature to cure the said infirmity and pass a validating law so as to make the
provisions of the said earlier law effecting from the date it was passed.100 All validating Acts lead to two distinct
classesthose in which validation is necessary, and those in which it is not. The legislature is always competent to
validate procedural defects without in any way losing its jurisdiction by reason of the existence of the other
class.101 The argument that mere validation of an action invalidated by a judgment amounts, in effect, to exercising
judicial power cannot be accepted because it proceeds upon an unwarranted assumption that validation simpliciter
is not within the ambit of the power of legislating on a particular subject. In the first place, the legislature can be
regarded as exercising judicial power only when, without amending the law, it directs, contrary to the law in force,
that pending cases shall be disposed of in a particular manner or that cases decided in one way shall be deemed to
have been decided in another way.102 For validating past acts, it is not always necessary to amend the law with
retrospective effect with a view to authorising the doing of those acts at the time when they were actually done
without such authority. It is well-settled that diverse methods are available to the legislature for effecting validation
of past acts and any one of them is as efficient and sufficient to achieve the object as any other. One of them is
simple validation effected by employing an appropriate enacting clause without amending the law with retrospective
effect. Another is the making of a retrospective amendment and this is usually adopted when it is desired to change
the law. A third may well be a combination of two or more methods.103
In Young v Adams,104 Lord Watson, delivering the judgment of the judicial committee, pointed out that the cases
do not lay down an invariable rule and observed as follows:
It does not seem to me probable that the legislature should intend to extinguish by means of retrospective
enactment, rights and interest which might have already vested in a very limited class of persons, consisting so far
as appears of one individual, namely, the respondent. In such cases their Lordships are of opinion that the rule laid
down by Erie CJ, in Midland Ry Co v Py105 ought to apply. They think that in a case like the present the learned CJ
was right in saying that a retrospective operation ought not to be given to the statute unless the intention of the
legislature that it should be so construed is expressed in plain and unambiguous language, because it manifestly
shocks ones sense of justice that an act legal at the time of doing it should be made unlawful by some new
enactment. It will serve no useful purpose to refer to the other cases cited before us in this connection because
here we are able, as we shall presently proceed to show, to distinguish upon the words of the Act itself, the
language of the Act in that respect being plain and unambiguous, which of its provisions are retrospective and
which prospective, and we have not to rely upon any presumption as to intent relating to its operation to be inferred
from the character of the Act being declaratory or otherwise.
In District Mining Officer v Tata Iron and Steel Co,106 the Court had to consider whether the Cess and other Taxes
on Minerals (Validation) Act, 1992, and decide whether the Act had validated the collection of taxes on minerals
already realised under the invalid law, or whether it further granted a right to levy tax and realise the same. The
Court held that on a plain reading of the Act, it was clear that it purported to validate certain State laws and actions
relating to cesses and other taxes on minerals fictionally must be held to have been enacted by the Parliament. The
Court observed that through the Validation Act, Parliament did not re-enact the 11 Acts mentioned in the Schedule,
but merely provided the legislative competence for those provisions in those acts which related to cesses or taxes
on minerals. Hence, the Court ruled that the scope of the Act was limited to validating the collection of taxes, and
did not grant any rights beyond that.
Right of Appeal a Substantive Right
As soon as a suit is brought, the right to prefer an appeal or appeals provided by the law, current at the time,
becomes vested in the parties and such right cannot be taken away except by a new law and except by the express
words or the necessary intendment of such law.107 The right which would accrue to the plaintiff would be the right
governing the lis as its commencement and such rights would be available to both parties for the entire course of
the litigation regarded as an intrinsic unity, and remain unaffected by any change in the law brought about by a
supervening enactment. This is, however, subject to an exception, namely, that any such right might conceivably be
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affected either by a retrospective provision in enactment itself, or by any law having that consequence by necessary
intendment.108 An appeal or revision pending in a forum at the time of the statute affecting the jurisdiction of that
forum comes into force and is not affected by the statute unless the statute clearly expresses an intention to
operate retrospectively.109 But it may be noted that in order that the right of appeal may subsist, it is necessary that
the conditions under which the right can be exercised should also subsist. It may be that when the judicial system
and hierarchy of the courts remain the same, the right of an eventual appeal or appeals accrued at the date of a
suit, remains unaffected by subsequent changes in law, unless modified expressly or by necessary implication, but
when the whole political structure of a country, including the judicial system itself, changes and a new court of final
appeal is set up under a new constitution with a new jurisdiction created for and assigned to it, there can no longer
be any question of appealing to such new jurisdiction under the old right except as it may be expressly provided for.
Hughes CJ. In Patterson v State of Alabama observed:110
We have frequently held that in the exercise of our appellate jurisdiction we have power not only to correct error in
the judgment under review but to make such disposition of the case as justice requires. And in determining what
justice does require, the court is bound to consider any change, either in fact or in law, which has supervened since
the judgment was entered.
In Lachmeshwar Prasad v Keshwarlal,111 certain appellants before the Federal Court sought to claim the benefit of
Section 7 of the Bihar Money-Lenders (Regulation of Transactions) Act, 1939. It was contended that the section
had been enacted after the High Court had given its decision in the case, due to which the Federal Court had no
power to apply the new provision in deciding the appeal. The Court held that the Federal Court, as a court of
appeal, was entitled to take into consideration legislative changes which had supervened since the decision under
appeal was given and that as the Act had in terms been made retrospective, the appellants could be given the
benefit of Section 7 of the Act.
But if the right of appeal is given for the first time after a final order has been passed, such a provision in the new
enactment, if applied retrospectively, would deprive of their existing finality of orders which, when the statute came
into force, were final and are therefore provisions which touch existing rights. It is legally presumed that any change
in law adversely affecting the right of appeal after the institution of a suit is presumed to be not retrospective.112
Confirmative Statute
A confirmative statute giving new rights does not by itself and of necessity destroy a previously existing right (such
as to invoke the jurisdiction of the civil court). No doubt the legislature can make its intention apparent in a particular
statute that the two rights should not exist together. But until that intention is established either by express provision
or by compelling implication, the right of the litigant that existed before a statute is enacted will continue to be
available to him.113
Statute of Limitation
The fixation of periods of limitation must always be to some extent arbitrary, and may frequently result in hardship.
But in construing such provisions equitable considerations are out of place; and the strict grammatical meaning of
the words is the only safe guide.114 As a rule statute of limitation being procedural laws must be given a
retrospective effect in the sense that they must be applied to all suits filed after they came into force. Although a law
of limitation is primarily a law relating to procedure and as such, comes into effect right from the moment it has been
enacted and governs all proceedings instituted thereafter and thus has retrospective operation, when a subsequent
law curtails the period of limitation previously allowed, and such law comes into force at once, it should not be
allowed to have retrospective effect, which it otherwise have, so as to destroy pre-existing rights of suit, because
the giving of such retrospective effect amounts to not merely a change in procedure but a forfeiture of the very right
to which the procedure relates.115
In Pappathi Ammal v Sivagannam116, the Court was concerned with the application of the Indian Limitation Act in
Travancore-Cochin. Prior to the application of this Act, suits for restoration were governed by Order IX, Rule 9 of
the Code of Civil Procedure, 1908. The question before the Court was whether the suit could be dismissed for
limitation under the Limitation Act for only to shorten the period of limitation for applying for restoration of a suit
dismissed for default. No person can be said to have a vested right to bring an action or to prefer an appeal, or to
make an application within a particular time and as such it is Order IX, Rule 9 of the CPC which was in force in the
state when the restoration was filed by the plaintiff and not the corresponding provision in Travancore-Cochin which
was in force when the suit was instituted, that would apply.
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In Belgaum District School Board v Mahommad Mulla,117 the District School Board of Belgaum had employed
teachers and who were being paid on a certain scale. Pursuant to a certain Resolution passed by the Government,
the Board came to the conclusion that they had been paid more than they were entitled to the Board directed that
the respondents should refund the excess payments made, and orders were passed for deducting the excess
amount from their pay by monthly installments. The teachers filed suits in 1939 against the District School Board to
protest against this recovery, two years after the order was passed. The Bombay Primary Education Act, 1923, after
being amended in 1938, laid down a limitation period of 6 months for filing suits against the Board. The respondents
claimed that the short period of limitation would not apply to them, as the cause of action i.e. the Resolution had
occurred in 1937. The Court rejected the contention of the respondents, and held that the period of limitation would
apply retrospectively to the cause of action. In this context, the Court observed:
It is true that there are cases in the books where a law of limitation destroys a cause of action which has accrued to
a party and does not merely curtail the period of limitation within which he must enforce that cause of action, and
the authorities have laid down that where a party is deprived of his right of action or his cause of action is destroyed
by a statute of limitation, then the Courts would hesitate before giving such a statute a retrospective effect
(Considering these authorities, it is clear that as a rule Statutes of limitation being procedural laws must be given a
retrospective effect in the sense that they must be applied to all suits filed after they came into force. This general
rule has got to be read with one important qualification, and that is that if the Statute of limitation, if given a
retrospective effect, destroys a cause of action which was vested in a party or makes it impossible for that party for
the exercise of his vested right of action, then the Courts would not give retrospective effect to the Statute of
limitation. The reason for this qualification is that it would inflict such hardship and such injustice on parties that the
Courts would hesitate to attribute to the legislature an intention to do something which was obviously wrong.
Rules of Evidence
If alteration is made in a rule of evidence, the alterations shall be ordinarily deemed to be retrospective.118 The law
of evidence is a law of mere procedure and does not affect substantive rights. Alterations in the forms of procedure
are always retrospective unless there is some good reason or other why they should not be.119
Court Fee
The law of court-fee is procedural law and, where there is change in the law as to court fee between the date of the
suit and the date on which an appeal arising from that suit is filed, the law in force at the later date would govern the
court fee payable on the appeal.120 The Madras High Court has, however, held that a notification enhancing court
fees cannot be said to be in the nature of a procedural law. The right of appeal vested in the appellant at the time
he instituted the suit and it cannot be curtailed or restricted by the unexpected heavy burden thrown on the
appellant by subsequent enhancement of court fees.121
The right to pay a fixed court fee without reference to any computation of the claim on an arbitrary basis is a right
vested in the litigant under the Court Fees Act. If the amendment thereto requires the claim to be computed on a
certain arbitrary basis, it prescribes a new rule for computation under the Court Fees Act as so amended. It
changes the classification of the item and shifts it from the schedule of fixed fees to the schedule ofad valorem fees.
It is not a mere matter of enhancing the existing rate of fees but it involves a change in the basis of the imposition.
The change in the law introduced by the new Act relates to computation of the claim because the fee payable is
made dependent on the computation. Such a change which introduces a new method of computation where none
existed before is as much a change relating to computation as when an existing rule of computation is replaced by
another. A change of such a nature in law brought about by the new Act is not made retrospective under the new
Act.122
Statute Imposing New Penalties and Liabilities
A statute imposing a new penalty or a new liability will not be construed retrospectively if such effects can fairly be
avoided by interpretation. But if after the offence is committed, and before he is found guilty and convicted, the
penalty imposed in respect of the offence is enhanced, the higher penalty could be imposed.123
Tax Legislation
Legislature may by specific enactment, retrospectively impose a tax. Rules made under statutes may, if so
expressed, validly be made to operate with retrospective effect.124 By retrospective tax legislation is meant a tax
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statute which affects a period of time prior to the date of enactment of the Act. It may be noted that there is no
limitation upon the power of the legislature to give retrospective effect to a tax statute, but retrospective effect can
only be given when the language or the intention of the legislature is clear and unambiguous. In India a tax statute
would not be challengeable on the ground of denial of due process nor on the ground that it amounts to taking of
private property arbitrarily.125
However, it must be noted that in giving retrospective operation to a fixed statute the rule of strict construction
should be applied, and no such construction should be given unless there is a clear provision to that effect or unless
the effect is necessarily implied from the language.126 Validation of tax which has been declared to be illegal may
be done only if the grounds of illegality or invalidity are capable of being removed and are in fact, removed.
Sometimes this is done by providing for jurisdiction where had not been properly invested before. Sometimes this is
achieved by re-enacting retrospectively a valid and legal taxing provision and then by fiction making the tax already
collected to stand under the re-enacted law. The legislature can give its own meaning and interpretation of the law
under which the tax was collected and by legislative fiat make the new meaning binding upon the courts.127
In Jawaharmal v State of Rajasthan,128 the Court was considering the Rajasthan Passengers and Goods Taxation
Act, 1959, which was enacted following the procedure under Article 304 of the Constitution. An amendment was
passed in 1961, which sought to increase the rates of tax retrospectively. This retrospective enhancement of duty
was upheld by the Court. In dismissing the appeal, the Court observed:
It is well-recognized that the power to legislate includes the power to legislate retrospectively as well as
retrospectively, and in that behalf, tax legislation is no different from any other legislation. If the Legislature decides
to levy a tax, it may levy such tax either retrospectively or even retrospectively. When retrospective legislation is
passed imposing a tax, it may, in conceivable cases, become necessary to consider whether such retrospective
taxation is reasonable or not. But apart from this theoretical aspect of the matter, the power to tax can be
competently exercised by the legislature either prospectively or retrospectively...
In Government of India v Indian Tobacco Association,129 the Supreme Court was required to pronounce upon the
retrospective effect of an exemption notification in relation to the Duty Entitlement Pass Book Scheme. Under this
scheme export out of certain storage terminals were exempt to a particular level in relation to export duty. Guntur
was not one of the terminals in the list. This was in April 1997. In November 1997, Guntur was included within the
scheme. The question that arose in the case was in relation to the period between April and November. The
Association contended that the exemption must apply for this period also.
The second notification was worded in these terms:

(a) for the words Tuticorin and Vishakhapatnam, the words Tuticorin, Vishakapatnam and Kakinada shall be
substituted; and
(b) for the words Ludhiana and Hyderabad, the words Ludhiana, Hyderabad, Nagpur, Agra, Faridabad, Jaipur,
Guntur and Varanasi shall be substituted.
The court said that by reason of the aforementioned amendment no substantive right has been taken away nor has
any penal consequence been imposed. Only an obvious mistake was sought to be removed thereby. In a case of
this nature where the effect of a beneficent statute was sought to be extended it need not be given retrospective
effect by express words but the intent and object of the legislature in relation thereto can be culled out from the
background facts. The respondents were not ineligible from obtaining the benefit. Once they are held to be eligible
for obtaining the benefit, the amended notification being an exemption notification should receive a beneficent
construction and the period from April to November should be also included.
Remedial Statutes
Remedial statutes constitute an exception to the general rule against retrospective laws. Legislative Acts remedial
in their nature are frequently construed so as to act retrospectively and amendments to existing laws to strengthen
legislative effort to correct abuses are to be so applied and construed as to suppress the mischief and advance the
remedy. Such remedial statutes may be of retrospective nature when they do not impair contracts or disturb vested
rights.130 A remedial act is not necessarily retrospective, it may be either enlarging or restricting, and it takes effect
prospectively, unless it has retrospective effect by express terms or necessarily intendment.131 If it is necessary to
give a remedial statute a retrospective operation in order to accomplish its object, then it will be so applied, although
there may be express words in the Act giving it such an effect, unless to do so would impair some vested right or
violate some constitutional guarantee. The term remedial means the opposite of criminal or penal. It has been often
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employed to describe acts which pertain to the remedy of course and form of procedure as distinguished from those
which affect substantive rights.132
Many modern statutes are of a dual nature, that is, they are penal when regarded in one aspect and remedial when
considered in another light. It may be that some of the provisions may be remedial and others, affecting substantive
rights. Some of the decisions limit the concept of remedial laws to statutes intended to remedy a mischief, promote
public justice, correct innocent mistakes, cure irregularities, or give effect to the acts or contracts of individuals fairly
done and made.133 Though changes of procedure, for instance, of the form of remedies, constitute an exception to
the general rule that statutes are to be construed as prospective only, that exception does not reach a case where
before the statute there was no remedy whatever. The destruction of every remedy destroys the cause of action. By
parity of reasoning to grant a remedy where previously there was none of any kind is equivalent in substance to the
creation of a cause of action.134 According to the Supreme Court it is well-settled that the normal rule of
construction is that a provision in a statute is prospective but not retrospective, but however, in the case of statutes
which are merely declaratory or which relates to only matters of procedure, or of evidence, it may have
retrospective effect if there are indications to that effect or the manifest purpose compels one to construe the Act as
such.135
Repealing Acts
An unqualified repeal operates to destroy inchoate rights, as a release of imperfect obligations and as a remission
of penalties and forfeitures dependent upon the destroyed statute.136 The injustice of the retrospective operation of
repealing statutes has led to the insertion in such Acts of provisions, known as saving clauses, which preserve
existing rights or causes of action, or pending proceedings from the effect of the repeal. It may be noted that
Section 6 of the General Clauses Act, 1897, has changed the common law doctrine as to the effect of repeals by
laying down statutory presumptions. But where a particular repealing Act contains its own saving clause, a general
saving statute will not be held to apply.137 This is also the case where the effect of the application of the general
statute would be to defeat the purpose of the repealing Act.138 In the case of amendments which take the form of
re-enactments, it is the practice of the legislature to state in the amendatory Act that the original law is amended to
read as follows, and thereupon to set out the original Act, or section as amended. Those clauses or provisions of
the old law or section which are repeated in the amendment are not to be considered as repealed and again re-
enacted, but to have been the law all along; and the new parts, or the changed portions, are not to be taken to have
been the law at any time prior to the passage of the amended Act.139 The effect of the rule which considers the
provisions of the original Act which are re-enacted as a continuation of the original law is that, rights and liabilities
accrued under such provisions are presumed.
But instead of re-enacting, the legislature may enact a fresh law. When repeal is followed by fresh legislation on the
same subject, the line of inquiry is not whether the new Act keeps alive old rights and liabilities, but whether it
manifests an intention to destroy them.140 Where a repeal of provisions of an enactment is followed by fresh
legislation by an amending act, such legislation is prospective in operation and does not affect substantive or
vested rights of the parties unless made retrospective either expressly or by necessary intendment.141 The rule
which directs that an original law and an amendment to it should be construed as one law passed at the same time
is applied only for the purpose of ascertaining the meaning of the particular doubtful statute. Such consideration
does not have the effect, of making the amendatory Act retrospective to the time when the original law was
passed.142
89 . Ahamad Khan v Crown 49 PLR 265.

90 . Kaniz Abid v Anrudh Singh 198 IC 780 (Oudh).
91 . Rustomji v Bai Moti (1940) ILR Bom 50, AIR 1940 Bom 90.
92 . Mangat Ram v Motor Accident Claims Tribunal 1970 ALJ 1409, p 1412, 1971 ACJ 85, p 87, per CD Parekh J: s 110F;
Motor Vehicles Act 1939; Usman Yusuf Kamani v Foreign Exchange Regulation Appellate Board, New Delhi (1980)
Mah LJ 316; Municipal Board, Bareily v Bharat Oil Co AIR 1990 SC 548 [LNIND 1989 SC 677].
93 . Memon Abdul Karim v Deputy Custodain-General AIR 1964 SC 1256 [LNIND 1964 SC 43]; Anant Gopal Sheorey v
State of Bombay AIR 1958 SC 915 [LNIND 1958 SC 80]; Ajit Kumar v State AIR 1961 Cal 560 [LNIND 1961 CAL 80],
pp 566-67; Indraj Singh v Savitri Kunwar AIR 1966 All 234 [LNIND 1965 ALL 35], (1965) All LJ 651: where it was held
that where a party obtained a decree in a proceeding validly instituted, no change in the procedure affecting the trial will
vitiate the decree obtained before the change.
Page 7 of 8
94 . Maxwell, Interpretation of Statutes, tenth edn, pp 227-28.

95 . [1878] 3 AC 582 , p 603; Murli Dhar v Firm Bashesharlal (1938) ILR Lah 264, AIR 1938 Lah 126.
96 . Ramanathan Chettiar v Lakshman Chettiar (1963) 1 Mad LJ 46.
97 . Ram Prakash v Savitri Devi AIR 1958 Punj 87, p 91; Amalgamated Coalfields Ltd v State of Madhya Pradesh AIR
1967 MP 56 [LNIND 1966 MP 70]: where the case law has been discussed; Ramji Virji v Kadarbhai AIR 1973 Guj 110,
p 113, per Mehta J: applicable whenever question in dispute arises in court.
98 . AG v Theobold [1890] 24 QBD 557; AG v Hertford [1849] 154 ER 1014.
99 . Harding v Queensland Stamp Commissioner [1898] AC 769.
100 . Rai Ram Ramkrishna v State of Bihar (1964) 1 SCT 891, pp 908-09, per Gajendragadkar J.
101 . State of Mysore v Achiah Chetty [1969] 3 SCR 55 [LNIND 1968 SC 380], pp 63-64, per Hidayatullah CJ.
102 . Krishi Upaj Vyavasai Mandal v State of Madhya Pradesh AIR 1965 MP 6, p 8.
103 . Amalgamated Coalfields v State of Madhya Pradesh AIR 1967 MP 56 [LNIND 1966 MP 70], p 66; regarding first
method; Uttar Pradesh v Atiqa Begum 1940 FCR 110; Ram Krishna v State of Bihar [1964] 1 SCR 897 [LNIND 1963
SC 33]; Jadao Bahuji Municipal Committee, Khandwa [1962] 1 SCR 633 [LNIND 1961 SC 139]; JK Jute Mills Co Ltd v
State of Uttar Pradesh [1962] 1 SCR 1 [LNIND 1961 SC 52]; Sunderaramier v State of Andhra Pradesh [1958] SCR
1422 [LNIND 1958 SC 20]: the Validating Act, however, did not fulfill the required purpose; nor did it by the amendment
dispense with the requirement which came in the way to make the notification effective, p 77; Manglaram v State of
Rajasthan AIR 1970 Raj 32 [LNIND 1969 RAJ 101], p 35, per BP Beri J.
104 . [1898] AC 469: it may be true that the enactments are declaratory in forms but it does not necessarily follow that they
are therefore, retrospective in their operation, and were meant to apply to acts which had been completed or to
interests which had vested before they became law; the context of the statute and the terms of the clauses in question
should be examined before even statutes which are declaratory in form are held to be retrospective: Pannirelvam v
Veeriah Vandayar AIR 1931 Mad 83 [LNIND 1930 MAD 252], p 92, (1931) ILR 54 Mad 627; enactments which are
declaratory in form are not necessarily retrospective in their operation: Nepra v Sajer Pramanik (1928) ILR 55 Cal 67,
AIR 1927 Cal 763.
105 . (1861) 30 LJ PC 314, 10 CBNS 179, p 191.
106 . (2001) 7 SCC 358 [LNIND 2001 SC 1542].
107 . HK Dada (India) Ltd v State of Madhya Pradesh AIR 1953 SC 221 [LNIND 1953 SC 20]; Prabirendra Mohan v
Berhampore Bank Ltd AIR 1954 Cal 289, p 292; New Singhal Dal Mills v Sheo Prasad AIR 1958 All 404 [LNIND 1957
ALL 239], pp 407-08, per MC Desai J; Lal Chand Aggarwal v Keshao Rao AIR 1958 MP 197; Vallemal v Periaswami
AIR 1959 Mad 510 [LNIND 1959 MAD 22], p 513, per Ram Chandra Iyer J; Sonya Dagdu v Manhu Dagdu (1980) Mah
LJ 17 [LNIND 1979 BOM 77], AIR 1980 Bom 62 [LNIND 1979 BOM 77].
108 . Velayudam Thankayyan v Rev GWT Trowell AIR 1966 Mad 32 [LNIND 1964 MAD 387].
109 . Kandaswami Mudaliar v Sheikh Ahmad Peer Mahommad Mustafa 90 LW 12.
110 . (1934) 294 US 600, 607; Minnesota v National Tea Co (1940) 309 SC 551, p555; New Brunswick Ry Co v British and
French Trust Corpn [1939] AC 1, pp 32-33.
111 . [1940] FCR 84.
112 . Garikapti v Subbiah Choudhary AIR 1957 SC 540 [LNIND 1957 SC 10]; State of Bombay v SG Films Exchange AIR
1960 SC 980 [LNIND 1960 SC 136]; Kasibi v Mahada AIR 1965 SC 703 [LNIND 1964 SC 363]; Ravi Shanker Joshi v
Ramjibai Maganlal (1966) Guj LR 807; Jha (Mhd) v Receiver, Kedla-Jharkhand Rewta & Dhosi Collieries AIR 1992 Pat
107; Jha (Mhd) v Receiver, Kedla-Jharkhand Rewta & Dhosi Collieries AIR 1992 Pat 107, (1991) 2 Bih LJR 1038,
(1991) 2 Pat LJR 81 (HC).
113 . Arun Kumar Sinha v Union of India AIR 1964 Pat 338, 346, per Mahapatra J.
114 . General Accident Fire and Life Assurance Corpn Ltd v Jan Mohommad AIR 1941 PC 6; Kirpal Singh v Harkishun Das
AIR 1957 Punj 273, p 275; Kiran Devi v Abdul Wahid AIR 1966 All 105; State of Bihar v Mhd Ismail AIR 1966 Pat 1;
Boota Mal v Union of India AIR 1962 SC 1716 [LNIND 1962 SC 133]; Trichua Dt Co-op Bank v Dy Collector (1963) ILR
1 Ker 438; Kiran Devi v Abdul Wahid AIR 1966 All 105, p 107, per DS Mathur J: equity and fairplay can thus, be
construed as much in favour of one as in favour of the opposite party; R Rudraiah & Anor v State of Karnataka & Ors
(1998) 3 SCC 23 [LNIND 1998 SC 147].
115 . Jethmal & Anor v Ambsingh AIR 1955 Raj 97 [LNIND 1954 RAJ 160].
Page 8 of 8
116 . AIR 1954 Tr&Coch 526; Desai Bhao v Karviram Gouda AIR 1952 Hyd 142: while recognising the principle that unless
the contrary is provided the law of limitation applicable to suits, applications etc, is the law at the date of the suit or
application and not the amending law coming into force during its pendency, it was held that where the amending law is
procedural, as for example, the rule made by the High Court under s 5, Limitation Act, governing applications under
Order 9, r 13, CPC, it takes effect immediately and applies to pending proceedings.
117 . AIR 1945 Bom 377, p 380; Ram Karan v Ram Das (1932) ILR 54 All 299, AIR 1931 All 635; Manjuri v Akkel Mahmud
19 IC 793 (Cal); Chotmal Ganesh Ram v Ramchand Tarachand AIR 1958 Bom 137 [LNIND 1957 BOM 103]-38;
Ramayya v Lakshmiah AIR 1942 PC 54; SS Gadgil v Lal & C AIR 1965 SC 171 [LNIND 1964 SC 168], 175.
118 . Tika Sau v Hari Lal (1940) ILR 19 Pat 752, AIR 1940 Pat 385, p 392 : s 49, Registration Act.
119 . Pars Ram v Mst Mewa Kunwar AIR 1930 All 516, p 567; Gardner v Lucas [1878] 3 AC 582 ; Blyth v Blyth and Pugh
[1965] 2 All ER 817.
120 . Shamlal v Om Prakash AIR 1955 Punj 223; Firm Hazi Sheikh Faizullah v State of Vindhya Pradesh AIR 1954 VP 5.
121 . RM Sheshadri v Province of Madras AIR 1954 Mad 543 [LNIND 1953 MAD 315], p 549.
122 . Central Provinces Syndicate Pvt Ltd v Commr of Income-tax, Nagpur AIR 1962 Bom 106 [LNIND 1961 BOM 13], pp
120-21.
123 . Buckman v Button [1943] 2 All ER 82.
124 . Guruviah Naidu v State of Madras AIR 1958 Mad 249 [LNIND 1957 MAD 116], p 251, (1958) 1 Mad LJ 132, per
Rajagopala Ayyangar J.
125 . Bihar Cotton Mills v Union of India AIR 1956 Pat 131: Dhoties (Additional Excise Duty) Act 1953, though retrospective,
held to be valid.
126 . Tikamdas Nadirmal v State of Madhya Pradesh AIR 1965 MP 271; Chacko v State of Kerala AIR 1966 Ker 46 [LNIND
1964 KER 156].
127 . State of Tamil Nadu v Thirumagal Mills Ltd [1972] 2 SCR 395 [LNIND 1971 SC 574], p 399, per Grover J.
128 . AIR 1966 SC 764 [LNIND 1965 SC 227].
129 . (2005) 7 SCC 396 [LNIND 2005 SC 630].
130 . Levy v Birn Schien 240 NW 140.
131 . Central Bank of India v Workers AIR 1960 SC 12 [LNIND 1959 SC 113], p 27; Kopparti Satyanarayana v Kopparti
Sitaramiah AIR 1963 AP 270 [LNIND 1962 AP 96].
132 . People v Spicer 99 NY 225.
133 . Ex parte Buckley 53 All 42; Keval Wadhera v Laxmi Narain (1985) 1 Rent CR 107 (Del).
134 . Jacobus v Colgate 217NY 235.
135 . State of Madhya Pradesh v Rameshwar Rathod AIR 1990 SC 1849 [LNIND 1990 SC 318], (1990) Cr LJ 1756, (1990)
(3) JT 298 (SC); quoted in Aimala Jayaram v State of Andhra Pradesh (1992) Cr LJ 2217 (AP).
136 . Hertz v Woodman 288 US 205.
137 . Palmer v Hickory Grove Cementary 82NYS 973.
138 . Matter of New York 138 NYS 594.
139 . Ely v Holton 15 NY 595; cited by Francis, J Mccaffrey, p 139.
140 . Ayub Ali Khan v Haseena Bano (1974) 14 ACC 20.
141 . Shyam Sunder & Ors v Ram Kumar & Anor (2001) 8 SCC 24 [LNIND 2001 SC 1541]; KM Sharma v Income-lax
Officer, Ward 13 (7), New Delhi (2002) 4 SCC 339 [LNIND 2002 SC 274].
142 . Benton v Wicktuire 54 NY 226, cited by Mccaffrey, p 140.
End of Document
Retrospective Operation of Rules
NS Bindra
Retrospective Operation of Rules
Rules cannot ordinarily be given retrospective effect, but the legislature may confer such a power on the rule-
making authority.143 It is well-settled that the subordinate legislative authority (rule-making authority) has no power
to make a rule or regulation with retrospective effect, unless it is expressly empowered to do so.144 Where the
notification itself does not, by its own terms, make its operation retrospective, it would be extravagant to claim that
by necessary implication it has retroactive operation.145
In Hukam Chand v Union of India,146 the question before the Court was whether in exercise of the powers
conferred by Section 40 of the Displaced Persons (Compensation and Rehabilitation) Act, 1954, the Central
Government could amend Rule 49 of the Displaced Persons (Compensation and Rehabilitation) Rules, 1955 with
retrospective effect. This question arose because the Settlement officer ordered the cancellation of the allotment of
land to the appellant under Rule 49, as the land was situated in urban areas. The Court held that since Section 40
did not explicitly provide for the power, either expressly or retrospectively, the Central Government could not have
retrospectively amended Rule 49. On the power of the delegated authority to make retrospective rules, the Court
observed:
The extent and amplitude of the rule making power would depend upon and be governed by the language of the
section. If a particular rule were not to fall within the ambit and purview of the section, the Central Government in
such an event would have no power to make that rule. Likewise, if there was nothing in the language of Section 40
to empower the Central Government either expressly or by necessary implication, to make a rule retroactively, the
Central Government would be acting in excess of its power if it gave retrospective effect to any rule. The underlying
principle is that unlike Sovereign Legislature which has power to enact laws with retrospective operation, authority
vested with the power of making subordinate legislation has to act within the limits of its power and cannot
transgress the same. The initial difference between subordinate legislation and the statute laws lies in the fact that a
subordinate law making body is bound by the terms of its delegated or derived authority and that court of law, as a
general rule, will not give effect to the rules, thus made, unless satisfied that all the conditions precedent to the
validity of the rules have been fulfilled...
143 . Rashid (Mhd) v State of Uttar Pradesh AIR 1979 SC 592 [LNIND 1978 SC 393].
144 . PV Sitarama Swami v State Transport Appellate-Tribunal(1980) 2 Andh WR 362.
145 . Sardar v State AIR 1961 Cal 181 [LNIND 1959 CAL 49], p 183.
146 . (1972) 2 SCC 601 [LNIND 1972 SC 373], per Khanna J; Income-tax Officer v Ponnoose (1970) 1 SCT 678, p
681, per Grover J: rules framed under art 309 of the Constitution stand on a different footing, p 683; Guruviah Naidu v
State of Madras AIR 1958 Mad 249 [LNIND 1957 MAD 116], (1958) 1 Mad LJ 132; JE Bilimoria & Sons v State of
Maharashtra (1990) Mah LJ 1079.
End of Document
Conclusion
NS Bindra
Conclusion
The chapter in the main distinguishes between the power possessed by the Legislature and the exercise of the
power. Thus the Courts have continually laid stress on the fact that the Legislatures can if they so desire provide for
the retrospective operation of a statute. However if such an express provision is not made, Courts would undertake
the task of interpretation presuming that the statute operates prospectively. This presumption against retrospective
operation and the requirement of express language is more rigorously implemented in relation to penal and tax
statutes and any law which divests people of vested rights. In the case of welfare statutes Courts are more willing to
make such like deductions from the general scheme of the Act. The retrospective operation of procedural laws is
also more easily conceded. Other than these validating or remedial statutes by the very nature of the objective they
are meant to fulfil necessarily have retrospective operation.
End of Document
Introduction
NS Bindra
Maxims used to aid Interpretation
Introduction
The Latin maxims discussed in this chapter provide a principle based direction to Courts in the matter of
interpretation. Even as maxims are not conclusive, they encapsulate a body of legal practice on matters they speak
to. This chapter has primarily elaborated upon those maxims which have been used and relied upon by the Courts.
For other Latin maxims not so frequently used see Table 2.4.
Abundans Cautela Non Nocet
In Gokaraju Rangaraju v State of Andhra Pradesh,1 the Court defined the maxim to mean there is no harm in being
cautious, and held that while Parliament may be presumed not to make superfluous legislation, the presumption
was not a strong presumption and statutes were full of provisions that were enacted as a measure of abundant
caution.
In this context, Craies observed:2Sometimes a term is defined in an interpretation clause merely ex abundanti
cautelathat is to say, to prevent the possibility of some common law incident relating to that term escaping notice.
Lord Herschell pointed out in Commissioner of Income-tax v Pemsel:3Such specific exemptions are often
introduced ex majore cautela to quell the fears of those whose interests are engaged or sympathies aroused in
favour of some particular institution, and who are apprehensive, that it may not be held to fall within a general
exemption.
Actus Curiae Neminem Gravabit
Broom4 defines the maxim actus curiae neminem gravabit to mean that an act of court shall prejudice no man.
Hence, the import of the maxim is that no man should suffer because of the fault of the court or delay in the process
of the court.
In Mansukhlal Vithaldas Chauhan v State of Gujarat,5 the question before the Court was whether a sanction under
Section 197 of Criminal Procedure Code, 1973, that was granted without application of mind could be sustained.
The appellant had approached the Supreme Court in appeal from the Gujarat High Courts judgment that issued a
writ ofmandamus directing the sanctioning authority to grant the sanction. The Supreme Court held that the validity
of a sanction depends on applicability of mind by the sanctioning authority to the facts of case, and also on the
material and evidence collected during the investigation. The sanctioning authority was under a duty to apply its
own independent mind to achieve genuine satisfaction prior to granting the sanction for prosecution. Hence, in this
case, the Court held that the order of sanction was bad because the discretion of the authority not to sanction had
been eroded and sanctions to prosecute were made a mechanical process due to the High Courts interference.
The Supreme Court observed:
The appellant has questioned the legality of sanction on many grounds one of which is that the sanctioning
authority did not apply its own mind and acted at the behest of the High Court which had issued a mandamus to
sanction the prosecution. On a consideration of the whole matter, we are of the positive opinion that the sanctioning
authority, in the instant case, was left with no choice except to sanction the prosecution and in passing the order of
Page 2 of 2
Introduction
sanction, it acted mechanically in obedience to the mandamus issued by the High Court by putting the signature on
a pro forma drawn up by the office. Since the correctness and validity of the sanction order was assailed before us,
we had necessarily to consider the High Court judgment and its impact on the Sanction. The so-called finality
cannot shut out the scrutiny of the judgment in terms of actus curiae neminem gravabit as the order of the Gujarat
High Court in directing the sanction to be granted, besides being erroneous, was harmful to the interest of the
appellant, who had a right, a valuable right, of fair trial at every stage, from the initiation till the conclusion of the
proceedings.
Actor Sequitur Forum Rei
Iyers Law Lexicon defines the maxim to mean the plaintiff follows the forum of the thing; in other words, the plaintiff
follows the court of the defendant.6 This maxim was considered and applied in Gurdyal Singh v Raja of Faridkot.7
Sardar Gurdyal Singh was for five years, beginning in 1869, in the service of the Raja of Faridkot, a state having
independent civil, criminal and fiscal jurisdiction, the judgment of whose courts were regarded as foreign judgments.
After Sardar Gurdyal Singh left the Rajas service and ceased to reside within the territorial jurisdiction of the
Faridkot state, the Raja of Faridkot obtained in the civil court of his native state two ex parte judgments for sums
amounting together to Rs 76,474-11-3 and two actions, founded on these judgments, were brought by the Raja in
the civil court at Lahore in British India. The trial court dismissed the actions on the ground that the judgments were
pronounced by the Faridkot court without jurisdiction against Sardar Gurdyal Singh. The Chief Court of Punjab
reversed the said decision and upheld the jurisdiction of Faridkot court. Sardar Gurdyal Singh appealed to the
judicial committee of the Privy Council, who, speaking through Lord Selborne, said:
Under those circumstances, there was, in their Lordships opinion, nothing to take this case out of the general rule,
that the plaintiff must sue in the court to which the defendant is subject at the time of the suit. Actor sequitur forum
rei, rightly stated by Sir Robert Phillimore, to lie at the root of all international, and of most domestic jurisprudence
on this matter. All jurisdiction is properly territorial, and extra territorium jus dicentiimpune non paletorn. Territorial
jurisdiction attaches (with special exceptions) upon all persons either permanently or temporarily resident within the
territory; while they are within it, but it does not follow them after they have withdrawn from it, and when they are
living in another independent country. It exists always as to land within the territory, and it may be exercised over
movables within the territory; and, in questions of statutes or succession governed by domicile, it may exist as to
persons domiciled, or who when living were domicile, within the territory (. In a personal action, to which none of
these causes of jurisdiction applies, a decree pronounced in absentum by a foreign court, to the jurisdiction of which
the defendant has not in any way submitted himself, is by international law an absolute nullity.
1 . AIR 1981 SC 1473 [LNIND 1981 SC 236]
2 . Craies, Statute Law, fifth edn, pp 199-200.
3 . [1891] AC 531, p 589; Auchterarder Presbytery v Lord Kinnoull 6 Cl& F 646, p 686; Victorian Rlys Commrs v Brown 3
CLR 316, p 341; Gopalan v State of Madras AIR 1950 SC 27 [LNIND 1950 SC 22], p 34: inclusion of cll (1) and (2) of
art 13 of the Constitution.
4 .Atma Ram Mittal v Ishwar Singh Punia AIR 1988 SC 2031 [LNIND 1988 SC 401].
5 . (1997) 7 SCC 622 [LNIND 1997 SC 1158]; Padma Sundara Rao (Deceased) & Ors v State of Tamil Nadu & Ors
(2002) 3 SCC 533 [LNIND 2002 SC 201].
6 . Iyer, Law Lexicon, p 25.
7 . (1899) ILR 22 Cal 222, pp 237 and 38; Christien v Delanvey (1899) ILR 26 Cal 931; Kassim Mamojee v Isuf Mohd
Sulliman (1902) ILR 29 Cal 509; Moazzim Hossein Khan v Raphael Robinson (1901) ILR 28 Cal 641; Adams v
Emperor (1903) ILR 26 Mad 607.
End of Document
Actus Non Facit Reum Nisi Mens Sit Rea8
NS Bindra
The maxim means that an act does not make one guilty unless it is accompanied by a guilty intention.9 Broom
explains the maxim thus:10as a general rule of our law, a guilty mind is an essential ingredient of crime at common
law, and that prima facie penal statutes should be so construed as to make mens rea an ingredient of any offence
created.
Salmond elaborately discusses the maxim and its application in the following terms:11
The general conditions of penal liability are indicated with sufficient accuracy in the legal maxim Actus non facit
reum nisi mens sit reathe act alone does not amount to guilt, it must be accompanied by a guilty mind. That is to
say, there are two conditions to be fulfilled before penal responsibility can rightly be imposed. The one is the doing
of some act by the person to be held liable. A man is to be accounted responsible only for what he himself does, not
for what other persons do or for events independent of human activity altogether. The other is the mensrea or guilty
mind with which the act is done. It is not enough that a man has done some act which on account of its mischievous
results, the law prohibits; before the law can justly punish the act, an inquiry must be made into the mental attitude
of the doer. For although the act may have been objectively wrongful, the mind and the will of the doer may have
been innocent.
In Brend v Wood,12 Goddard CJ. observed:
It should first be observed that at common law there must always be mens rea, to constitute a crime; if a person can
show that he acted without mens rea that is a defence to a criminal prosecution. There are statutes and regulations
in which parliament has seen fit to create offences and make people responsible before criminal court, although
there is an absence of mens rea, but [it] is certainly not the courts duty to be acute to find that mens rea is not a
constituent part of a crime. It is, in my opinion, of the utmost importance for the protection of the liberty of the
subject that the court should always bear in mind that, unless the statute, whether clearly or by necessary
implication, rules out mens rea as a constituent part of a crime, a defendant should not be found guilty of an offence
against the criminal law unless he has got a guilty mind. I should be sorry to think that in any case where the
essence of the offence is an intent to deceive, if the man charged proves that he acted in good faith and was
innocent of intent to deceive, the court would hold that he should nevertheless be convicted of intent to deceive.
R v Tolson13 provides a highly elaborate and invoked illustration of the application of this maxim. In that case, the
accused married Tolson on 11 September 1880. He deserted her on 13 December 1881, and she married another
man (who knew the full circumstances) on 10 January 1887, having been told that Tolson had perished in a ship
wreck. In December 1887, Tolson returned from America. The court was called upon to decide the question
whether a woman could be convicted of bigamy who had married a second time, believing in good faith and upon
reasonable grounds, that the first husband was dead. A charge of bigamy was brought against the accused under
Section 57 of the Offences Against the Person Act, 1861, which provided inter alia: Whoever being married shall
marry any other person during the life of the former husband or wife shall be guilty of felony.14
Willes J. construed the statute literally and held her guilty. He observed:
There is no doubt that under the circumstances, the prisoner falls within the very words of the statute. She, being
Page 2 of 6
married, married another person during the life of her former husband, and, when she did so, he had not been
continually absent from her for the space of seven years last past.
However, this opinion was of the minority. The majority through Cave J. observed:
At common law an honest and reasonable belief in the existence of circumstances which, if true, would make the
act for which a prisoner is indicted, an innocent act has always been held to be a good defence This doctrine is
embodied in the somewhat uncouth maxim, Actus non facit reum nisi mens sit rea. Honest and reasonable mistake
stands, in fact, on the same footing as absence of the reasoning faculty, as in infancy, or perversion of that faculty,
as in lunacy. Instances of the existence of this common law doctrine will readily occur to the mind. So far as I am
aware, it has never been suggested that these exceptions do not equally apply in the case of statutory offences
unless they are excluded expressly or by necessary implication. Now it is undoubtedly within the competence of the
legislature to enact that a man shall be branded as a felon and punished for doing an act which he honestly and
reasonably believes to be lawful and right; just as the legislature may enact that a child or a lunatic shall be
punished criminally for an act which he has been led to commit by the immaturity or perversion of his reasoning
faculty. But such a result seems so revolting to the moral sense that we ought to require the clearest and most
indisputable evidence that such is the meaning of the Act.
Sir James Stephen, in the same case, looked at it from another point of view. He said:
My view of the subject is based upon a particular application of the doctrine usually, though I think, not happily,
described by the phrase Non est reus nisi mens sit rea (one is not guilty unless his intention be guilty). Though the
phrase is in common use, I think it most unfortunate, and not only likely to mislead but actually misleading, on the
following grounds: It naturally suggests that apart from all particular definitions of crimes, such a thing exists as
mensrea, or guilty mind which is always expressly or by implication involved in every definition (to an unlegal mind it
suggests that by the law of England, no act is a crime which is done from laudable motivesin other words, that
immorality is essential to crime (the principle involved appears to me, when fully considered, to amount to no more
than this. The full definition of every crime contains, expressly or by implication, a proposition as to a state of mind.
Therefore, if the mental element of any conduct alleged to be a crime is proved to have been absent in any given
case, the crime so defined is not committed. Or again, if a crime is fully defined, nothing amounts to that crime
which does not satisfy that definition. Crimes are, at the present day, far more accurately defined, by statute or
otherwise, than they formerly were. The mental element of most crimes is marked by one of the words maliciously,
fraudulently, negligently or knowingly.15
But it is laid down as a principle of general application, that unless the statute creates an offence independently of
dishonest intention, there ought not be a conviction unless the guilty mind is proved.16
Exception to the Rule
Griffith CJ. observed in Ferrier v Wilson:17 There is no general rule of law that I know of that an act may not be
punishable without mens rea. There are innumerable instances nowadays in which mens rea is not an essential
element of an offence.18 Whether there are sufficient grounds for inferring that Parliament intended to exclude the
general rule that mens rea is an essential element in every offence, it is generally necessary to go behind the words
of the enactment and take other factors into consideration.19
Wright J laid down in Sherras v De Rutzen20 that the presumption that mens rea is an essential ingredient in every
offence is liable to be displaced either by the words of the statute creating the offence or by subject-matter with
which it deals, and that both must be considered. The answer to the question whether the legislature intended that
no one should be deemed to contravene its provisions so long as he was honestly ignorant depends upon the terms
of the statute or ordinance creating the offence.
In Harish Chandra v Emperor,21 the accused was the proprietor of a firm known as Durga Prasad Harish Chandra,
and was charged that on 7 March 1944, he sold 43 pieces of malmal cloth No 677 of Swadeshi Mills, Bombay, at
the rate of Rs 14 per piece when the control price of the same was only Rs 13-4-6 fixed by the textile commissioner
under the provisions of clause 12 (4) of the Cotton Cloth and Yam (Control) Order, 1943. The defence of the
accused was that on 4 March 1944, he had left for Bombay in connection with a marriage and did not return to
Page 3 of 6
Cawnpore till 15 March 1944, and that he had left his munim, Badri Prasad, in charge of his shop during his
absence and that if, against his instructions and without his knowledge his munim sold the cloth at a rate higher
than the control rate, the accused was not liable and should not be punished for contravention of Rule 81, Defence
of India Rules and the said Order. Malik J, thereupon observed inter alia:
A man cannot be guilty of an illegal act by his agent, and be held responsible for that act, unless he has given the
agent authority, directly or indirectly, to do that illegal act. No one who is an agent for a legal purpose can make the
principal responsible for an illegal act, unless the principal has in some way, directly or indirectly, authorised it. The
reason for the rule is obvious. It is a general principle of criminal law that there must be some blameworthy
condition of mind or mens reathere may be negligence, malice, guilty knowledge or the like...From a discussion of
the above cases it will be clear that in cases of offences created by statute, we have to examine the language of the
statute, its scope and its object, to see whether the principal could be held liable. So far as the scope and object are
concerned, it is obvious that the intention was to put an end to black-marketing and a duty was cast on the dealer
not to sell cloth at a rate higher than the rate fixed. It was a public duty imposed by the legislature. The legislation
was passed in the general interest, for the protection of the public, and there can be no doubt about its usefulness.
There can be no doubt further that in this case the servant was acting within the scope of his authority and in the
course of his employment, and it was the duty of the master to see that, while acting within the scope of his
authority, delegated to him, the servant carried out the provisions of the Act. If this interpretation were not accepted
the result would be that the dealer would not be punished for the acts of his servant and the servant has not been
made punishable for the contravention of the rules, and in cases of firms dealing in cloth, which must of necessity
act through an agent or a servant, neither the firm nor the servant could thus be held liable. Hence, the Court held
that the requirement of mens rea could be excluded, and the accused could be held guilty.
In State of Maharashtra v Mayer Hans George,22 the accused had been caught on-board a flight with quantities of
gold forbidden under the Foreign Exchange Regulation Act, 1947. He argued that since he was in transit through
India and had not intended to disembark and enter the territory of India, he did not intend to violate the law. Hence,
there was nomens rea present, due to which he could not be held guilty of the offence. The Court rejected the
contention, and held the accused guilty because the statute had a strict liability standard of guilt with no explicit
requirement of mens rea.
Nathulal v State of Madhya Pradesh23 changed the position from the aforementioned case. The matter dealt with a
crime under Section 7 of the Essential Commodities Act, 1955. The provision did not have an explicitmens rea
requirement, yet the Court held that a crime under Section 7 could not be committed without the requirement of
mens rea being satisfied. The Court observed:
Mens rea is an essential ingredient of a criminal offence. Doubtless a statute may exclude the element of mens rea,
but it is a sound rule of construction adopted in England and also accepted in India to construe a statutory provision
creating an offence in conformity with the common law rather than against it unless the statute expressly or by
necessary implication excluded mens rea. The mere fact that the object of the statute is to promote welfare
activities or to eradicate a grave social evil is by itself not decisive of the question whether the element of guilty
mind is excluded from the ingredients of an offence. Mens rea by necessary implication may be excluded from a
statute only where it is absolutely clear that the implementation of the objection of the statute would otherwise be
defeated.
Exception Usually Limited to Minor Offences
The case of Shrinivas Mall v Emperor24 dealt with the Defence of India Rules.25 The High Court of Patna took the
view that even if the proprietor had not been proved to have known of the unlawful acts of his servant, he would still
be liable on the ground that where there is an absolute prohibition and no question of mens rea arises, the master is
criminally liable for the acts of his servant. The judges dissented from this view and observed:
They see no ground for saying that offences against those of the Defence of India Rules here in question are within
the limited and exceptional class of offences which can be held to be committed without a guilty mind. See the
judgment of Wright J in Sherras v De Rutzen.26 Offences which are within that class are usually of a comparatively
minor character, and it would be a surprising result of this delegated legislation if a person who was morally
innocent of blame could be held vicariously liable for a servants crime and so punishable with imprisonment for a
term, which may extend to three years.
Page 4 of 6
Argumentum a Simili Valet in Lege27
The meaning of the maxim is that an argument from a like or analogous case is good in law. Paton opined:28
When there is no code which provides precise directions as to the sources in the absence of authority, a judge will
normally turn to persuasive precedents, text-books, the use of analogy, and such help as may be afforded by
custom or the course of business. Analogy is a useful weapon but it must be cautiously applied.
Mill describes it as follows:
Yet analogy can furnish only a guide, not a decisive answer. There are nearly always two conflicting analogies
which may be used in law...the advantage of a proper use of analogy is that it enables the new situation to be dealt
with by a rule which ca n be placed in a coherent relation with rules that are already established. It is thus assumed
that the law is a consistent body of principles and every attempt is made to keep it such.
The Privy Council have crystallised the use of analogy in Ram Chander Dutt v Jogesh Chander Dutt:29
Now arguments from analogy may arise where a principle of law is involved; but where the courts are dealing with
the positive enactments of a statute, reasons founded upon analogies are scarcely applicable. In another case,30 it
was said: We cannot extend positive law by analogy or parity of reasoning.
In Sadhu Singh v Secretary of State of India,31 the question for decision was that when ancestral property held by
a man subject to Punjab customary law was attached and sold by order of a criminal court under Section 68 of the
Code of Criminal Procedure, 1898, did the sale dispose of the life interest of that man only, or the right of
inheritance after his death of his male lineal descendants or of collaterals, descended from the original holder of the
property, was extinguished. Chatterji J. observed as follows:
A case of this description has not arisen before and is not to be found referred to in the record of customary law. It
does not follow, however, that it is not capable of being decided on principles of that law by applying them to the
present set of facts. Law always lags behind the progress of society and if we were to insist that for every fresh
complication of facts that requires decisions some positive rule directly applicable must be found, courts of justice
would be paralysed in exercising their functions in many instances and the greatest inconvenience would be
caused. Principle underlying the existing law must be extended by analogy and other approved methods to new
phases of affairs. This equally applies in the case of customary law.
In Vishwanath v Ram Krishna,32 the plaintiff claimed abatement of rent on the ground, inter alia, that the land had
then become exposed to inundation from the sea. However, there was no legislation in the Bombay Presidency,
such as there existed in other parts of India33 permitting abatement of rent in case of such deterioration as
opposed to the case of total loss of the land held on tenancy; or part thereof. No usage for abatement of rent in
cases analogous to that of the plaintiff was pleaded or attempted to be proved at the trial. Fawcett J. (with whom
Coyajee J concurred) observed:
The mere fact that statutory rights to abatement of rent on a lesser ground like that now in question have been
created in other provinces does not justify the view that such a right exists, as part of the general law of the country.
On the contrary, I think it indicates, that it was considered necessary to legislate, in order to create such a right. The
enactments are in an ordinary form, not in that of affirmatory legislation.
Argumentum Ab Auctoritate Est Fortissimum In lege
This maxim means that an argument from authority is most powerful in law.34
Page 5 of 6
8 . For the relevance of this maxim in interpreting penal legislations see part III infra.
9 . 3 Inst 307.
10 .Legel Maxims, tenth edn, pp 207-08.
11 . Salmond, Jurisprudence, tenth edn, p 367.
12 . (1946) 110 JP 317, 175 LT 306; Hatimali v Crown AIR 1950 Nag 38, 42; Stephan J, observed in a leading case: Reg v
Tolson [1889] 23 QBD 168, p 187.
The full definition of every crime contains, expressly or by implication, a proposition as to a state of mind. Therefore, if the
mental element of any conduct alleged to be a crime is proved to have been absent in any given case, the crime so
defined is not committed; or, again, if a crime is fully define, nothing amounts to that crime which does not satisfy that
definition.
Arab Mihan v Emperor AIR 1942 Sind 167-68.
13 . [1889] 13 QBD 168 .
14 . Provided that nothing in this Act shall extend to any person marrying a second time whose husband or wife shall have
been continually absent for the space of seven years last past, and shall not have been known by such person to be
living with in that time.
15 . Craies, Statute Law, Fifth edn, pp 508-10; see also R v Wheat [1821] 2 KB 119 .
16 .Emperor v Chaturbhuj Narain, AIR 1936 Pat 350, p 352 (1936) ILR 15 Pat 108.
17 . 4 CLR 785, p 794.
18 .Hari Krishna v State (1980) 17 ACC 43.
19 .Inder Sain v State of Punjab (1973) SCC 813 (Cr).
20 . [1895] 1 QB 918, p 921.
21 . AIR 1945 All 90.
22 . AIR 1965 SC 722 [LNIND 1964 SC 415].
23 . AIR 1966 SC 43 [LNIND 1965 SC 97].
24 . AIR 1947 PC 135, p 139.
25 . Rule 81 (2).
26 . [1895] 1 QB 918, p 921.
27 . Co Litt 191.
28 . Paton, Jurisprudence, 1946, p 166.
29 . (1873) 19 WR 353; Guru Das v Kali Das Changa (1914) 24 IC 287 (Cal); Hemendra Nath Roy v Upendra Narain Roy
(1916) 32 IC 437, p 441 (Cal); Khushrobhai v Hormazsha (1887) ILR 11 Bom 727, p 732.
30 .Jumoone Dassaya v Bamasoondary Dassya (1875-76) ILR 1 Cal 289, p 291, per Sir Colville J.
31 . 18 PR 1908, 19 PWR 1908, 156 PLR 1908.
32 . AIR 1926 Bom 86, (1948) ILR 50 Bom 94.
33 . Cfss 38 and 52, Bengal Act 8 of 1885; ss 35-36, Bengal Act 6 of 1908; ss 15 and 18, Central Provinces Act, 11 of
1898; ss 38-39, Madras Act, 1 of 1908; ss 18, 29 and 35B, Oudh Act, 22 of 1868; ss 20-26, Punjab Act 16 of 1887; ss
41-48, United Provinces Act, 2 of 1901.
34 . Co Litt 254.
Page 6 of 6
End of Document
(a) Subordinate Courts
NS Bindra
(a) Subordinate Courts
A magistrate is bound to follow the authority of the High Court to which he is subordinate. Wherever, therefore, he is
called upon to decide a question of law, it becomes his duty to ascertain whether any pronouncement of the High
Court exists on the point. Omission to do so is as much dereliction of duty as omission to refer to sections of the
statute. The disregard of authority is, however, something still more objectionable. It amounts to an act of
insubordination.35
Pathak J. held in Karam Hussain v Mohd Khalil:36
It is the bounden duty of the judges of courts subordinate to this court to implicitly follow the decisions pronounced
by this court and we deprecate any attempt on their part to criticise them or to refuse to follow them.
The rule that every subordinate judge is duty bound, loyally to accept the rulings of the High Court to which he is
subordinate is a well recognised rule, to which attention has been called by the High Court on a number of
occasions. Abdul Rahman J. in Agha Ali v Emperor37 observed:
Every judge or magistrate in this province is bound to follow the decisions of this court and to accept the law as laid
down by this court, no matter what his personal views may be. He has no option in the matter. If he considers
himself impelled to present his point of view and does not find it to have been considered and rejected, he may
submit it respectfully but nevertheless he has no option but to follow the authority of this court and decide the case
accordingly unless it has been overruled by a division bench if the previous decision happened to be that of a single
judge, by a full bench if it was a decision of a single judge or of a division bench or by the privy council in any other
case.
35 .Rex v Ram Dayal AIR 1950 All 134 [LNIND 1949 ALL 72]; Dhondo Yeshwant v Mishrilal Surajmal AIR 1936 Bom 59,
(1936) ILR 60 Bom 290; Karam Hussain Mukhtar v Mohammad Khalil AIR 1946 All 509.
36 . AIR 1946 All 509, p 511; SKRM Chettyar v VEA Chettyar AIR 1935 Rang 525.
37 . AIR 1944 Lah 54-55, (1943) ILR Lah 760; Dhala Bahlok v Dhala Lakhan AIR 1936 Lah 12.
End of Document
(b) Expression of its Own Opinion by Subordinate Court
NS Bindra
A judge has always the right of expressing his own opinion and indicating that he is not in agreement with an
authority binding on him, but he is nevertheless duty bound to follow it. The fact that a judge thinks that some
argument has been overlooked in a judgment binding on him is no reason for refusing to follow it.38 Such
expression of opinion by the subordinate judge must be couched in a respectful language. In Kashi Ram v
Emperor,39 Young CJ.had to reprimand severely the sessions judge in the following terms:
There is one matter to which we must allude before leaving this case. The learned sessions judge has discussed in
a most disrespectful manner certain legal rulings of this High Court and others. He discusses the law with regard to
the admission of statements of the accused under Section 27, Evidence Act. He talks about mental gymnastic,
ridiculous game and artificiality of the law. He himself says that he is prepared to take part in this force, which the
law enjoins. We must point out that it is highly improper for a subordinate judge so to criticise rulings by which he is
bound and especially to criticise them in disrespectful language. We draw the attention of the registrar to these
observations of this learned judge and direct him to call for an explanation from the learned judge.
If there are two decisions of a High Court, one of a single judge and another of a bench composed of two judges,
then, unless the subordinate court found some grounds for distinguishing the one decision from the other, it would
be bound to follow the decision given by the bench.40 Where there are decisions of a High Court, it is the duty of
courts subordinate to that High Court to be guided by them rather than by the decisions of other High Courts.41
Niyogi J. regretted, in Kishan Deoulu Mali v Gangabai42 the tendency on the part of the subordinate courts of the
central provinces to take recourse to the decisions of the Allahabad High Court in matters specially provided for by
any local enactments of those provinces, which was also deprecated in Ram Chandra v Rupchand.43
He observed:
It is high time that the subordinate court put themselves on their guard against infringing the rule laid down in that
case, otherwise they would betray themselves into the error of making the law instead of applying the law as it
stands. Hence, the stand of the judiciary has been that it is not open to the lower court not to follow a direct decision
of their High Court and to rely upon what appeared to it some grounds of equity and follow a decision of another
High Court.44
38 .Manilal v Venkatachalapathi AIR 1943 Mad 471 [LNIND 1943 MAD 108], (1944) ILR Mad 95; Seshamma v Venkata
Narasimharao AIR 1940 Mad 356, (1940) ILR Mad 484.
39 . AIR 1935 Lah 433-34.
40 .Raghavalu v Thandaroya AIR 1931 Mad 71.
41 .Thadi Subbi Reddi v Emperor AIR 1930 Mad 869 [LNIND 1930 MAD 38]; Mahadeo Prasad v Jagarnath Prasad AIR
1934 Pat 173, (1934) ILR 13 Pat 303; Lala Mistry v Ganesh Mistry AIR 1938 Pat 120, (1938) ILR 17 Pat 281: a lower
court is not entitled to prefer decisions of other High Courts even by Full Benches to a decision of the Division Bench of
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the High Court to which it is subordinate; Raghavalu v Thandaraya AIR 1931 Mad 71; Ram Saran v Emperor AIR 1945
Nag 72.
42 . AIR 1936 Nag 278, (1937) ILR Nag 108.
43 . AIR 1927 Nag 296.
44 .Poomalai Padayachi v Annamalai Padayachi AIR 1944 Mad 124 [LNIND 1943 MAD 41].
End of Document
(c) Revenue Courts
NS Bindra
(c) Revenue Courts
In cases in which appeals lie to the district judge and ultimately to the High Court, it is the duty of the assistant
collectors to follow the rulings of the High Court in preference to the rulings of the board of revenue.45 The
decisions of the board of revenue are entitled to respect in the High Court, and if possible, differences should be
avoided. But those rulings are not binding upon the High Court in any way and the High Court cannot be held
responsible for any practical difficulties which may thus arise. A view adopted by the High Court, however, contrary
to the view taken by the board, would be of mere academical interest and of no practical utility for the simple reason
that the revenue officers (collectors) are bound by the decisions of the board and not by the decisions of the High
Court.46
45 .Bisheshar Nath v Abdul AIR 1934 All 333: decisions of the revenue courts are not binding on the High Court; Kashi
Pershad v Bed Pershad AIR 1940 Nag 113.
46 .Fitrat Husain v Liaqat Ali AIR 1939 All 291.
End of Document
(d) High Court Benches
NS Bindra
A judge in the High Court is ordinarily bound to consider with respect the decision of another judge of the same
court, but if he is convinced that the decision of the single bench is erroneous, he is not under an obligation to follow
it against his own judgment.47 Judges are not entitled to legislate or to bind their successors to a construction of an
Act which the language plainly does not justify.48 By interpreting statutes, they do not make new law but only
declare that the provision interpreted by them was only according to the said interpretation.49 A special bench is
not bound by the full bench decision of that court.50
There can be no doubt that a full bench can overrule a division bench and that a full bench must consist of three or
more judges; but it would seem anomalous to hold that a later full bench can overrule an earlier full bench, merely
because the later bench consists of more judges than the earlier. If that were the rule, it would mean that a bench of
seven judges, by a majority of four to three, could overrule a unanimous decision of a bench of six judges, though
all the judges were of coordinate jurisdiction.51 However, a full bench case decided by three judges, although it
may be a decision of two judges against the decision of third, is always entitled to respect from a division bench
presided over by two judges.52 A division bench of the High Court must follow the full bench decision of that court
until the Supreme Court expresses a definite disagreement with them. Mere expression of dissatisfaction by the
Privy Council about the principles decided by the full bench is not sufficient to take away their authority.53 The
decision of a division bench of a High Court is binding not only on the subordinate courts, but ordinarily also on the
other division benches of that court, so long as that decision is not overruled by a full bench of that High Court, or,
on appeal, by a higher court.54
For a more detailed exposition on the inter se authority of benches see part IV of this book on the Role of
Precedents in Interpretation.
Contemporanea Expositio Est Optima Et Fortissima In
legeThe language of a statute must be understood in the sense in which it is understood when it was passed.
Those who live at or near the time when it was passed may reasonably be supposed to be better acquainted than
their descendants with the circumstances to which it has relation, as well as with the sense then attached to
legislative expressions.55 The principle though not decisive, is entitled to considerable weight.56 It should be
clearly wrong before it is overturned.57 The maxim contemporanea expositio as laid down by Coke was applied to
construing ancient statutes but not to interpreting Acts which are comparatively modern. There is a good reason for
this change in the mode of interpretation. The fundamental rule of construction is the same whether the court is
asked to construe a provision of an ancient statute or that of a modern one, namely, what is the expressed intention
of the legislature. It is perhaps difficult to attribute to a 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. It is more reasonable to confine its intention only to the circumstances
obtaining at the time the law was made. But in a modern progressive society, it would be unreasonable to confine
the intention of a legislature to the meaning attributable to the words used at the time the law was made, for a
modern legislature making laws to govern a society, which is fast moving, must be presumed to be aware of an
enlarged meaning, the same concept might attract with the march of time and with the revolutionary changes
brought about in social, economic, political and scientific and other fields of human activity. Indeed, unless a
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contrary intention appears, an interpretation should be given to the words used to take in new facts and situations, if
the words are capable of comprehending them.58
Where the words of an Act are obscure, and where the sense of the legislature cannot, with certainly, be collected
by interpreting the language according to grammatical correctness, considerable stress is laid upon the light in
which it was received and held by the contemporary lawyers of repute.59
Coke LJ. said:60
Great regard ought in construing a statute, to be paid to the construction which the sages of the law, who lived
about the time or soon after it was made, put upon it, because they were best able to judge of the intention of the
makers at the time when the law was made.
The best evidence to show what was the construction adopted at the time when an Act was passed, must
necessarily be found in the decisions of the court, or in works of writers of authority. But a very strong inference
may also be drawn from long uninterrupted usage, which is presumed to have commenced with the passing of the
Act in absence of proof to the contrary.61
But it would not be correct to say that every change in the phraseology introduced by way of amendment implies a
change in the content of the provision or in its meaning, for it entirely depends upon whether the words used are
merely meant to clarify or alter the true existing meaning.
In Government Transport Service, Bombay v SL Mishra,62 the Court observed:
The rule of interpretation of a statute by resorting to the principle of contemporanea expositio, though acted upon in
certain cases by the Supreme Court in our country, has been held to be a rule which must be confined within
compass and applied with care and caution. It has been pointed out by the Supreme Court that where the words
used in the Statute are clear and admit of no ambiguity, it would be erroneous to construe them by resorting to the
principle of contemporanea expositio.
In Godawat Pan Masala Products v Union of India,63 the court allowed certain correspondence between the
Government of Maharashtra and the Central Government prior to the impugned amendment to be taken into
consideration on the strength of the maxim.
In Desh Bandu Gupta v Delhi Stock Exchange,64 the Supreme Court held that this principle can be invoked,
though the same will not always be decisive on the question of construction. But the contemporaneous construction
placed by administrative or executive officers charged with executing the statute, although not controlling is
nevertheless entitled to considerable weight as highly persuasive. If the interpretation is erroneous, the court will
refuse to follow such construction without hesitation.65 The principal question that arose, for judicial determination,
was whether the state legislature had the competence to pass Bombay City Civil Court and Bombay Court of Small
Causes (Enhancement of Pecuniary Jurisdiction & Amendment) Act, 1986, and the Maharashtra High Court
(Hearing of Writ Petitions by Division Bench and Abolition of Letters Patent Appeals) Act, 1986.66 Responding to
the question of constitutionality, the petitioner contended that the constitutional interpretation as understood by the
union executive should be accepted by the court. The petitioner placed reliance on the doctrine of contemporanea
expositio and contended that the same could be derived from the submissions of the Attorney General in a previous
case before the Delhi High Court.
In Geetika Panwar v NCT of Delhi,67 The competency of the state legislature to enlarge the jurisdiction of the High
Court was questioned. The Delhi High Court stuck down the legislation as ultra vires the constitution on the basis of
lack of legislative competence and the Parliament stepped in to enact the Delhi High Court (Amendment) Act 2003.
The petitioner argued that since the Parliament itself accepted the reasoning of the Delhi High Court and enacted a
curative legislation the Supreme Court must accept the contention of the petitioners that the State legislatures did
not have the power to enact these legislations. The Supreme Court rejecting this contention observed:
We are afraid, when it comes to interpretation of the Constitution; it is not permissible to place reliance on
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contemporanea expositio to the extent urged. Interpretation of the Constitution is the sole prerogative of the
constitutional courts and the stand taken by the executive in a particular case cannot determine the true
interpretation of the Constitution.
The court further observed that the enactment of the curative legislation does not necessarily mean that the
executive acceded to the finding of legislative incompetence. It could well be that the executive might have taken
the shorter course of amending the legislation instead of challenging the view before the Supreme Court.
Delegatus Non Potest Delegare68
The maxim means that a delegated authority cannot be redelegated, or in other words, one agent cannot lawfully
appoint another to perform the duties of agency. One of the settled maxims in constitutional law is that the power
conferred upon the legislature to make laws cannot be delegated by that department to any other body or authority.
Where the sovereign power of the state has located the authority, there it must remain; and by the constitutional
agency alone the laws must be made until the Constitution itself is changed. The power to whose judgement,
wisdom and patriotism this high prerogative has been entrusted cannot relieve itself of the responsibility by
choosing other agencies upon which the power shall be devolved, nor can it substitute the judgment, wisdom and
patriotism of any other body for those to which alone the people have seen fit to confide this sovereign trust. Dicey
observes:69
No legislative body can delegate to another department of the government, or to any other authority, the power,
either generally or specially, to enact laws. The reason is found in the very existence of its own powers. This high
prerogative has been entrusted to its own wisdom, judgment and patriotism, and not to those of other persons, and
it will act ultra vires, if it undertakes to delegate the trust, instead of executing it. This rule in a broad sense involves
the principle underlying the maxim delegatus non potest delegar, but it is apt to be misunderstood and has been
misunderstood. In my judgment, all that it means is that the legislature cannot abdicate its legislative functions and
it cannot efface itself and set up a parallel legislature to discharge the primary duty with which it has been entrusted
(What constitutes abdication and what class of cases will be covered by that expression will always be a question of
fact, and it is by no means easy to lay down comprehensive formula to define it, but should be recognised that the
rule against abdication does not prohibit the legislature from employing any subordinate agency of its own choice
for doing such subsidiary acts as may be necessary to make its legislation effective, useful and complete.
In the case of a legislature which is a sovereign legislature, there is power to permit others after declaring the policy
to fill up details. It would be impossible otherwise for a legislature to legislate efficiently. To quote the words of
Cardozo J in Panama Refining Co v Ryan:70The discretion which has been left to the subordinate legislative
authority must not be undefined and vagrant. It must be canalised within even banks which keep it from overflowing.
In Cantonment Board, Poona v WI Theatres Ltd,71 the Court applied the Panama Refining case to hold that there
was nothing in Section 59 (l)(xi) of the Bombay District Municipal Act, 1901, which rendered that section ultra vires
of the Governor-in-Council because of legislative power having been delegated. The Governor-in-Council in this
case was legislating upon the subject of local self-government. In this process, it was deemed desirable that
municipalities be constituted within the province, and if municipalities were to be constituted within the province, it
was necessary to allot to them sources of taxation. The sources of taxation mentioned in subsections (i)-(x) of
Section 59 (1) were allotted to them. This was considered necessary because these sources were insufficient, or
because sometimes the municipalities might prefer to levy another tax in lieu of taxes mentioned in clauses (i)-(x)
that they should have power to levy other taxes also. Section 59 (l)(x) provides that they had the power to impose
any other tax provided that the previous approval of the Governor-in-Council to the nature and object of the tax had
been obtained. The Court held that it could not possibly be said that the legislature had not itself legislated at all on
the subject matter.
In Hirabhai Ashabhai Patel v State of Bombay,72 the power of taxation conferred upon the Bombay Municipality
under Section 139 of the Bombay Municipal Corporation Act, 1888, was assailed as excessive delegation. The
Court held that it was for the purpose of local self-government, and if the legislature was competent to impose a tax,
it could for the purposes of local self-government, instead of levying the tax itself, confer that power upon the local
authority, and the competence of the legislature could not be affected because the power that has been conferred is
an unlimited power. The Court observed:
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A delegation of certain functions is bad only if it amounts to an abdication of its functions by the legislature. In other
words, if the legislature instead of legislating itself, which is its own function, permits legislation by some other
authority or again, to put it in a different language, if the legislature, without laying down the policy, permits the
carrying out of a particular activity or a particular function by some authority, then it might be said that the legislature
has abdicated its own functions. Hence Section 169 of the Bombay Municipal Corporation Act 1888, which
empowers the commissioner to charge for water supplied by measurement is valid...Entry 5 in List II, Schedule VII,
Constitution of India, is very wide in its terms, and legislation is permissible to the state legislature with regard to
any subject of local government, and it is also permissible to the state legislature to confer powers upon a local
authority, provided the power is for the purpose of local self-government.
State Can Challenge delegated Legislation as Ultra Vires
It is open to the state to point out in court that a particular body to whom subordinate or delegate legislation is
entrusted has exceeded its limits of power under which it was functioning and hence, the particular piece of
delegated legislation is ultra vires. But the state cannot be allowed to plead before courts the unconstitutionality of
its own statutes. It would be a very dangerous course.73
Expressum Facit Cessare Tacitum
In ShevBuxMohata v Ajitnath Dutta,74 where there was a clause in a will authorising the executrix to sell a portion
of the property for certain specified purposes, it was held that the existence of the special power did not militate
against the general power of the executrix to dispose of the property in due course of administration. In the absence
of clear language restricting the general power of the executrix, the mere mention of the special clause would not
deprive the general right of management which includes the power of leasing out.
Generalia Specialibus Non Derogant
General words do not derogate from special provisions, or, special provisions will control general provisions.75
When the legislature has given its attention to a separate subject, and made provision for it, the presumption is that
a subsequent general enactment is not intended to interfere with the special provision unless it manifests that
intention very clearly. Each enactment must be construed in that respect according to its own subject-matter and its
own terms.76
In Fitzgerald v Champneys,77 Wood VC said:
In passing the special Act, the legislature had their attention directed to the special case which the Act was meant
to meet, and considered and provided for all the circumstances of that special case; and, having so done, they are
not to be considered by a general enactment passed subsequently, and making no mention of any such intention,
to have intended to derogate from that which, by their own special Act, they had thus carefully supervised and
regulated.
Earl of Selborne LC. observed in Seward v Vera Cruz:78
Now if anything be certain, it is this that where there are general words in a later Act capable of reasonable and
sensible application without extending them to subjects specially dealt with by earlier legislation, you are not to hold
that earlier and special legislation indirectly is repealed, altered or derogated from merely by force of such general
words, without indication of a particular intention to do so.
Craies79 quotes the reason of this rule from the observations of Wood VC in London and Black-wall Railway v
Limehouse District Board of Works:80
The legislature in passing a special Act has entirely in its consideration some special power which is to be
delegated to the body applying for the Act on public grounds. When a general Act is subsequently passed, it seems
to be a necessary inference that the legislature does not intend thereby to regulate all cases not specially brought
Page 5 of 7
before it, but looking to the general advantage of the community, without reference to particular cases, it gives large
and general powers which in their generality might, except for this very wholesome rule of interpreting statutes,
override the powers which, upon consideration of the particular case, the legislature had before conferred by the
special Act for the benefit of the public. The result of a contrary rule of construction work, would be supposed
afterwards by a general Act to throw it into the power of a few persons to prevent that public work from being
carried out.
The reason, says Crawford, behind this rule finds its foundation in two premises; the special Act is not repealed
because it is not named, or because there is no absolute inconsistency between the general Act and the special
Act.81 It is a sound principle of all jurisprudence that a prior particular law is not easily to be held to be abrogated
by a posterior law expressed in general terms and by the apparent generality of its language applicable to and
covering a number of cases of which the particular law is but one.82 If the legislature makes a special Act dealing
with a particular case and later makes a general Act, which by its terms would include the subject of the special Act,
and is in conflict with the special Act, nevertheless unless it is clear that in making the general Act, the legislature
has had the special Act in its mind and has intended to abrogate it, the provisions of the general Act do not override
the special Act. If the special Act is made after the general Act, the position is even simpler. Having made the
general Act, if the legislature afterwards makes a special Act in conflict with it, we must assume that the legislature
had in mind its own general Act when it made the special Act, and made the special Act which is in conflict with the
general Act, as an exception to the general Act.83
Illustrations of the Maxim
In Sultana Begum v Prem Chand Jain,84 it was held that Section 47 of the Code of Civil Procedure gave full
jurisdiction and power to the executing court to decide all questions relating to execution, discharge and satisfaction
of the decree. Order XXI, Rule 2 of the CPC, however, placed a restraint on the exercise of that power by providing
that the executing court shall not recognise or look into any uncertified payment of money or any adjustment of
decree. If any such adjustment or payment was to be pleaded by the judgment-debtor before the executing court
the latter, in view of the legislative mandate, had to ignore it if it has not been certified or recorded by the court. It
was further held that the general power of deciding questions relating to execution, discharge or satisfaction of
decree under Section 47 could be exercised subject to the restrictions placed by Order XXI, Rule 2 including sub-
rule (3) which contained special provisions regulating payment of money due under a decree outside the court or in
any other manner adjusting the decree. The general provision under Section 47 would therefore have to yield to
that extent to the special provisions contained in Order XXI, Rule 2 which had been enacted to prevent a judgment-
debtor from setting up false pleas so as to prolong or delay the execution proceedings.
In Khemraj Shri Krishnadas v Kisanlal Surajmal,85 the applicant was the successful plaintiff who had obtained a
decree against the defendant on the ground that an adoption under which the defendant obtained certain property
was invalid. The defendant appealed through his natural father, he being a minor, and applied for leave to appeal in
forma pauperis. This application was granted. But it was contended by the plaintiff-respondent that an order for
security should be made against the pauper and that he should give security for both the cost incurred in the lower
court and the costs of the appeal because Order XLI, Rule 10 of the CPC provided for such a security to be
furnished. This contention was repelled by Scott CJ. who observed:
In such a case as the present the question is whether that general provision relating to appeal in Order XLI applies
also to pauper appeals, so as to impose upon the court the duty of demanding security from a pauper appellant,
who ex hypothesi having been found to be a pauper cannot give security. In my opinion it does not apply. The
maxim is generalia specialibus non deroganta general does not weaken a special rule. Here the special rule is the
rule regarding pauper appeals and pauper suits.
The question in Iridium India Telecom v Motorola Inc86 arose from the order of the Division Bench of the Bombay
High Court in a Letters Patent Appeal holding that the amended provision of Order VIII, Rule 1 of the Code of Civil
Procedure, 1908, would not apply to the suits on the original side of the High Court and that such suits would
continue to be governed by the High Court original side rules. The issue under consideration was whether the
original side rules would take precedence over the amendment to Order VIII, Rule 1 in case of suits in original side
in the High Court. Citing a catena of decisions by the Supreme Court, the High Court observed that a Letters Patent
is the specific law under which a High Court derives its powers. It is not any subordinate piece of legislation. A
Letters Patent cannot be excluded by implication. Further, it is settled law that between a special law and a general
Page 6 of 7
law the special law will always prevail. A Letters Patent is a special law for the concerned High Court. The Code of
Civil Procedure is a general law applicable to all courts. It is well settled law, that in the event of a conflict between a
special law and a general law, the special law must always prevail. If there was any conflict between a Letters
Patent and the CPC, then the provisions of Letters Patent would always prevail unless there was a specific
exclusion. This is also clear from Section 4 of the CPC which provides that nothing in the code shall limit or affect
any special law.
In Ravichandran K v Metropolitan Transport Corporation Ltd,87 the Madras High Court refused to hold that the
benefit of accommodation on a supernumerary post provided under Section 47 of the Persons with Disabilities Act,
1995, could only be availed of if the disability was acquired during course of employment. This requirement of the
general Workmens Compensation Act, 1923, would not apply to the special Disability statute.
In Amarendra Pratap Singh v Tej Bahadur Prajapati,88 the Supreme Court held that the general provision relating
to adverse possession would not apply to tribals due to the explicit prohibition contained in the special law.
47 .Virjiban Dass Moolji v Biseswar Lal Hargovind (1921) ILR 48 Cal 69, p 77; Re Peregrino Rodrigues AIR 1945 Bom
173; see also Emperor v Abdul Wahab AIR 1945 Bom 110; Chaitram v Birdhi Chand (1915) ILR 42 Cal 1140.
48 .Punam Chand v Bombay Cloth Market Co Ltd AIR 1943 Bom 141, per Beaumont CJ.
49 .Raja Traders v Union of India 1976 Jab LJ 807.
50 .Chandra Binode Kundu v Ala Bux Dewa (1921) ILR 48 Cal 184, 193 : AIR 1921 Cal 15.
51 .Ningappa v Emperor AIR 1941 Bom 408, (1942) ILR Bom 26.
52 .Dip Chand v Sheo Prasad AIR 1929 All 593, (1929) ILR 51 All 910.
53 .Anant Ram v Khushai Singh AIR 1927 All 244; Ramija Bibi v Sharifa Bibi AIR 1943 Mad 560 [LNIND 1942 MAD 390]:
an expression of doubt is a different thing from overruling.
54 .Mahadeo Prasad v Jagnnath Prasad AIR 1934 Pat 173, (1934) ILR 13 Pat 303; Billimoria v Central Bank of India AIR
1943 Nag 340: the convention in Nagpur High Court is to refer the matter to the Chief Justice to constitute a Full Bench,
if the later Division Bench considers that the view expressed by the former Division Bench is wrong.
55 .ITC Ltd v Union of India AIR 1989 Cal 294 [LNIND 1987 CAL 318], (1988) 1 Cal LJ 109, (1988) 25 Reports 179,
(1988) 34 ELT 473 [LNIND 1987 CAL 318], (1988) 16 ECC 68, (1988) 17 ECR 148, (1988) 92 CWN 1035, (1988) 1
Bank CLR 563; Clyde Navigation v Laird [1833] 8 AC 658 , p 673; affirmed in Goldsmiths Co v Wyatt [1907] 1 KB 95,
p 107; Regent Street v Oxford [1948] Ch 735; Raja Ram Jaiswal v State of Bihar AIR 1964 SC 828 [LNIND 1963 SC
94]: as to applicability of the maxim to modern statutes and especially to s 25, Evidence Act.
56 .Desh Bandhu Gupta v Delhi Stock Exchnge Assn Ltd AIR 1979 SC 1049 [LNIND 1979 SC 151], p 1054, (1979) 4
SCC 365 [LNIND 1979 SC 238], [1979] 3 SCR 373 [LNIND 1979 SC 151]; State of Tamil Nadu v Mahi Traders (1989) 1
SCC 724 [LNIND 1989 SC 71]; Vijaymohini Mills v State of Kerala (1989) 1 Ker LT 515; Ajay Gandhi v B Singh (2004) 2
SCC 120 [LNIND 2004 SC 11].
57 .Union of India v Azadi Bachao Andolan (2004) 10 SCC 1 [LNIND 2003 SC 853].
58 .Senior Electric Inspector v Laxminarayan Chopra AIR 1962 SC 159, p 163; Laxmi Video Theatres v State of Haryana
(1992) 3 SCC 715, (1993) (4) JT 218 (SC); CESC Ltd v Subhash Chandra Bose (1992) 1 SCC 441 [LNIND 1991 SC
598]; Re Patrik Marten AIR 1989 Mad 231 [LNIND 1989 MAD 130], (1989) 1 Mad LJ 27; takes a different view relying
on Maxwell, Interpretation of Statutes, twelfth edn: may not be good law in view of SC decisions.
59 .Brooms Legal Maxims, tenth edn, pp 463-64.
60 . 2 Inst 11, 136, 181.
61 . Wilberforce, Statute Law, p 143.
62 . (1996) 72 Fac LR 675 (Bom): 1996 (5) Bomcr 291: (1996) III LLJ 670 Bom.
Page 7 of 7
63 . (2004) 7 SCC 68 [LNIND 2004 SC 737].
64 . AIR 1979 SC 1049 [LNIND 1979 SC 151], [1979] 3 SCR 373 [LNIND 1979 SC 151].
65 .Oswal Agro Mills Ltd v Collector of Central Excise AIR 1993 SC 2288 [LNIND 1993 SC 393].
66 .Jamshed N Gudar v State of Maharashtra (2005) 2 SCC 591 [LNIND 2005 SC 33].
67 . (2002) 99 DLT 840 [LNIND 2002 DEL 1215] : AIR 2003 Delhi 317 [LNIND 2002 DEL 1215]
68 . For an institution based interpretation of this maxim see Part I chapter 2 supra.
69 . Dicey, Constitutional Law, fourth edn, p 138.
70 . 79 L Ed 446.
71 . AIR 1954 Bom 261 [LNIND 1953 BOM 12], 265, 267.
72 . AIR 1955 Bom 185 [LNIND 1954 BOM 71]; Union of India v PK Roy AIR 1968 SC 850 [LNIND 1967 SC 320]: a case
under s 115 (5), States Integration Act, where the limits to the delegation of legislative powers by the Central
Government to State government were pointed out.
73 .Haryant C Shelat v State of Gujarat (1978) 19 Guj LR 970.
74 . AIR 1967 SC 1204 [LNIND 1966 SC 156], (1967) 1 SCWR 509 [LNIND 1966 SC 292].
75 . Ilbert 250.
76 .Barker v Edgar [1898] AC 748, p 754 per Lord Hobhouse.
77 . 2 J&H 31, p 54; quoted with approval in Re Smiths Estate, Clemens v Ward 35 Ch D 389; Marbury v Plowman 16
CLR 468, p 473.
78 . 10 AC 59, p 68; King-Emperor v Raja Probhat Chandra AIR 1927 Cal 423, 443 (1927) ILR 54 Cal 863; approved in
Probhat Chandra Burna v Emperor AIR 1930 PC 209, p 214.
79 . Craies, Statute law, fifth edn, pp 350-51.
80 . (1856) 26 LJ 164.
82 .Nicolle v Nicolle [1922] 1 AC 284; Parry v Harding [1925] 1 KB 11 .
83 .Corpn of Madras v Madras Electric Tramways Ltd AIR 1931 Mad 152 [LNIND 1930 MAD 155], p 156, (1931) ILR 54
Mad 364.
84 . (1997) 1 SCC 373 [LNIND 1996 SC 2089].
85 . (1918) ILR 42 Bom 5, 9:

Where the legislature has in a special Act laid down particular conditions for the exercise of a power by the court. I do think
that we are justified in disregarding those conditions and holding by reference to a general Act that we have powers
beyond those given in the special Act.
Chettyar E Firm v Commr of Income-tax AIR 1930 Rang 27; Municipality of Karachi v Karachi Electric Supply Corpn AIR
1926 Sind 115; Damodara Haribaksha Agrawal v Ramratidevi&Ors AIR 1989 Bom 257 [LNIND 1988 BOM 504], (1989)
Mah LJ 425 [LNIND 1988 BOM 504], (1989) 2 Bom CR 26 [LNIND 1988 BOM 504]; Aska Central Multi Co-op Society v
Secy, Orissa Khadi and Village Industries AIR 1992 Ori 238.
86 . (2005) 2 SCC 145 [LNIND 2005 SC 15].
87 . (2004) 3 LLJ 152 Mad.
88 . (2004) 10 SCC 65 [LNIND 2003 SC 1020].
End of Document
(e) Limits to Rule
NS Bindra
(e) Limits to Rule
There is another class of cases to which this maxim is hardly applicable. If there is a conflict between a basic
natural right, even though not specifically declared by the Constitution, and the provisions of any general or special
law, it is the basic right of natural justice that would prevail, and such provisions being in conflict with it must
consequently give way.89
Bramwell LJ. observed in Pellas v Neptune Ins Co:90
But the rule must not be pressed too far that a general statute may repeal a particular statute and if a special
enactment, whether it be in a public or private Act, and a subsequent general Act are absolutely repugnant and
inconsistent with one another, the courts have no alternative but to declare the prior special enactment repealed by
the subsequent general Act.91
In Subal Paul v Malina Paul,92 the controversy was whether a letters patent appeal would lie against the judgment
of a Single Judge of the High Court filed under Section 299 of the Indian Succession Act, 1925. The court held that
the appellate jurisdiction i.e. the letters patent jurisdiction of the superior court would not be excluded simply
because the lower Court exercises its special jurisdiction under the 1925 Act. The Court admitted that an exception
to the said rule would be when the special Act sets out a self contained code, in which case the applicability of the
general law procedure would be impliedly excluded.
In S.Prakash v KM Kurian,93 the question before the Court was whether an amendment brought to the Kerala
State and Subordinate Service Rules, 1958, would take away the right of the Petitioners to be appointed against
20% of successive substantive vacancies arising in the cadre of Sales Tax Officers (special provisions under the
Kerala Agricultural Income Tax and Sales Tax Services Rules). The Court framed the question thus: whether an
amendment brought to General Rules would take away rights of Petitioners for appointment? The Court held that
the amendment brought to general Rules was not repugnant to special Rules. Hence, there was no question of
taking away rights of candidates who were selected by Public Service Commission through the special rules. In this
case, the court recognised another limit to the maxim of generalia specialibus. The court has said that if the
language of the general provision is clear and unqualified, it would prevail over earlier special provisions, and
special provisions must give way to general provisions. Hence, if the language is clear and unqualified, the
subsequent general rule would prevail despite repugnancy. If the intention of the rule-making authority is to sweep
away all special rules and to establish a uniform pattern, the special rules ought to give way.
Inclusio Unius Exclusio Alterius94
The maxim means that inclusion of one excludes the other. Alterius is the genetive of a Latin word which means the
other of two, not another. The logic of the proposition and the force of the proposition, depends entirely on
establishing that there is only a choice between two named persons or objects; in such a case, it can be said that if
one of the two available is chosen, the other is excluded. But save in that special case, the maxim has no effect in
logic or in law.95 The rule of exclusion is merely an auxiliary rule of construction adopted for the purpose of
ascertaining the intention of the law-giver. It is neither conclusive nor of universal application and is to be applied
only when in the natural association of ideas, the contrast between what is provided and what is left out leads to an
Page 2 of 4
(e) Limits to Rule
inference that the latter was intended to be excluded; it may accordingly be held inapplicable if there exists a
plausible reason for not including what is left out.96
Lex Nihil Frustra Facit
It means that the law does nothing in vain. It is a fundamental legal principle, as well as a dictate of commonsense,
that the law will not itself attempt to do an act which would be vain.97 Also to be referred are lex nil facit frustra, lex
nil frustra jubet and tax nil frustrajubet.
Lex Non Cogit Ad Impossibilia
The doctrine of lex non cogit ad impossibilia or for that purpose the doctrine of impossibility applies in relation to
future transactions and has no application to completed transactions which may stand nullified as a result of any
retroactive enactment. The maxim aforesaid, or as it is also expressed impotentia excusat legem must be
understood in the sense that impotentia excuses where there is necessary or invisible disability to perform the
mandatory part of law or forbear the prohibited act.
In Industrial Finance Corporation of India Ltd v Cannanore Spinning and Weaving Mills Ltd,98 the question before
the court was whether there was frustration of a contract of guarantee in case of nationalisation of a mill. Holding in
the negative, the Court held that the principle of lex non cogit ad impossibilia also means that the law does not
compel a man to do that which he cannot possibly perform. There ought always thus to be an invincible disability to
perform the obligation and the same is akin to the Roman maxim nemo tenetur ad impossibile. It was further held
that there, thus, has to be an impossibility of performance of the obligation. Rights created under statute cannot
stand obliterated without cogent reasons and on mere frivolity.
Maxime Ita Dicta Quia Maxima Ejus Dignitas Et Certissima Auctoritas, Atque Quod Maxim Omnibus Probetur 99
The maxim is so called because its dignity is the greatest, and its authority the most certain, and also it is
universally approved by all.100
Nemo Allegans Turpitudinem Suam Audiendus Est
The maxim nemo allegans turpitudinem suam est audiendus applies where the transaction itself is based on fraud
committed by a party to the impugned transaction.101
Non Obligat Lex Nisi Promulgata
A law is not obligatory unless it be promulgated.
Nova Constitutio Futuris Formam Imponere Debet Non Praeteritis102
A new law ought to affect the future and not the past. This maxim is one of such obvious convenience and justice,
that it must always be adhered to in the construction of statutes, unless in cases where there is something on the
face of the enactment putting it beyond doubt that the legislature meant it to operate retrospectively.103 It is a
general rule that where a statute is passed altering the law, unless the language is expressly to the contrary, it is to
be taken as intended to apply to a state of facts coming into existence after the Act.104
Ut Res Magis Valeat Quam Pereat The observations of Broughman LC, in Langston v Langston,105 deserve
particular notice in this context:
There are two modes of reading an instrument where the one destroys and the other preserves, it is the rule of law,
and of equity, following the law in this respect (for it is rule of commonsense...) that you should rather lean towards
that construction which preserves, than towards that which destroys. Ut res magis valeat quam pereat is a rule of
common law and commonsense; and much the same principal ought surely to be adopted where the question is,
not between two rival constructions of the same words appearing in the same instrument, but where the question is
Page 3 of 4
(e) Limits to Rule
on so ready an instrument as that you may either take it verbally and literally, as it is, or with a somewhat large and
more liberal construction, and by so supplying words as to read it in the way in which you have every reason to
believe that the maker of it intended it should stand; and thus again, according to the rule ut res magis valeat quam
pereat, to supply, if you can safely and easily do it, that which he per incuriam omitted, and that which instead of
destroying preserves the instrument; which instead of putting an end to the instrument and defeating the intention of
the maker of it, tends, rather to keep alive and continue and give effect to that intention.
The court will strongly lean against any construction which tends to refute a statute to a futility. The provision of a
statute must be so construed as to make it effective and operative on the principle ut res majis valeat quam
pereat.106The rules for the construction of statutes are, observed Bowen LJ. in Curtis v Stovin,107very like those
which apply to the construction of other documents, especially as regards one crucial ruleviz, that, if possible, the
words of an Act of parliament must be construed so as to give a sensible meaning to them, so that the intentions of
the legislature may not be treated as vain or left to operate in the air.108
In CIT v Hindustan Bulk Barriers,109 the controversy before the Court was the period for which interest could be
levied under Section 234B of the Income Tax Act when the Settlement Commissioner passes an order under
Section 254D of the Act. Section 234B provided for the payment of interest on the levy of tax in case of delay.
Section 254D permitted the Settlement Commissioner to pass an order on re-assessment. The question before the
Court was whether interest would be leviable under Section 234 on an order under Section 254D. The Court held
that the interest levied under Section 234 was a special levy, and would not be attracted on orders passed under
Section 254D. In this regard, the Court observed:
A construction which reduces the statute to a futility has to be avoided. A statute or any enacting provision therein
must be so construed as to make it effective and operative on the principle expressed in maximut res magis valeat
quam pereati.e. a liberal construction should be put upon written instruments, so as to uphold them, if possible, and
carry into effect the intention of the parties.
In MP Singh v Honorary Chairman Bihar Legislative Council,110 the Court refused to accord a strict interpretation
to Rules 6 and 7 of the Bihar Legislative Council Members (Disqualification on Ground of Defection) Rules, 1994,
since the very object of the Constitution (Fifty Second Amendment) Act by which the X Schedule was added to the
Constitution would be defeated if the rules were so construed.
In this regard, the Court observed:
The same rule applies to constitution of a statute. A constitution is a living and organic thing which of all instruments
has the greatest claim to be construed ut res magis vleat quam pereat.111 Thus the rule of strict construction may
not be adhered to if thereby the plain intention of Parliament to combat crimes of a special nature is defeated. The
statutes are meant to be operative and not inept and nothing short of impossibility should allow a court to declare a
statute unworkable.112
See Table 2.4 for the meanings of Latin maxims which are less frequently used. Column 3 of the Table references
the cases in which the maxim has been cited by Indian Courts.
89 .KC Sonrexa v State of Uttar Pradesh AIR 1963 All 33 [LNIND 1961 ALL 108], (1963) 1 Cr LJ 38.
90 . (1860) 5 CPD 34, p 40; maxim not applied by Sulaiman J, in his dissenting judgment in the case of Subramanyam v
Muttuswami 1940 FCR 188, p 214-15.
92 . (2003) 10 SCC 361 [LNIND 2003 SC 189].
93 . (1998) 5 SCC 624.
94 . For a more detailed exposition of this maxim see Part II Chapter 4 supra.
Page 4 of 4
(e) Limits to Rule
95 .R v Palfrey [1970] 2 All ER 12, per Winn LJ.
96 .Chantalal Workers Co-op Tpt Society v State of Punjab AIR 1962 Punj 94, p 98, per Dua J; Parbhani Co-op Society
Ltd v RTA, Aurangabad [1960] 3 SCR 177 [LNIND 1960 SC 389], p 185, per Sarkar J: not applicable where language is
plain and the meaning is clear; 85 L Ed 58, p 62.
97 .Brooms Legal Maxims, tenth edn, p 169.
98 . (2002) 5 SCC 54 [LNIND 2002 SC 287].
99 . Co Litt 10-11.
100 . Ramanatha Iyer, Law Lexicon, p 799.
101 .Raja Ram v Daulat Ram AIR 1980 All 161.
102 . 2 Inst 292.
103 .Moon v Druden (1848) 2 Ex 22 , p 33, per Rolfe J; B Vansittari v Taylor (1855) 24 LJQB 198-99;
Jacksons v Wooley (1853) 27 LJQB 448-49; Gloucester Union v Woolwich Union [1917] 2 KB 374.
104 .R v Ipwich Union (1877) 2 QBD 269-70, per Cockburn CJ.
105 .[1834] 2 Cl& F 194, p 243.
106 .Commr of Wealth-tax, Patna v Jagadish Prasad Choudhary AIR 1996 Pat 58; Andhra Bank v B
Satyanarayana (2004) 2 SCC 657 [LNIND 2004 SC 203].
107 . [1889] 22 QBD 513, 517; Lal Ram Singh v Dry Commr of Partabgarh 50 IA 265, 273.
108 . Craies, Statute Law, fifth edn, p 67; Re Florence Land Co [1878] 10 Ch D 544 ; AG v Beauchamp [1920]
1 KB 605 ; Dhoom Singh v PC Sethi AIR 1975 SC 102, (1975) 1 SCC 597.
109 . (2003) 3 SCC 57.
110 . (2004) 8 SCC 747 [LNIND 2004 SC 1100].
111 . Re CP and Berar Sales of Motor Spirit and Lubri, Taxation Act 1939 FCR 18, p 37, AIR 1939 FC 1, 1939
MWN 25; CTS v Mangal Sen AIR 1975 SC 1106 [LNIND 1975 SC 140]; Dhoom Singh v PC Sethi AIR 1975 SC 1012
[LNIND 1975 SC 75], (1975) 1 SCC 597 [LNIND 1975 SC 75]; Sailesh Kumar Singh v High Court of Judicature of Patna
(1995) 2 BJLR 754 (Pat); State of Madhya Pradesh v Chahal & Co, New Delhi (1995) MPLJ 885, p 890.
112 .Balram Kumawat v Union of India (2003) 7 SCC 628 [LNIND 2003 SC 714].
End of Document
Conclusion
NS Bindra
Conclusion
The Chapter shows that even though there is a large repository of Latin maxims which could be used to aid
interpretation; Indian Courts have a select list of preferred maxims to which they refer to and rely upon in
undertaking their interpretational duties.
Table 2.4 Less Frequently used Latin Maxims and their Usage by Indian Courts
S. Maxim Meaning of Maxim Significant cases that refer

No to the Maxim
1. A Pactis Privatorum Publico Private agreement cannot (Mannalal Khetan v Kedar

Juri Non Derogatur alter the general law. Nath Khetan, (1977) 2 SCC
424 [LNIND 1976 SC 450]
(Sudha Suri v Union of India,

2002 (1) PLR 453
(Secretary to Government,
Revenue v Sri
Swamyayyappa Co-operative
Housing Societies Ltd., 2003
(6) ALD 225
(India Financial Assocation v

MA Unneerikutty, (2006) 6
SCC 351 [LNIND 2006 SC
541]
(Centre for Public Interest

Litigation v Union of India,
139 (2007) DLT 289
(Geetarani Mohanty v State

of Orissa, CLT (2008)
Supplement 839
(Union of India v AK Pandey,

(2009) 10 SCC 552 [LNIND
2009 SC 1839]
2. A Verbis Legis Non Est From the words of the law (Priti Kona Sengupta v State
Recedendum there should not be any of Assam, AIR1970 Gau 124
departure.
(Assam Judicial Service
Page 2 of 11
Conclusion
Association v Chief Justice,

(1986) 2 GLR 330
(Jai Prakash Singh v

Radheyshyam Singh, 1987
(11) ACR 381
(KishanSwarup v R.P.
Pandhi, 1987 (11) ACR 483
(Ram Vilas Upedhya v

Chandra Shekhar, 1992 2
AWC 760 (All)
(Gauhati High Court

Employees Association v
Gauhati High Court, 2006 (2)
GLT 749
(BaladevSahu v State of
Orissa,(2009) 22 VST 386
(Orissa)
(Eureka Forbes Limited v

Allahabad Bank, (2010) 6
SCC 193 [LNINDORD 2010
SC 198]
(Narmada Bachaoandolan v
State of Madhya Pradesh,
(2011) 7 SCC 639 [LNIND
2011 SC 518]
(SheetalSuri v Commissioner
of Sales Tax, Orissa,(2012)
51 VST 358 (Orissa)
(Rohitash Kumar v Om
Prakash Sharma, AIR 2013
SC 30 [LNIND 2012 SC 705]
3. Absoluta Sententia An absolute judgment needs (Rustam v Emperor, (1910) 6

Expositore Non Indiget no expositor / When you have Indcas 101
plain words capable of only
one interpretation, no (Piara Singh v Mula Mal,
explanation of them is AIR1924 Lah 395
required.
(LalaMahadeo Prasad v
Jagannath Kuar, AIR1940
Oudh 67
(Dharamchand Agarwal v
Emperor, AIR1944 Nag 364
(MadanGopal v Ramesh
Chandra, AIR 1952 All 81
[LNIND 1951 ALL 101]
Page 3 of 11
Conclusion
(Martab Ali v Union of India,

AIR 1954 Bom 297 [LNIND
1953 BOM 21]
(In Re: E.M. Chacko, (1954)

67 LW 1027
(State of Manipur v
Nongthombam Amubi Singh,
AIR 1957 Manipur 1
(New Shorrock Spinning and

Manufacturing Co. Ltd. v N.U.
Raval, [1959] 37 ITR 41
[LNIND 1958 BOM 159]
(Bom)
(Oriental Metal Pressing

Works Pvt. Ltd. v Bhaskar
Kashinath Thakoor, AIR1960
Bom 167
(BhikhanBobla v State of
Punjab, AIR 1963 P&H 255
4. Ad Proximum Antecedens The antecedent bears relation (Dr. K. Subbaiah v C.N.

Fiat Relatio Nisi Impediatur to what follows next, unless it Krishnamacharlu, 2011 (4)
Sententia destroys the meaning of the ALD 167 [LNIND 2010 AP
sentence. 858]
5. Ad Ea Quae Frequentius Laws are adapted to those Has not been cited by Indian
Accidunt Jura Adaptature cases which occur more Courts.
frequently.
6. Argumentum Ab Impossibili An argument from an Has not been cited by Indian

Plurinum Valet in Lege impossibility is good in law. Courts.
7. Argumentum Ab Communiter An argument drawn from Has not been cited by Indian
Acidentibus in Jure Frequens common understanding of a Courts.
Est thing is common in law.
8. BoniJudicisEst Jus Dicere, It is the function of the judge (Hatimbhai Hassanally v

Non Jus Dare / Judicis Est to declare the law and not to Framroz Eduljee Dinshaw,
Jus Dicere Non Dare make it AIR1927 Bom 278
(Union of India v Azadi

Bachao Andolan, (2003) 263
ITR 706 [LNIND 2003 SC
853] (SC)
(Assistant Commissioner v
Velliappa Textiles Ltd, (2003)
11 SCC 405 [LNIND 2003 SC
794]
(Kamal Kishore v State of

Rajasthan, RLW 2008 (1) Raj
192
9. Communis Error Facit Jus Common error repeated (M. Subbarayudu v State -
Page 4 of 11
Conclusion
many times makes law AIR 1955 AP 87 [LNIND 1954

AP 74]
(Dulichand Khirwal v State of

Bihar, AIR1958 Pat 366
(Public Bank Ltd., Pudukkad

v Vilasini Amma, 1962 KLJ
446
(State of Gujarat v
Gordhandas Keshavji
Gandhi, AIR1962 Guj 128
(Raman Nadar Viswanathan

Nadar v Snehappoo
Rasalamma, (1969) 3 SCC
42 [LNIND 1969 SC 348]
(Rugmini Ammal v
Gopalakrishna Pillai, 1977 (1)
ILR 568 (Ker)
(P. Kasilingam v P.S.G.

College of Technology, AIR
1995 SC 1395 [LNIND 1995
SC 418]
(Binani Industries Limited v

Assistant Commissioner,
2006 (2) KCCR 708 [LNIND
2005 KANT 735]
(Maya Rani Ghosh v State of

Tripura, AIR2007 Gau 76
(Jaya Saha v State of Tripura,

2013 (1) GLT 218
10. Contra Legam Facit, Quid He does contrary to the law Has not been cited by Indian
Facit Quod Lex Prohibet In who does what the law Courts.
Fraudem Vero Qui Salvis prohibits; he acts in fraud of
Verbis Legis Sententiam Ejus the law, who, the letter of the
Circumvenit law being inviolate, uses the
law contrary to its intention
11. CopulatioVerborum Indicat The coupling of words (JonmenjoyCoondoo v

Acceptationem in Eodem together shows that they are George Alder Watson, (1884)
Sensu to be understood in the same L.R. 11 I.A. 94
sense
(Shiromani Sugar Mills Ltd v
Governor-General in Council,
[1945] 13 ITR 480 (All)
(Benares Bank Ltd. v

Sashibhushan Misra,
AIR1948 Pat 398
(Kotak Securities Limited v

Page 5 of 11
Conclusion
Deputy Commissioner, [2012]

14 ITR 495 (Mum)
(Income Tax Officer v Right

Florists, [2013] 143 ITD 445
(Kol)
12. Cui Jurisdictio Data Est, Ea To whomsoever a jurisdiction (MalchandSurana v CIT,

Quoque Concessa is given, those things are also [1971] 82 ITR 314 (Cal)
Essevidentur, Sine Quibus supposed to be granted,
Jurisdictio Explicari Non without which the jurisdiction (Commissioner of Income
Potuit cannot be exercised. Tax v S. Kewalchand Kathod,
[1989] 29 ITD 585 (Mad)
(Krishnankutty Nair v
Accommodation Controller,
1996 (2) KLJ 84
(Jamal Uddin Ahmad v Abu

Saleh Najmuddin, (2003) 4
260]
(Anant Ram Prem Prakash v

State of UP, [2006] 143 STC
542 (All)
(Concept Creations VPO v

Addl. CIT, [2009] 120 ITD 19
(Delhi)
(G.K. Granites Ltd. v

Vellavoor Grama
Panchayath, 2012 (3) KLJ
867
13. Cuilibet Licet Renuntiar Juri To whomsoever a jurisdiction (S.K.D. Lakshmanan

Prose Introducto is given, those things are also Fireworks Industries v K.V.
supposed to be granted, Sivarama Krishnan, 1995 Crilj
without which the jurisdiction 1384
cannot be exercised.
14. Ex Anticedentibus Et The best interpretation is Has not been cited by Indian
Consequentibus Fit Optima made from the context Courts.
Interpretatio
15. Exceptio Probat Regulam do An exception shows the rule Has not been cited by Indian
Rebus Non Exceptis concerning things not Courts.
excepted
16. Exception Quoque Regulom Exception also declares the Has not been cited by Indian
Declarat rule Courts.
17. Extra Territorium Jus Dicenti The maxim means that the (Radheyshiam v Firm Sawai
Impune Non Paretur decision of one adjudicating Modi Basdeo Prasad, AIR
beyond his territory cannot be 1953 Raj 204 [LNIND 1953
obeyed with impunity / He RAJ 213]
who exercises judicial
authority beyond his proper (Bengal Immunity Co Ltd v
limits cannot be obeyed with State of Bihar, AIR 1955 SC
Page 6 of 11
Conclusion
safety. 661 [LNIND 1955 SC 122]
(Brajmohan Bose
Benimadhav v Kishorilal
Kishanlal, AIR 1955 MP 1
(Laxmichand v Tipuri, AIR

1956 Raj 81 [LNIND 1955
RAJ 192]
(Raj Rajendra Sardar Maloji

Narsing Rao v Shankar
Saran, AIR 1958 All 775
[LNIND 1957 ALL 157]
(State of Bihar v
Bhabapritananda Ojha, AIR
1959 SC 1073 [LNIND 1959
SC 52]
(Firm Gauri Lal Gurdev Das v

Jugal Kishore Sharma, AIR
1959 P&H 265
(Associated Hotels of India v

R.B. Jodha Mal Kuthalia, AIR
1961 SC 156 [LNIND 1960
SC 179]
(Kitply Industries v California

Pacific Trading Corporation,
[2010] 103 SCL 250 (Gau)
2009
(State of Maharashtra v
Murarao Malojirao Ghorpade,
2009 (6) Mhlj 788 [LNIND
2009 BOM 941]
18. Generalia Verba Sunt General words are to be Has not been cited by Indian
Generalita Intelligenda understood generally Courts.
19. In Civile Est Nisi Tota Lege It is improper, unless the Has not been cited by Indian
Perspecta Una Aliqua whole law has been Courts.
Particula Ejus Proposita examined, to give judgment
Judicare Vel Respondere or advice upon a view of a
single clause of it/
20. Impotentis Excusat Legem Impossibility may be created (BalMukund Agrawal v

by a change of the law. District Judge, 1977 AWC
225 All
21. Interpretare Et Concordare An interpretation has to be (Pollisetti Pullamma v Kalluri

Leges Legibus, Est Optimus made in consonance with Kameswaramma, AIR 1991
Interpretandi Modus legislative purpose. To SC 604 [LNIND 1990 SC
interpret in such a way as to 628]
harmonise laws with laws is
the best mode of
interpretation.
Page 7 of 11
Conclusion
22. Hoc Quidem Perquam Durum However hard may be the Has not been cited by Indian
Es Sed Ita Lex Scripta Est law, yet it should be given Courts.
effect to.
23. In Pari Delicto Potior Est Where both parties are (E.A. Janusait v N.
Conditio Possidentis equally in the wrong, the Ramaswami Naidu, AIR1923
position of the possessor is Mad 626
more favourable
(Misran v Vilayat Husain,
(1923) ILR 45 All 396
(Onkarsingh v Firm
Shrikishan Radhakishan,
AIR1941 Nag 174
(AppanaRadha Sri Krishna

Rao v V.K.M. Kodandarama
Chetti, AIR 1960 AP 190
[LNIND 1959 AP 147]
(Padmavathi Ammal v
Muthuswami Pillai, (1964) ILR
2 Mad 483
(N.V.P. Pandian v M.M. Roy,

AIR1979 Mad 42
(Gopalakrishnan v
Srinivasan, 2010 (2) KLT 216
[LNIND 2010 KER 148]
(Madan Singh v Surajkanwar,

RLW 2011 (4) Raj 3475
(S.K. Anwerjan v C.
Leelavathi, (2011) 2 MLJ 146
[LNIND 2008 MAD 2411]
(SukhLal v Ashok Kumar

Raghuvanshi, 2013 4 AWC
3426 All
24. Judex Est Lex Loquens The judge is the speaking law Has not been cited by Indian
Courts.
25. Jura Naturae Sunt The laws of nature are (Ponmozhi v Commissioner,
Immutabilis unchangeable / Principles of 2010 (2) CTC 734 [LNIND
natural justice cannot be 2009 MAD 4439]
dispensed with and should be
adhered to. (S. Kasimayan v Inspector of
Police, MANU/TN/3476/2010
(Special Officer v Marimuthu,

2011 (3) CTC 729 [LNIND
2011 MAD 1332]
(Veluchamy v Venkadasamy,
(2013) 7 MLJ 364 [LNIND
2013 MAD 6013]
Page 8 of 11
Conclusion
(S. Jayaraman v Corporation

of Madras, (2012) 7 MLJ 649
(Head Master v Rasulkhan,
2012-5-LW 609
( J. Bhakthavathsala Rao v
Corporation of Chennai,
MANU/TN/1034/2013
(Indian Bank Circle Office v

VK Balaji, 2013-4-LW39
26. Leges Posteriores Priores Latter laws repeal earlier laws (Municipal Committee v Mohd
Contrarias Abrogant inconsistent therewith Mushtaq, AIR 1960 P&H 18
(Life Insurance Corporation of

India v DJ Bahadur, (1981) 1
442]
(Charity Commissioner v
Shantidevi Lalchand
Chhaganlal Foundation Trust,
AIR 1990 Bom 189 [LNIND
1989 BOM 357]
(Kothari Industrial
Corporation Ltd v Lazor
Detergents Private Ltd.,
[1994] 81 Comp Cas 699
(Mad)
(Selvaraj v Viswanathan,
1999 Crilj 4766 [LNIND 1999
MAD 418]
(Kedar Nath Yadav v State of

UP, 2005 6 AWC 5695 All
(Bihar Agriculture Marketing

Board Employees Association
v State of Bihar, 2008 (56)
BLJR 1913
(Karamjit Singh v State of

Punjab, MANU/PH/2352/2009
(Shamsher v State of U.P.,

MANU/UP/0935/2010
(Seema Begaum v State of

Karnataka, ILR 2013 Kar
1659
27. Nova constitutio futuris A new law ought to affect the (Jada Ram v Faizullah Khan,
formam imponere debet non future and not the past. AIR1934 Pesh 30
praeteritis
Page 9 of 11
Conclusion
28. Omne Majus Continet in Se Greater contains the less (TadepalliSubba Rao Garu v
Minus Balusu Buchi Sarvarayudu,
(1924) ILR 47 Mad 7
(DayanidhiRath v BS
Mohanty, AIR1955 Ori 33
(Sankarsana Ramanuja Das

v State of Orissa, AIR1957
Ori 96
(State of Punjab v Kehar

Singh, AIR 1959 P&H 8
(Ram Nath v UT of
Chandigarh, AIR 1975 P&H
138
(Delhi Cloth & General Mills

Co. Ltd. v Municipal Council,
AIR 1978 Raj 177 [LNIND
1978 RAJ 27]
(Hari Ram v State of

Haryana, AIR 1982 P&H 108
(DevarajGoyal v State, 1985

LW (Crl) 353
(Food Corporation of India v

Bhartiya Khadya Nigam, 2008
(2) JKJ 484
29. Optaima Est Legum Interpres Custom is the best interpreter Has not been cited by Indian
Consuetudo of law Courts.
30. Privatorum Conventio Juri A private agreement does not (Bhagirathi v State, AIR 1955
Publico Non Derogat derogate from the public right All 113 [LNIND 1954 ALL
188]
(Sastra University v Union of

India, MANU/TN/2028/2008
31. Quando Aliquid Prohibetur, When anything is prohibited, Has not been cited by Indian
Prohibetur Et Omne Perquod everything by which it is Courts.
Devinetur Ad Illud reached is also prohibited /
That which cannot be done
directly cannot be done
indirectly.
32. Quando Lex Aliquid Concedit Whoever grants a thing is Has not been cited by Indian
Concedere Videtur Et Illud deemed also to grant that Courts.
Sine Quo Res Ipsa Esse Non without which the grant itself
Potest would be of no effect.
33. Salus populi est Suprema Lex Welfare of the people is the (Kamarbai v Badrinarayan,
highest law. AIR1977 Bom 228
(D.K. Basu v State of West

Page 10 of 11
Conclusion
Bengal, (1997) 1 SCC 416

[LNIND 1996 SC 2177]
(Kuldeep Book Centre v State

of Jammu and Kashmir, AIR
1997 J&K 28
(Viswanatha Reddy v
Government of Andhra
Pradesh, 2002 (4) ALD 161
(Nalgonda District Oil Millers

Association v Government of
India, 2002 (3) ALD 538
[LNIND 2002 AP 324]
(HiraTikkoo v UT of
Chandigarh, (2004) 6 SCC
765 [LNIND 2004 SC 481]
(S. Bagavathy v State of

Tamil Nadu, 2007 (2) CTC
207 [LNIND 2007 MAD 735]
(Prithipal Singh v State of

Punjab, (2012) 1 SCC 10
[LNIND 2011 SC 992]
(AvishekGoenka v Union of
India, (2012) 5 SCC 275
[LNIND 2012 SC 268]
(DRG Grate Udhyog v State

of MP, MANU/GT/0039/2013
34. Uti Loquitur Vulgus In dealing with matters (Currimbhoy Ebrahim v

relating to the general public, Municipal Commissioner of
statutes are presumed to use Bombay, 4 Indcas 275
words in their popular sense.
(Emperor v Manilal Mangalji,
1915 (17) BOMLR 1080
[LNIND 1915 BOM 147]
(Yeshvantarao Balwantrao
Chavan v K.T. Mangalmurti,
AIR1958 Bom 397
(Commissioner of Income
Tax v Chugandas & Co.,
AIR1960 Bom 109
(Jose Joaquimsebastino
Rodrigues v Union of India
AIR1967 Goa 169
(RN Mishra v Burn and Co.

Ltd. Refractory and Ceramic
Works, ILR [1968] MP 852
Page 11 of 11
Conclusion
[LNIND 1965 MP 169]
(K. Parameshwaran v ITO,

[1982] 2 ITD 371 (Mad)
(ITO v Surjan Singh, [1983] 3

ITD 438 (Delhi)
(Godrej Beverages and

Foods v Ramashankar
Yadav, 2009 (3) MPLJ 76
(ITO v Computer Force,

MANU/IB/0538/2010
35. VerbaChartarumFortiusAccipi Words of deeds are to be (Lakshmi Insurance Co. Ltd. v

untur Contra Proferentem understood most strongly Bibi Padma Wati, AIR 1961
against the person making P&H 253
use of them.
(Gamma Investments v
National Insurance Company
Ltd., MANU/DE/1291/2009
(Sagrika Singh v Union of

India, MANU/DE/3337/2011
(Vijaya Bank v Suvasini S

Shetty, MANU/KA/0670/2012
(RashtriyaIspat Nigam Ltd. v

Dewan Chand Ram Saran,
(2012) 5 SCC 306 [LNIND
2012 SC 247]
36. Ut res valeat potius quam The court would avoid that (CIT v Mahaliram Ramjidas,
pereat construction which would fail 1940 (42) BOMLR 997
to relieve the manifest
purpose of the legislation (DaniJha v Bishwanath
Thakur, 1996 (1) BLJR 724
End of Document
Introduction
NS Bindra
External Aids to Interpretation
Introduction
External aids are those processes or outputs which do not form part of the statute. There are two kinds of external
aids, one which are generated as part of the law making process; and the other which are independent of the
process. Parliamentary Debates and notes on clauses are examples of the first kind of aids; dictionaries and
encyclopaedias exemplify the second kind. External aids of the first kind have an inextricable connection with the
mischief rule of interpretation as they help in identifying what was the nature of mischief that the statute was aiming
to remedy. The second kind of aids are those which provide general information on the meaning of words and state
of things, which help in constructing the popular context within which the statute has to operate.
End of Document
Types of External Aids
NS Bindra
External aids are the notings in the files of various officials, dictionaries, either Acts, history of legislation,
parliamentary proceedings, state of law as it existed when the Act was passed, the mischief sought to be
suppressed and the remedy sought to be advanced by the Act.1 Even a law commission report is regarded as an
external aid.2 Recourse to extrinsic aids in interpreting a statutory provision would be justified only within well-
recognised limits; primarily, the effect of the statutory provision must be judged on a fair and reasonable
construction of the words used by the statute itself.3 In Shashikant Laxman Kale v Union of India,4 the Supreme
Court has cautioned that a catch-phrase possibly used as a populist measure to describe some provisions in the
finance bill in the explanatory memorandum, while introducing the bill in the Parliament, can neither be determine
nor camouflage the true object of the legislation.
The House of Lords has incisively considered the application, use, and permissibility of applying various external
aids in Pepper v Hart.5 The following observations are significant:
1. The absolute prohibition against any reference to the Parliamentary record as an extrinsic aid to statutory
interpretation ought to be abolished for the following main reasons...It is irrational for the Courts to maintain an
absolute rule depriving themselves of access to potential relevant evidence or information for this purpose.
2. The history of a statute, including the Parliamentary debates, may be relevant (i) to confirm the meaning of a
provision as conveyed by the text, its context and purpose; (ii) to determine the meaning where the provision is
ambiguous or obscure; or (iii) to determine the meaning where the ordinary meaning is manifestly absurd or
unreasonable.
3. The Parliamentary record may be of real assistance to the Court (a) by showing that Parliament has considered
and suggested an answer to the issue of interpretation before the Court, (b) by showing the object and purpose of
the legislation and the mischief which the Act was designed to remedy, (c) by explaining the reason for some
obscurity or ambiguity in the wording of the legislation and (d) by providing direct evidence of the origins,
background and historical context of the legislation.
4. Where a statutory provision has been enacted following an authoritative ministerial statement as to the
understanding by the Executive of its meaning and effect, such a statement may provide important evidence about
the object and purpose of the provision and the intention of Parliament in agreeing to its enactment, and may create
reasonable expectations among Members of Parliament and those affected by the legislation.
5. There is no basis in principle or logic for the Courts to be willing to have regard to extrinsic aids contained in
white papers, reports of official committees, and the travaux preparatoires to international treaties, while rigidly
excluding any recourse to Parliamentary debates, except for “special” categories of legislation. The reports of
Parliamentary debates, and especially of authoritative statements by Ministers or other Members of Parliament
responsible for the introduction of legislation.
Page 2 of 2
1 .Doypack Systems Pvt Ltd v Union of India AIR 1988 SC 782 [LNIND 1988 SC 589], (1988) (1) JT 304 [LNIND 1988
SC 589] (SC).
2 .Mithilesh Kumari v Prem Behari Khare AIR 1989 SC 1247 [LNIND 1989 SC 96], (1989) (1) JT 275 [LNIND 1989 SC
96] (SC), (1989) 1 Ker LJ 424, (1989) MP LJ 156 [LNIND 1989 SC 96], (1989) 2 MLJ 1 [LNIND 1989 SC 96] (SC),
(1989) 1 APLJ 31 (SC), (1989) 76 CTR 27, (1989) 40 ELT 267 [LNIND 1989 SC 96], [1989] 177 ITR 97 [LNIND 1989
SC 96], (1988) 2 Cur CC 33, (1989) 2 SCC 95 [LNIND 1989 SC 96], (1989) Mah LJ 210 [LNIND 1989 SC 96], (1989)
92 Taxation 23, (1989) 1 Civ LJ 635, (1989) 2 Land LR 97, (1989) 103 Mad LW 430 [LNIND 1989 SC 96].
3 .State of Punjab v Sodhi Sukhdeo Singh AIR 1961 SC 493 [LNIND 1960 SC 270], p 501; Abdul Kalam v Govt of Tamil
Nadu (1992) 1 Mad LJ 31; PK Unni v Nirmala Industries AIR 1990 SC 933 [LNIND 1990 SC 98], (1990) (1) JT 423,
(1990) 1 Mad LJ 36 (SC); (1987) 2 Mad LJ 3 reversed; Thangammal Dhanalakshmi AIR 1981 Mad 254 [LNIND 1978
MAD 211]; Mathuradas v SD Munshao AIR 1981 SC 53 overruled.
4 . AIR 1990 SC 2114 [LNIND 1990 SC 362], (1990) Tax LR 877, (1990) (3) JT 267 (SC).
5 . [1993] 1 All ER 42; cited in East U.P. Sugar Mills Association v State of U.P. 2012 (3) AD J16.
End of Document
Reports of Commissions and Committees
NS Bindra
The reports of the committee which preceded the enactment of a legislation, report of joint parliamentary
committee, report of a commission set up for collecting information leading to the enactment, are permissible
external aids to construction.6 In some cases, the courts have relied upon the law commissions reports relating to
the Act which they were called upon to construe.7 Whilst in other cases they hold that the Report of the Indian law
commissioners may be valuable as a matter of history,8 but it cannot be a legitimate guide for the construction of a
section of the statute. In Mobarak Ali v State of Bombay,9 the Court held that the construction of provisions, prior to
resort to law commission reports, ought to be based on the meaning of the words used, to be gathered according to
the ordinary rules of interpretation, and in consonance with the generally accepted principles of jurisprudence
In Hatimbhai v Framroy,10 the Court held that a reference to the report of the select committee preceding a
legislation on that subject was not permissible,11 nor was a reference to the dispatch of the secretary of state,
which accompanied the Letters Patent of the Bombay High Court, 1862, nor to the report of the commissioners who
were appointed in 1853 to consider the question of the amalgamation of the Supreme Court, and the companys
courts and the draft rules which they prepared.
In Bhagwati Sahakari Sakhar Kharkhana v Changule12 the Court was concerned with the interpretation of Order
XLI of the CPC. Sub-rule (3) that was inserted to Rule 1 by the Civil Procedure Code (Amendment) Act, 1976,
mandated that in case of an appeal against a money decree, the appellant ought to deposit the amount disputed in
the appeal or furnish security as the Court may think viable, and within such time as may be allowed by the Court.
The question before the Court was whether the deposit of the amount or security before the filing of appeal against
money decree was a condition precedent for valid presentation of the appeal or not. It was argued that a bare
reading of the report of the Joint Committee clearly shows that the Intention of the Parliament was that it was not a
condition prcedent. The Bombay High Court agreed with this contention, and observed that resort to Joint
Committee reports which preceded the enactment of the legislation will be permissible aids of construction only if
the language of the enactment is ambiguous.
In Sarva Shramik Sangh v Indian Smelting and Refining Co,13 the Supreme Court opined that the meaning and
intention of the legislature has to be ascertained not only from the language in which it is clothed but also by
considering its nature, design and consequences. Reports of the commissions or inquiry committee preceding the
enactment of a Bill have always been viewed as providing evidence of historical facts or of surrounding
circumstances or the evil intended to be remedied. In interpreting the scope of unfair labour practices under the
Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971, the court relied on
the fact that the Committee on Unfair Labour Practices, which preceded the impugned legislation selected only a
few unfair labour practicesso as not to cast the net of unfair labour practices too wide.
In Badrilal v Sitabai,14 the relevant part of Section 12 (1)(f) of the Madhya Pradesh Accommodation Control Act,
1961, read as continuing or starting his business or that of any of his major sons or unmarried daughters. The
question before the Court was whether a tenant could be evicted if the landlord needed the land to continue or start
a business for any member of his family. The Select Committee had opined that the provision of requiring
accommodation for starting a business for any member of his family was likely to be misused by the landlord and
hence, it thought it fit to restrict the provision to major sons and unmarried daughters of the landlord. Relying on this
opinion of the Select Committee, the Court held that the legislative intent behind the provision was not to allow the
Page 2 of 4
landlord to evict a tenant to start a business for any member of the family. Hence, the Court decided against the
landlord.
White Paper
When there is no ambiguity in a statute or the schedule annexed thereto which would justify an admission of
extraneous evidence, the white paper appertaining to the subject matter of the statute or the schedule is not
admissible in evidence.15 Craies writes:16
It is now generally agreed that reference may be made to reports on the effect and defects of previous statutes in
parimateria.
Crawford writes:17
A number of cases, however, make a distinction between legislative debates and the reports of Legislative
Committees and it must be admitted that the latter undoubtedly do possess a more reliable or satisfactory source of
assistance.
In Re the Central Provisions and Berar Act 14 of 1938,18 Gwyer CJ. considered the proposals for Indian
constitutional reform, commonly known as the white paper (Cmd 4268, 1933), and the report of the joint select
committee19 as historical facts, and observed that their relation to the Government of India Act, 1935, was a matter
of common knowledge. Hence, he held that the court was entitled to refer to them. Jayakar J. considered it
permissible to refer to them as the same formed a part of the history of the legislation.20 However, Sulaiman J.
doubted the legitimacy to refer to them.21
In Re Levy of Estate Duty,22 the report of the Federal Finance Committee of 1932 and the white paper on
constitutional reforms were referred to in arguments, and were noticed in the opinion of the majority, read by Spens
CJ. In Gopalan, attention of the Supreme Court of India was drawn to the debates and reports of the drafting
committee of the constituent assembly in respect of the wording of clause 15 (the basis for Article 21 of the
Constitution).23 Kania CJ. opined that the report may be read not to control the meaning of the article, but may be
seen in case of ambiguity.24
In Haldiram Bhujiawala v Anand Kumar Deepak Kumar,25 the Supreme Court held that there was considerable
ambiguity in Section 69 (2) of the Partnership Act, 1932, as to what was meant by the words arising out of a
contract. This controversy arose because neither the provision said whether the contract postulated in Section 69
(2) was one entered into by the firm with the defendant, or with somebody else who is not a defendant, nor did it
say whether it was a contract entered into with the defendant in business or unconnected with business. Due to this
ambiguity, the Court held that it was permissible to look into the Report of the Special Committee on the Partnership
Act, 1932 for the purpose of construing Section 69 (2) since the Report provided the justification for the passage of
the Act. Parts 16-19 and 23 of the said report and provisions of the English Acts, namely Sections 7 and 8 of the
Registration of Business Names Act, 1916, and the Business Names Act, 1985, make it clear that the purpose
behind Section 69 (2) was to impose a disability on the unregistered firm or its partners to enforce rights arising out
of contracts entered into by the plaintiff with the third-party defendants in the course of the firms business
transactions.
In Novartis AG v Union of India,26 The Court had to consider the constitutional validity of the amendment made to
Section 3 (d) of the Indian Patent Act, 1970, which had been enacted to prevent ever-greening of patents. Another
argument raised by the petitioner was that the final Amending Act of 2005 was significantly different from the
Ordinance of 2004. The Court relied on the Parliamentary debate on the Ordinance of 2004, and observed that
there was a wide spread fear in the mind of the members of the House that if Section 3 (d) as shown in the
Ordinance was brought into existence, the common man would be denied access to life saving drugs, and that
there was every possibility of ever-greening. The court gauged the legislative intent behind the Amendment to be
prevention of ever-greening, and consequently upheld the impugned provision as constitutionally valid.
Page 3 of 4
6 .Himachal Road Tpt Corpn v Sushila Devi AIR 1986 HP 78 [LNIND 1984 HP 63].
7 .Mithilesh Kumari v Prem Behari Khare AIR 1989 SC 1247 [LNIND 1989 SC 96]; Ratanlal Bansilal v Kishorilal Goenka
AIR 1993 Cal 144 [LNIND 1992 CAL 349]; Indian Chamber of Commerce v Commr of Income-tax AIR 1976 SC 348
[LNIND 1975 SC 346], [1975] 101 ITR 796 [LNIND 1975 SC 346]; Addl Commr, Income-tax v Surat Art Silk
Manufacturers Assn AIR 1980 SC 387 [LNIND 1979 SC 459], [1980] 121 ITR 1 [LNIND 1979 SC 459]; KP Verghese v
ITO AIR 1981 SC 1922 [LNIND 1981 SC 373], [1981] 131 ITR 597 [LNIND 1981 SC 373]; Modeen Kutty Haji v
Kunhikoya AIR 1987 Ker 184 [LNIND 1987 KER 132], (1987) Ker LJ 492, (1987) 1 Ker LT 492 [LNIND 1986 KER 440],
(1987) 2 Rec Cr R 485, (1987) ILR 2 Ker 123, 1987 APLJ 237 (Cr); Joginder Singh v State of Punjab (1979) 1 SCC
345; Santa Singh v State of Punjab AIR 1976 SC 2386 [LNIND 1976 SC 268]; Balchand v State of Madhya Pradesh
AIR 1977 SC 366 [LNIND 1976 SC 425].
8 .Ashok Leyland v State of Tamilnadu (2004) 3 SCC 1 [LNIND 2004 SC 1556]: the court considered legislative history in
terms of a law commission report; Deepal Girishbhai Soni v United India Insurance Co Ltd (2004) 5 SCC 385 [LNIND
2004 SC 358]: court considered the role of the 85th Report of the Law Commission and earlier statutes in the
enactment of the Motor Vehicles Act 1980.
9 . AIR 1957 SC 857 [LNIND 1957 SC 81], p 871; State of Bihar v Mhd Ismail AIR 1966 Ori 1 [LNIND 1965 ORI 26], p 5
per UN Sinha J; Raj Kumar Behai v Food Corpn of India AIR 1990 Raj 64; relying on Mobarik Ali Ahmed v State of
Bombay AIR 1957 SC 857 [LNIND 1957 SC 81].
10 . AIR 1927 Bom 278, p 296, (1927) ILR 51 Bom 516.
11 .Dina Nath v Raja Sati AIR 1923 Cal 74, 77; Mahalakshmi v Sharangini (1942) ILR 1 Cal 499, AIR 1941 Cal 673, p 675;
Sarat Sundari Barmani v Uma Prasad Roy Chowdhury (1904) ILR 31 Cal 628, 640; Thiraj v Emperor (1930) ILR 11 Lah
55, p 65, per Bhide J; Mst Tamijannessa v Puran Chandra Chakravarti AIR 1927 Cal 821; Gurdial Singh v Central
Board, Amritsar (1928) ILR 9 Lah 609, p 699; Ashutosh v Watson AIR 1927 Cal 149, p 153, (1926) ILR 53 Cal 929,;
Madho Singh v State of Rajasthan AIR 1954 Raj 198; State of Maharashtra v Dattatraya Balwant Upadhyaya (1976)
Mah LJ 550; see also Kamalammal v Krishnan NAIR 88 LW 308: where report was looked into.
12 . AIR 2003 Bom 185 [LNIND 2002 BOM 1050].
13 . (2003) 10 SCC 455 [LNIND 2003 SC 907].
14 . AIR 2011 MP 181 [LNIND 2011 MP 210]
15 .Katikiro of Buganda v Attorney-General [1960] 3 All ER 849, pp 855-65 (PC).
16 . Craies, Statute Law, fourth edn, p 123.
18 . 1939 FCR 18, p 46.
19 . HL 6 & HC 5, 1934.
20 . 1939 FCR 18.
21 .Ibid p 77.
22 . 1944 FCR 317, p 325.
23 . AIR 1950 SC 27 [LNIND 1950 SC 22], p 38, [1950] SCR 88 [LNIND 1950 SC 22], pp 110-11.
24 . But compare the rigid British canon (not followed in the United States or on the continent) that trabauxpreparatories,
however, clear and decisive on the point at issue are never to be consulted in aid of interpretationa canon recently
applied by the Australian High Court. S Australia v Commonwealth (1924) 65 CLR 373; Julius Stone, Province and
Function of Law, p 200, vide Lord Macmillans observation: At least they must not be referred to in Court; State of
Bombay v Chamarbaugwalla AIR 1956 Bom 1 [LNIND 1955 BOM 2], p 20: (report of the Indian Taxation Committee,
1924-25 held could not be relied upon in construing the Bombay Lotteries and Prize Competition Control and Tax Act,
54 of 1948); Sri Visalam Chit Fund Ltd, Banglore v Union of India, New Delhi AIR 1989 Kant 125 [LNIND 1988 KANT
122], (1988) ILR Kant 1518.
25 . (2000) 3 SCC 250 [LNIND 2000 SC 2283].
26 . (2007) 4 MLJ 1153 [LNIND 2007 MAD 2155]

Page 4 of 4
End of Document
Proceedings in Parliaments
NS Bindra
Debates
Legislative debates relating to an Act can also be looked into as an external aid to construction, where
necessary.27 Ministerial statements in the legislature can also be used as an external aid to construction,
especially in the case of provision amending a statute.28
It used to be the practice in the Calcutta High Court to refer to the proceedings in the legislature which resulted in
the passing of an Act. Similar was the practice in Bombay High Court.29 In Madras, the proceedings of the
legislative council were looked into in the case of Kamalammal v Krishnan Nair.30 But this was strongly dissented
from and the practice was condemned by Sir John Edge in Kadir Baksh v Bhawani Prasad.31
His Lordship observed:
No doubt debates in the House of Commons or the House of Lords or reports of special committees, whether of
one or other of these Legislative Assemblies or of Legislative Councils of India, are instructive historically if one has
to consider, not what the statute says, but what may have been the motives of one or other party in promoting the
legislation. If one were to refer to such debates and reports in order to ascertain the true construction in law of a
statute finally passed by the legislature, it would be necessary to see whether any alteration took place between the
time of the debate or the report and the final passing of the bill into statute law, and one would be construing the
language of the report or the debate and not that of the statute. It is within ones own experience that parties to
legislation sometimes fail so to express themselves in the statute as to carry out the intention they had in passing
the statute, and that subsequent legislation is necessary in order by an amendment of the original statute to
express in a statute language the meaning of the legislature. Another objection may be made that of two parties,
members of the legislature, who may approve of a bill as drafted, neither of them may attach the same meaning to
the wording of the bill. In such a case what possible light could a reference to their opinions, when the bill was
passing into an Act, throw upon the true construction of bill as passed into statute law? In my humble judgment, if
judges were to allow their minds to be influenced in the construing of a statute by debates in Parliament or reports
of Select Committees or other bodies on the bill, statute law would be reduced to confusion and instead of there
being one principle of construction of statutes well understood by lawyers, the construction of statutes would be
reduced to no principle at all.
Farewell LJ in Rex v West Riding of Yorkshire County Council32 observed:
It was suggested that the view taken by us of the Act is not in accordance with the intention of the House of
Commons or with public understanding of the effect of the Act; and reference was attempted to be made to the
debates and to passive resisters; but we have only to deal with construction of the Act as printed and published.
That is the final word of the legislature as a whole, and the antecedent debates and subsequent statements of
opinion or belief are not admissible. But they would be quite untrustworthy in any case. In the case of an Act dealing
with a controversial subject ambiguous phrases are often used designedly, each side hoping to have thereby
expressed its own view, and the belief of each that it has succeeded is more often due to the wish than to any effort
of reason. The generality of public understanding is quite incapable of proof, and is beside the mark unless as an
appeal to timidity: securus judicat orbis terrarum...but this will no more justify us in admitting, as evidence on the
Page 2 of 4
construction of an Act, speeches in either House or subsequent statements in the public papers, or elsewhere of
the effect of an Act than it would justify us in admitting on the construction of a will the advice given to a testator by
his solicitor before, or the statements of himself or his expectant legatees of the effect of his will, after he had made
it. This mischief sought to be cured by the Act and the aim and object of the Act must be sought in the Act itself.
Although it may, perhaps, be legitimate to call history in aid to show what facts existed to bring a statute, the
inferences to be drawn therefrom are extremely slight.
A further clarification was made in Aswini Kumar Ghose v Arabinda Bose,33 where the Court held that the
acceptance or rejection of amendments to a bill in the course of parliamentary proceedings cannot be used as an
extrinsic aid to construct the words of a statute. Whether or not it is permissible to have recourse to the debates in
the legislature for the purpose of understanding a statute, it is certainly permissible to look into the legislative history
of the enactment.34
In Gopalan,35 the Supreme Court considered the value of parliamentary speeches and debates at length. Kania
CJ. observed:
The result appears to be that while it is not proper to take into consideration the individual opinions of members of
Parliament or convention to construe the meaning of the particular clause, when question is raised whether a
certain phrase or expression was up for consideration at all or not, a reference to the debates may be permitted.
Fazal Ali and Mukherjee JJ. considered it to be a doubtful proposition. Sastri J. attached no importance to the
speeches made by some of the members of the Constituent Assembly in the course of the debate on Article 15
(now Article 21 of the Constitution). Das J. expressed no opinion on the admissibility of the drafting committees
report.
Mathew J observed in Kesavananda Bharati v State of Kerala:36
If the purpose of construction is the ascertainment of meaning, nothing that is logically relevant should, as a matter
of theory, be excluded. The rigidity of English courts in interpreting language merely by reading it, disregard the fact
that enactments are, as it were, organisms which exists in their environment. It is, of course, difficult to say that
judges who profess to exclude from their consideration all extrinsic sources are confined psychologically as they
purport to be legally. A judge who deems himself limited to reading the provisions of the Constitution without the
awareness of the history of their adoption in it would be taking a mechanical view of the task of construction.
In Sushila Rani v Commissioner of Income-tax,37 the Court was considering the provisions of Kar Vivad Samadhan
Scheme, 1998, to decide whether a certificate issued under Section 90 (1) of the Scheme making a determination
as to sum payable under the Scheme was conclusive as to matters stated in the Scheme, and whether it could be
reopened in any proceedings under any law for time being in force, except on the ground of false declaration by any
declarant. To decide this point, the Supreme Court considered the statement of the finance minister while
explaining object of the said scheme. The statement read as follows:
Litigation has been the bane of both direct and indirect taxes. A lot of energy of the Revenue Department is being
frittered in pursuing large number of litigations pending at different levels for long periods of time. Considerable
revenue also gets locked up in such disputes. Dialoging the system will not only incentivise honest tax prayers,
enable Government to realize its reasonable dues much earlier but coupled with administrative measures, would
also make the system more user-friendly.
Hence, the Court held that proceedings under Section 90 (1) could not be reopened.
Reference in Case of Ambiguity
Such aids may neither be decisive nor conclusive but they would certainly assist the courts in interpreting the
statute in order to determine the avowed object of the Act or the Constitution as the case may be except in the
aforesaid cases, a mere speech of any member made in the floor of the house during the course of a parliamentary
or legislative debate would not be admissible at all.38
Page 3 of 4
In Chiranjit Lal Chaudhari v Union of India,39 while considering whether the Sholapur Spinning and Weaving
Company Act, 1950, was an instance of unreasonable classification and hence liable to be declared as ultra vires
Article 14 of the Constitution, the Court observed that legislative proceedings could not be referred to for the
purpose of constructing an Act or any of its provisions, but they may be relevant for the proper understanding of the
circumstances under which it was passed and the reason which necessitated it. This observation accompanied the
reliance of the Supreme Court on Parliamentary proceedings to ascertain the reasons for the enactment of the
aforementioned Act. On the basis of Parliamentary proceedings, the Court found that the Act had been enacted to
curb mismanagement and losses in textile enterprises.
In Amichand Valanji v Katak,40 the Bombay High Court held that speeches made in Parliament by the sponsor of a
bill may be referred to for the limited purpose of ascertaining the conditions prevailing at the time which actuated the
sponsor to introduce it and the extent and the urgency of the evil sought to be remedied. Where the court is
concerned with the rules promulgated by the Central Government and there is no speech by the sponsor at the time
of introducing it in the Parliament, but the minister concerned made a broadcast on the eve of the promulgation of
the rules, it was held, that the broadcast may as well be equated with the speech of the sponsor as explaining the
position which necessitated the introduction.
27 .Amarnath v State of Haryana AIR 1977 SC 2185 [LNIND 1977 SC 233].
28 .Lik Sikshana Trust v Commr of Income-tax AIR 1976 SC 10 [LNIND 1975 SC 305]; Satpal& Co v Lt Govr (1979) 2
SCC 232.
29 .Shanthanand v Basudevanand AIR 1930 All 225 [LNIND 1930 ALL 3], p 239, (1930) ILR 52 All 619; Queen-Empress
v Kartik Chander Das (1911) ILR 14 Cal 721, p 728; Sheikh Moosa v Shaikh Essa (1884) ILR 8 Bom 241, p 246; Fader
Jhala v Gom Mohim Jhala (1892) ILR 19 Cal 544, pp 567-68.
30 . 88 LW 308.
31 . (1892) ILR 14 All 145, pp 149-50.
32 . [1906] 2 KB 676, pp 716-17: both sides sought to refer to what passed in Parliament as supporting their respective
contentions as to the meaning of the enactment, but such evidence was, of course, not admitted: on appeal [1907] AC
29; Gurdial Singh v Central Board and Local Committee Sri Darbar Sahib, Amritsar (1928) ILR 9 Lah 689, p 699; Dina
Nath v Raja Sati AIR 1923 Cal 73, p 77; Re Lala Harkishan Lal (1937) ILR Lah 69, AIR 1937 Lah 497, p 499.
33 . AIR 1952 SC 369 [LNIND 1952 SC 94], (1952) SCJ 568.
34 .R Sankar v State AIR 1959 Ker 100 [LNIND 1958 KER 252], p 106: what was passed by Lok Sabha and how it was
modified in Rajya Sabha.
35 . AIR 1950 SC 27 [LNIND 1950 SC 22], 38, 53, 73, 101, [1950] SCR 88 [LNIND 1950 SC 22], 110, (1950) SCJ 174
[LNIND 1950 SC 22],; Julius v Bishop of Oxford [1880] 5 AC 214 ; Lord Cairn and Lord Selborne disapproving R v
Bishop of Oxford [1979] 4 QBD 525, Bramwell and Baggallay JJ; opinion of Willies J in Millar v Taylor (1769) 4 Burr
2303, p 2332; and R v Hertford College [1878] 3 QBD 693, p 707; Ram Nandan v State AIR 1959 All 101, p 123.
36 . AIR 1973 SC 1461 [LNIND 1973 SC 154], p 1918.
37 . (2002) 2 SCC 697 [LNIND 2002 SC 235].
38 .SP Gupta v Union of India AIR 1982 SC 149, p 314, para 271.
39 . AIR 1951 SC 41 [LNIND 1950 SC 55]; Prativea Sasmai v Agricultural Income-tax Officer AIR 1958 Cal 585 [LNIND
1958 CAL 180]; Amarendra Nath v Bikash Chandra AIR 1957 Cal 534 [LNIND 1957 CAL 107]; Jayalakshmi Rice and
Oil Mill Contractors Co v Commr of Income-tax AIR 1967 AP 99 [LNIND 1966 AP 89].
40 . AIR 1966 Bom 70 [LNIND 1964 BOM 43], (1970) 72 Bom LR 234; Prativa Sasmal v Agricultural Income-tax Officer
AIR 1958 Cal 585 [LNIND 1958 CAL 180], p 588 (DN), per Sinha J: I am merely ascertaining the background, that is to
say, the reasons which compelled the legislature to divide it into two classifications.
Page 4 of 4
End of Document
Notes on Clauses
NS Bindra
Notes on Clauses
Reference cannot be made to the notes on clauses as aids to the construction of a statute.41 The view has been
consistently maintained that the court cannot look at the history of a clause or of the introduction of a proviso.42
Courts have observed that a section ought to be interpreted as it stands irrespective of what might have been
thought by any individual member of the legislative council.43 In the cases that follow there seems to be a shift in
the approach of the Supreme Court.
In Samurai Electronics Pvt Ltd v Municipal Council,44 the question before the Court was whether customs duty and
landing charges were to be included in the value for the purpose of imposition of octroi duty. Clause (2) of the Rules
read as follows: (2) All goods, on which an ad valorem octroi is leviable will be taxed according to their full value as
given in the original bill or invoice (Bijak). Note: Full value includes all taxes or excise duty and charges but does not
include railway freight, commission or other incidental charges on the goods.
The Court held that the note was a part of the rule which must be construed accordingly. Hence, answering in the
affirmative, the court held the note expressly indicates that all taxes were to be included in the value which means
that customs duty was included in the value for the purpose of imposition of octroi duty.
In Dalmia Cement (Bharat) Ltd. v Commissioner of Income Tax,45 the question before the Court was whether an
amendment made in 1988 to Section 43B (a) of Income Tax Act, 1961, was a clarificatory amendment or whether it
was a substantive amendment. The Court relied on the notes to clauses accompanying the Finance Act, 1988. The
note explained that Sub-clause (i) of the Amendment sought to substitute the existing clause by a new clause so as
to extend the scope of the section to cover any cess or fee. On the basis of the expressions used in the note, the
Court held that the amendment was not clarificatory, but sought to substantively amend the provision.
41 .Chundy Churn Law v Rohini Kumar Sarkar AIR 1934 Cal 119-20, per Mitter J: Ramireddi v Sreeramullu AIR 193 Mad
120-21, per Pandalai J.
42 .Barbat v Allen (1852) 7 Ex 616 ; Dina Nath v Raja Sati AIR 1923 Cal 73, p 77.
43 .Abdul Khan v Shakira Bibi AIR 1928 All 124, (1928) ILR 50 All 348: even though the individual happens to be a
minister; State of West Bengal v Union of India AIR 1963 SC 1241 [LNIND 1962 SC 438].
44 . (1998) 2 SCC 707.
45 . [ 2013] 357 ITR 419 (Del) : [2013] 218 Taxman 327 (Del).
End of Document
Bills
NS Bindra
Bills
The Bill and the alternation made in the Bill during its passage through the committee stage cannot be legitimately
taken into account in construing a provision where it is absolutely clear.46 However, they may be taken into
account in case of ambiguity and vagueness. Statements of Objects and Reasons47 appended to Bills have been
considered in State of Tamil Nadu v K. Shyam Sunder,48 where the Court observed:
TheStatement of Objects and Reasonsappended to theBill is not admissible as an aid to the construction of the Act
to be passed, butit can be used for limited purpose for ascertaining the conditions which prevailed at that time which
necessitated the making of the law, and the extent and urgency of the evil, which it sought to remedy.
In Kerala State Industrial development Corporation v CIT,49 the court while interpreting Section 5 of the Interest
Tax Act, 1974, held that even if there was any ambiguity in the matter under consideration, the budget speech of
the Minister of Finance while introducing the Finance Bill had made the same clear. The Court observed that such a
speech could be relied upon to throw light on the object and purpose of the particular provisions introduced by the
Finance Bill.
A speech made the Governor of Punjab in the Council, outlining the principles on which the gurdwara legislation
was to proceed and the assurances given there was not relied upon by Tek Chand J. in Gurdial Singh v Central
Board, Amritsar,50 in construing the Sikh Gurdwara Act 1925.
Counsel for respondent in Queen Empress v Balgangadhar Tilak51 was however, allowed to read passages from
Sir James Stephens speech as part of his address, and to state that he adopted Sir Stephens arrangement of
words as his own, but he was not permitted to cite Sir James Stephens opinion as an authority, which should
determine the construction to be put upon the section.
46 .RP Kapur v Pratap Singh Kairon AIR 1964 SC 295 [LNIND 1963 SC 180].
47 . For cases on whether the Statement of Objects and Reasons can be viewed as an internal aid see part II chap 4
supra.
48 . (2011) 8 SCC 737 [LNIND 2011 SC 738].
49 . (2003) 11 SCC 363.
50 . (1928) ILR 9 Lah 689; RS Ruikar v Emperor AIR 1935 Nag 149, p 152, per Grille J: statements made in the
Legislative Assembly or elsewhere on behalf of government; Ram Ranbijoy v Ramgirhi (1935) ILR 14 Pat 720, AIR
1935 Pat 346, p 348 (SB), per Mahommad Noor J: speech of Sir Stuart Bayley.
51 . (1877-79) ILR 2 Bom 112, p 128.
End of Document
Surrounding Circumstances
NS Bindra
Contemporaneous events may constitute an important extraneous aid to the construction of a statute. The concept
of such events embraces the history of the period when the statute was enacted, including the history of the statute
itself, the previous state of the law, and the mischief or evil against which the statute was aimed as a remedy. In an
overall sense, contemporaneous events are the relevant conditions existing at the time of adoption of the law. As
such, they may be consulted for the purpose of removing ambiguities in the language of an obscure Act. To know
the mischief to be remedied or the course or necessity of a law, is to accomplish much of the task of knowing the
true meaning. It is clear that unless there is any ambiguity, it would not be open to the court to depart from the
normal rule of construction which is that the intention of the legislature should be primarily gathered from the words
which are used. It is only when the words used are ambiguous that they would stand to be examined and construed
in the light of surrounding circumstances and constitutional principle and practice.52 The words of a statute should
generally be understood in the sense which they bore when it was passed. Every Act of Parliament must be
construed with reference to the state of the law subsisting when it came into operation, and when it is to be applied:
it cannot otherwise be rationally construed. Every Act is made, either for the purpose of making a change in the law,
or for the purpose of better declaring the law, and its operation is not to be impeded by the mere fact that it is
inconsistent with some previous enactments.53 Bret J. observed in Cover s case:54
Three canons of construction seem applicable in this case. Firstly, that the statute is to be construed, if possible,
according to the ordinary grammatical construction of the phraseology used in it. Secondly, if there be doubt as to
the construction, or if a construction of the phraseology used in it would lead to a manifestly unreasonable or absurd
conclusion, the statute must be considered with regard to the state of the law at the time when it was enacted.
It is always permissible to take into consideration the state of things existing at the time the statute was passed and
the evils which it was designed to remedy as appearing from the provisions of the Act itself. BK Mukerjee J
observed, in Hussen (Mhd) v Jamini Nath:55
Before I come to the Act itself by which the section was introduced, it may be useful to enquire as to whether the
state of law at the time when the amending Act was passed, and the object which the legislature had in view in
introducing the section could throw any light upon its interpretation. This is a permissible matter to look into for the
purpose of construing a statute, provided it is taken with the warning that we must not strain the language of statute
unduly by attempting to bring it within the supposed intention of the legislature.
However, it has been held by the Supreme Court that while considering a particular statute, a comparison of its
language with that in other similar statutes is not commendable, though sometimes instructive. Similarity or
variation in different laws is not necessarily indicative of a kindred or changed intention. Enactments drafted by
different hands at different times and to satisfy different requirements seldom afford tangible or sure aid in
construction.56
In Bapubhai v State of Bombay,57Section 4A of the Bombay Agricultural Produce Markets Act was under
consideration. The provision conferred on the government the power to declare, any enclosure, building or locality
in any market area to be a principal market yard for the area, and other enclosures, building, or localities to be one
or more sub-market yards for the area. This was subject to the proviso that if there were any market yards in
existence before the commencement of the Amending Act of 1954, then one of those market yards had to be
Page 2 of 2
declared the principal market yard and the others, if any, had to be declared sub-market yards. It was argued that
Vakar Baug was the only one market yard in existence before the Amending Act of 1954, and was properly
declared as the principal market yard though notification, dated 8 October 1954, but the subsequent notification,
dated 13 October 1954 declaring another area as market yard (for which preparations were under way), was in
contravention of the mandatory provisions of the proviso. However, the contention was not accepted, the court
holding that in construing a section or a proviso, the object of the Act and in certain cases, the circumstances which
led to the passing of the particular legislation, must be taken into consideration.
52 .Commr of Income-tax, Madhya Pradesh v Sodra Devi AIR 1957 SC 832 [LNIND 1957 SC 59], p 835; Nairn v
University of St Andrews [1909] AC 147.
53 .Dean of Ely v Bliss (1842) 11 LJ Ch 351, 354, per Lord Langdale MR.
54 . (1875) 1 Ch D 182, p 198.
55 . AIR 1938 Cal 97, pp 101-02; Dwarka Mahton v Patna City Municipality AIR 1936 Pat 282, 284, (1936) ILR 15 Pat 36.
56 .Nathia Agarwala v Jahanara Begum AIR 1967 SC 92 [LNIND 1966 SC 88], (1966) 2 SCJ 531 [LNIND 1966 SC 88].
57 . AIR 1956 Bom 21 [LNIND 1955 BOM 30], p 27; Amirchand Valanji v Kotak AIR 1966 Bom 70 [LNIND 1964 BOM 43],
(1965) 67 Bom LR 234.
End of Document
Policy58
NS Bindra
Policy58
It is needless for a court to scan the wisdom or policy of the statute, where the meaning of the words used admit of
no ambiguity.59 Again, it would be idle to rely on the principle of liberal construction unless it is shown that the said
provision is capable of two constructions. But if the words used in the said provision are reasonably capable of only
one construction, the doctrine of liberal construction would be wholly out of place.60
Crawford opined:61
...where doubt exists regarding the meaning of a statute, rather than to allow a miscarriage of the intention of the
legislature when that intention is in fact ascertainable, it would seem proper for the court to give the general policy
of the state some consideration. Nevertheless, if the legislature reveals an intent to depart from existing public
policy, that intent must be made effective; the court should not ignore or override it.
In Co-op Milk Societies Union Ltd v State of West Bengal,62 there was a conflict of jurisdiction between the Bengal
Co-operative Societies Act, 1940, and the Industrial Disputes Act, 1947. The question before the Court was whether
a dispute between the workers of a co-operative society and their employers could be referred to the Industrial
Tribunal under the 1947 Act. The Court held that questions relating to wages, wage scale, and dearness allowance
of a co-operative society satisfy the definition of industrial dispute under the 1947 Act. The Court held that the
legislative policy behind the 1947 Act was to create a general and broad framework to govern industrial disputes.
Hence, as long as the dispute was an industrial dispute, it had to be governed by the 1947 Act even if the industrial
dispute was between a co-operative society and its employees. In reaching this decision, the Court observed:
Policies of statutes are relevant for their proper construction, but within the broad framework of the main purpose
and policy of the statute construction is largely, fundamentally and primarily, a matter of interpretation of the words
used in the statutes. Ideas of policy gathered from extraneous sources, extraneous to the text of the statute and its
preamble are neither conclusive nor convincing, if the actual language subject to interpretation leaves no room for
doubt.
In Kanai Lal Sur v Paramnidhi Sadhukhan,63 the Court had to resolve a conflict of jurisdiction between Section 5
(1) of Calcutta Thika Tenancy Act, 1949, and Section 47 of Code of Civil Procedure, 1908. A decree for ejectment
was passed against the appellant, who was athika tenant. The appellant contended that the execution proceedings
taken out by decree holder against him could only be entertained by the Controller and not by Civil Courts. The
Court repelled this contention, and held that while the policy of the 1949 Act was to afford protection to thika
tenants, the language of the Act could not be stretched as much as to exclude the application of the CPC. In
arriving at this decision, the Court observed:
...The words used in the material provisions of the statute must be interpreted in their plain grammatical meaning
and it is only when such words are capable of two constructions that the question of giving effect to the policy or
object of the Act can legitimately arise. When the material words are capable of two constructions, one of which is
likely to defeat or impair the policy of the Act whilst the other construction is likely to assist the achievement of the
said policy, then the courts would prefer to adopt the latter construction. It is only in such cases that it becomes
relevant to consider the mischief and defect which the Act purports to remedy and correct.
Page 2 of 2
Policy58
In Kashmir Singh v Union of India,64 the Court had to consider Section 79 (iv) of the Sikh Gurdwaras Act, 1925,
and pronounce on its constitutionality. The impugned provision dealt with the removal of a member of the
Commission by the State Government without giving any reasons. It was argued that the power to remove was
guided by the object and general policy of the Act i.e. efficient and transparent management of Gurudwaras. Hence,
the uncanalized power granted to the Government was not unconstitutional. The Court repelled this argument, and
held that the object and policy of the Act, while being considered by the Government, could not be pleaded as a
limitation on unbridled discretion. Hence, the Court held the provision to be arbitrary and unconstitutional.
58 . For judicial review of policy also see part I chapter 3 supra.
59 .Lahore Enamelling and Stamping Co Ltd v AK Bhalla AIR 1958 Punj 341, p 344; following Barrel v Fordree [1932] AC
676: without, in the first instance with reference to cases; King v Ramsgate (Inhabitants) (1827) 6 B&C 712, 108 ER
613-14: sense which is their natural import in the order in which they are placed; Srinivasamurthy v State of Mysore AIR
1949 SC 894, p 896; Venkatappa v Nagappa AIR 1960 Mys 323.
60 . Ibid; SP Gupta v Union of India AIR 1982 SC 149, 271.
61 . Crawford, Statutory Construction, p 372, 375: But when the court is certain of the legislature policy, no real reason can
be urged against its use as an aid in the interpretative process. Indeed, if the court should refuse or fail to utilize this aid
under these circumstances, to that extent it falls to exhaust every possible source of assistance. It is the duty of the
court to give effect to the intent of the legislature. Primarily, this intent is to be ascertained by giving the words their
natural significance, but if this leads to an unreasonable result, plainly at variance with the policy of the legislation as a
whole we must examine the matter further. We may then look to the reason of the enactment and inquire into its
antecedent and give effect in accordance with its design and purpose, sacrificing, if necessary, the literal meaning in
order that the purpose may not fall: Ozawa v United States 360 US 178, p 67, L Ed 199, p 207.
62 . AIR 1958 Cal 373 [LNIND 1958 CAL 65].
63 . AIR 1957 SC 907 [LNIND 1957 SC 83]; Krishna Chandra Sarma v State of Uttar Pradesh(1962) All LJ 426; Lalta
Pande v Mahendranath Pande(1963) All LJ 190, 1963 AWR 849 (HC); Charam Chalmi Ahir v Pyrai Baboo 1963 Jab LJ
355.
64 . 2003 (3) RCR (Civil) 501
End of Document
Executive Construction
NS Bindra
Legislation Repeating the Very Words on which Practice Founded
It is a well-settled principle of interpretation that courts in construing a statute will give much weight to the
interpretation put upon it, at the time of its enactment and since, by those whose duty it has been to construe,
execute and apply it, although such interpretation has not by any means a controlling effect upon the courts and
may be disregarded for cogent and persuasive reasons.65 Such constructions have their basis in the necessary
practice of executive, administrative and departmental officers construing statutes for their own guidance in
advance of judicial construction. With the increased number of laws affecting the conduct and sphere of activity of
such officers, their practical constructions assume a larger role in the interpretation of laws. The inherent value of
practical construction is based on the reasoning that if such construction had not been in conformity with the
legislative meaning, the error would have been corrected by the action of the legislature. Government is a practical
affair intended for practical men. Both officers, law-makers and citizens naturally adjust themselves to any long
continued action of the executive departmenton the presumption that unauthorised acts would not have been
allowed to be so often repeated as to crystallise into a regular practice. That presumption is not reasoning in a circle
but the basis of a wise and a quieting rule that in determining the meaning of a statute or the existence of a power,
weight shall be given to the usage itselfeven when the validity of the practice is the subject of investigation.66
The vacillation of the Court to rely on executive construction is evident in Umesh Kumar v State of Andhra
Pradesh.67 The Court had to interpret Rule 16 of the All India Services (Conduct) Rules, 1968, which contained
obligations of disclosure on civil servants. It was suggested that the rule ought to be interpreted in light of the
interpretation suggested by a letter of the Government of India. The Court sought not to rely on this letter, claiming
that the executive construction dated to the year 1974, which would not be considered by the Court as corruption in
the present time had reached endemic proportions, and disclosure norms ought to be interpreted dynamically.
Practice Notes
Reliability of official advice cannot alter the construction of the statutes and the rules made thereunder. There can
be not estoppel against the government on a point of law and construction of statute. Neither the government nor
the court will be bound by the interpretation of the Act and the rules made by an administrative officer. The law of
the country is what the statute and rules thereunder say and how the courts of the land interpret them and not what
a particular government or administrative officer says. If the government officers interpretation is wrong, the party
acting on it takes the risk.68
Departmental Manual
In Shashi Gupta v LIC of India,69 the Court was considering a circular that laid down that if the death of a person
occurred after the payment of 2 instalments of premiums, the nominees would have the right to seek compensation
from the insurance company. The nominees contended that they ought to receive double the payment because it
was a case of accident (under the general rules, this was the practice). The insurance company responded by
claiming that the circular provides for a concession, hence the general rules would be excluded. The Court held that
the circular issued by the Life Insurance Corporation of India should be beneficial to the policy-holder. Hence, the
Court held that the payment claimed by the nominees ought to be granted.
Page 2 of 2
Value Persuasive
The rulings, interpretations and opinions of the particular agency, while not controlling upon the courts by reason of
their authority, do constitute a body of experience and informed judgment to which courts and litigants may properly
resort for guidance. The weight of such a judgment in a particular case will depend upon the throughness, evident
in its consistency, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those
factors which give it power to persuade if lacking power to control.70
Creation of Vested Rights
Where vested rights have grown up under the departmental construction, the courts are justified in being more
reluctant than in ordinary cases, in adopting a construction that will destroy or disturb such rights.
Entering into Contracts with Government
Where contracts have been entered into with the government in reliance on the departmental construction, or where
a departure from the executive interpretation would result in injustice, a similar reluctance is proper.71 Whatever
the government may understand by the language or any enactment is not of much consequence if the language
used does not bear the construction. The courts will not be guided by any opinion of the government as to the
interpretation of a legislative enactment according to the light that it receives from its legal advisers.72
65 .Baleshwar Bagarti v Bhagirathi Dass (1908) ILR 35 Cal 701, p 713; Mathura Mohan Saha v Ram Kumar Saha (1916)
ILR 43 Cal 790, p 810; Ishro v Om Prakash (1953) ILR Patiala 214; in United States, Brown J, has stated in Shells
Executor v Fanche(1890) 138 U Section 562, p 572;
In all cases of ambiguity in an enactment, the contemporaneous construction, not only of the courts, but of the departments,
and even of the officials whose duty it is to carry the law into effect is controlling.
Bishumer Nath Agarwal v Ganesh Narain Kelkar AIR 1963 MP 255.
66 .Udall v Tallman 13 L Ed 29 616, p 626, 380 US 1, per Warren CJ; United States v Farrer 74 L Ed 1078, 281 US 624,
per Sutherland J; Armstrong Paint and Varnish Works v Nu Enamel Corpn 83 L Ed 195, p 204, 305 US 315, per Reed
J: when choose is nicely balanced: Poe v Seaborn 75 L Ed 239, p 246, 282 US 101, per Roberts J: words so
construed, which the legislature repeatedly re-employed in Act passed subsequent to such executive construction:
United States v Dakota Montana Oil Co 77 L Ed 893, 288 US 459, per Stone J.
67 . 2012 (3) ALT (Cri) 19.
68 .PH Avari v State of West Bengal AIR 1958 Cal 203 [LNIND 1957 CAL 207], p 205; Federal Crops Insurance Corpn v
AA Merrel (1947) 332 US 380, 92 L Ed 10.
69 . AIR 1995 SC 1367.
70 .M.M. Mittal v Union of India (1972) ILR Delhi 671.
72 .Sadaria v Rajasthan Board of Revenue AIR 1954 Raj 224 [LNIND 1954 RAJ 258].
End of Document
Usage
NS Bindra
Usage
Optima Legum Interpres Consuetudo73
The meaning publicly given by contemporary or long professional usage, is presumed to be a true one, even when
the language has etymologically or popularly a different meaning. It is obvious that the language of a statute must
be understood in the sense in which it was understood when it was passed, and those who lived at or near the time
when it was passed, may reasonably be supposed to be better acquainted than their descendants with the
circumstances to which it had relation, as well as with the sense then attached to legislative expressions.74 Indeed,
it would appear that if legislature has stood by and thereby impliedly sanctioned by its non-interposition the
construction put upon its own language by long and notorious usage, of an authoritative and public character,
courts have hesitated to differ from that interpretation, if the language used in susceptible of it.75
Pollock CB in Fermoy Peerage case,76 put the rule succinctly thus:
The rule amounts to no more than this, that of the Act be susceptible of the interpretation which has been put upon
it by long usage, the courts will not disturb that construction.
Channell J. observed in Goldsmiths Company v Wyatt:77
Where indeed the court is called upon to construe an Act of Parliament expressed in unambiguous language, it
ought to put its own construction upon it regardless of the construction that has been commonly put upon it by other
persons less skilled in the law. The fact that a mistaken interpretation has been generally put upon it cannot alter
the law. But where the question is as to the meaning of ambiguous terms of common use, the fact that it has for a
long period of years been understood in a particular sense by persons who have an interest or duty in enforcing the
Act becomes very material.
Limits to the Rule
The rule does not apply when the earlier decisions have not been uniform and unvarying.78 Repeated violations of
the express terms of a modern statute passed in the public interest does not confer rights on the wrong-doer.79
When the usage has not been uniform, the court has to determine which current of authority should prevail and
construe the statute accordingly.80
Lord Loreburn in West Ham Union v Edmonton Union,81 observed:
Great importance is to be attached to these authorities (those by which the court below had considered itself bound)
on the strength of which many transactions may have been adjusted and rights determined. But where they are
plainly wrong, especially where the subsequent course of judicial decisions has disclosed the weakness of the
reasoning on which they are based, and the practical injustice in the consequences which must flow from them, I
consider it is the duty of this House to overrule them, if it has not lost the right to do so by itself expressly affirming
them.
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Usage
73 . Custom is the best interpreter of law. In Narain v University of St Andrews [1909] AC 147, p 160: the appellants (lady
graduates of the University of Edinburgh) claimed a right to vote in the election of the parliamentary representative of
the University of Edinburgh under the Representation of the People of (Scotland) Act 1868. Lord Loreburn, in the
course of his speech observed: It is incomprehensible to me that anyone acquainted with our laws or the methods by
which they are ascertained can think if indeed, anyone does think, there is room for argument on such a point. It is
notorious that this right of voting has, in fact, been confined to men. Not only has it been the constant tradition alike of
all three kingdoms, but it has also been the constant practice, so far as we have knowledge of what has happened from
the earliest times to this day. Only the clearest proof that a different states of things prevailed in ancient times could be
entertained in court of law in probing the origin of so inveterate an usage. I need not remind your Lordships that
numberless rights rest upon a similar basis. Indeed, the whole body of the common law has no other foundation. [
Coke, 2 Co Rep 81].
76 .Pachin v Duncombe(1857) 1 H&N 842, pp 856-57; Shepherd v Hills (1855) 11 Ex 55 , p 67, per Parke B:
It is, therefore, important to ascertain what the facts have been as to the receipt of duties from vessels-trading to the
Channel Islands and what has been the practice of the Custom House as to treating or not such vessels as coasting
vessels.
Morgan v Crawshay (1871) LR 5 HL 304, 320.
77 . [1905] 2 KB 586, p 596; [1907] 1 KB 95, p 107.
78 . Craies, Statute Law, fifth edn, p 147; Wilberforce, Statute Law, p 147.
79 .Interpretation of Statutes, eleventh edn, p 301; George Legge Sons v Wenlock Corpn [1938] AC 204, p 224.
81 . [1903] AC 1, p 4; Lord Advocate v Walker Trustees [1912] AC 95.
End of Document
International Law82
NS Bindra
International Law82
International law may not always be a good guide to the interpretation of the municipal law. In Konkan Railway
Corporation Ltd v Rani Construction Pvt Ltd,83 the question was whether the Model Law on International
Commercial Arbitration adopted in 1985 was relevant in the interpretation of Arbitration and Conciliation Act, 1996.
It was held that the UNCITRAL Model Law was only taken into account in the drafting of the Arbitration and
Conciliation Act, 1996. The Act and the Model Law were not identically drafted. Under Section 11 of the Act, the
appointment of an arbitrator, in the event of a party to the arbitration agreement failing to carry out his obligation to
appoint an arbitrator, is to be made by the Chief Justice or any person or institution designated by him; under
Clause 11 of the Model Law it is to be made by a court. Section 34 of the Act was altogether different from Clause
34 of the Model Law. The Model Law and judgments and literature thereon are, therefore, not a guide to the
interpretation of the Act and, especially, of Section 11 thereof.
82 . For a detailed consideration of this presumption see Part II chapter 1 supra.
83 . (2002) 2 SCC 388 [LNIND 2002 SC 84].
End of Document
Dictionaries
NS Bindra
Dictionaries
The meaning of words and expressions used in an Act must take their colour from the context in which they
appear.84 When the context makes the meaning of word quite clear, it becomes unnecessary to search for and
select a particular meaning out of the diverse meanings a word is capable of.85 To ascertain the meaning of
technical terms, reference may be made to authoritative works on the subject. The dictionary meaning is no
yardstick, where the provisions are ambiguous and leave a scope of unchecked, unguided and arbitrary
assumptions of jurisdiction, then the court has no alternative but to strike down those provisions.86 However, in
selecting one out of the various meanings of a word, regard must always be had to the context as it is a
fundamental rule that the meaning of words and expressions used in an Act must take their colour from the context
in which they appear.87
In the absence of any definition, dictionaries may be of some assistance to resolve an ambiguity. The ordinary
dictionary meaning cannot be discarded because it is given in a dictionary. To do that would be to destroy the literal
rule of interpretation.88 The courts have to ascertain the meaning of terms with reference to the context in which
they occur. Even so, the meaning that an expression bears according to dictionaries may afford guidance and
assistance in ascertaining the import and connotation of the expression, the meaning of which is in dispute.89 If the
word is not defined in the enactment itself, assistance may also be taken for the use of that word in other parts of
the Act to discover in what sense it has been used therein.90 When considering the meaning of a word, one often
goes to a dictionary, where one finds other words which are set out. And if one wants to pursue the matter and find
the meaning of those other words, the dictionary will give the meaning of those other words in still further words
which often include the word for whose meaning one is searching. Undoubtedly, dictionaries including law
dictionaries, are useful guides in the task of interpretation of deeds and statutes, provided appropriate meaning
which fits in the context is chosen, otherwise it will be a fruitless exercise. According to Hardcastle:91
dictionaries are sometimes delusive guides and the best dictionary... can never be an absolute authority on so
varied and fluctuating subject as language.
In Shaikh Gulfan v Sanat Kumar Ganguli,92 the Court observed:
No doubt reference to the better dictionaries does afford, either by definition or illustration, some guide to the use of
a term in a statute. But it is necessary to remember that exclusive reliance on the bare dictionary meaning of words
may not necessarily assist a proper construction of the statutory provision in which those words occur.
Referring to Article 291 of the Constitution of India, Hidayatullah CJ. observed inMadhav Rao v Union of India:93
I do not propose to refer to dictionaries at all. The words of the article are plain enough to me and I have only to
discover its dominant and immediate purpose or theme to say whether it is a provision relating to Covenants and
Agreements.
Where there is nothing better to rely upon, dictionaries may be used to find out the general sense in which any
particular word is understood at common parlance. As stated by the Supreme Court in WT Commissioner, Andhra
Pradesh v Court of Wards:94
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Dictionaries
The ordinary dictionary meaning cannot be discarded simply because it is contained in a dictionary. To do that
would be to destroy the literal rule of interpretation. This is a basic rule relying upon the ordinary dictionary meaning
which, in the absence of some overriding or special reasons to justify a departure must prevail.95
Lord Coleridge observed in R v Peters:96
Dictionaries can hardly be taken as authoritative exponents of the meanings of the words used in legislative
enactments, for the plainest words may be controlled by a reference to the context. Similarly, lexicons would only
define an expression in terms of a decision given by a court of law, and unless this decision was given under the
Act in which the expression is used in it involves a dangerous method of interpretation.97
In the same case, Cozens Hardy MR opined:
It is for the court to interpret the statute as best as it may. In so doing the courts may no doubt assist themselves in
the discharge of their duty by any literary help they can find, including of course the consultation of standard authors
and reference to well-known and authoritative dictionaries.
In Shabir Ahmad v Sham Lal,98 the question was whether the expression shop-cum-flat was a residential building
or a non-residential building. It was held that the approach in interpreting the expression shop-cum-flat having
regard to the dictionary meaning of the word flat was not proper. The courts ought not to be unmindful of the
consequence of too much reliance on the dictionaries and lexicons lest they go astray in interpreting recitals in a
deed or document or provisions in a statute. It was further held that the expression shop-cum-flat was not defined in
the East Punjab Urban Rent Restriction Act, 1949. It was not a technical expression and not a term of art, so it has
to be understood in its popular sense, that is, as commonly understood. In that sense it was capable of being
understood both as a residential as well as a non-residential building. Therefore, the expression shop-cum-flat does
not always mean that the ground floor of the building is meant for shops and the first and the higher floors are
residential accommodation in the building. The correct approach would be to refer to the context in which the
expression appears and then construe it. It was held that it was a non-residential building and could not be used for
residential purpose.
In Thalappalam Ser. Coop. Bank Ltd. v State of Kerala,99 the Court had to consider the scope of the expression
substantially financed, occurring repeatedly in the Right to Information Act, 2005. The Court placed reliance on the
definitions given in the Oxford English Dictionary and Blacks Law Dictionary, to hold that the aforementioned
expression would mean that funding ought to be so substantial to the body that it ran by such funding, and it would
struggle to exist if the funding was withdrawn.
Dictionaries were also referred to and relied on in this Janki Sugar Mills v Commissioner,100 while interpreting
certain expressions under the Uttar Paradesh Sugarcane Order, 1954, and Gestetner v Commissioner of Income-
tax101 while interpreting the expression salary in the Income Tax Act, 1961, Schedule IV, Part A, Rule 2 (b).102
84 .Union of India &Ors v Harjeet Singh Sandhu (2001) 5 SCC 593 [LNIND 2001 SC 947].
85 .Mangoo Singh v Election Tribunal AIR 1957 SC 871 [LNIND 1957 SC 89], p 875; H Raghavendrachar v Register,
Karnataka University, Dharward AIR 1995 Kant 91 [LNIND 1994 KANT 161].
86 .Sonepat Co-op Sugar Mills Ltd v PO Labour Court AIR 1986 P&H 386.
87 .S Samuel, MD Harrisons Malayalam v Union of India, (2004) 1 SCC 256.
88 .Commr of Wealth-tax, Andhra Pradesh v Officer Incharge Court of Wards Paigah (1976) 3 SCC 864 [LNIND 1976 SC
256].
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Dictionaries
89 .Sarbeswar Bardoloi v UK Gohain Judge, Industrial Tribunal AIR 1955 Assam 148; Vasantarao Lakshmanarao v
ITA(1966) ILR Guj 784; Taj Mahal Hotel, Secunderabad v Commr of Income-tax, Hydrabad AIR 1969 AP 84 [LNIND
1967 AP 82], p 87, per Venkatesan J.
90 .Bhogilal Chunilal v State of Bombay AIR 1959 SC 356 [LNIND 1958 SC 137]-57: the word should be interpreted
ordinarily in its primary meaning, unless there is something in the Act to compel the court to depart from its primary
meaning.
91 .Statutory Law, third edn, p 165; Rex v Hall(1822) 1 B&C 123; quoted in Ruplal Mehra v Emperor AIR 1945 Lah 158, p
162; Attorney-General for New South Wales v Brewery Employees Union of New South Wales 6 CLR 469, p 606.
92 . AIR 1965 SC 1839 [LNIND 1965 SC 81], (1965) 2 SCA 156 [LNIND 1965 SC 81]; Nar Singh v State AIR 1967 Punj
111; Ishwarlal Girdharlal Joshi v State of Gujarat AIR 1968 SC 870 [LNIND 1967 SC 326]; Shitab Khan v Bar Council
of India AIR 1969 Raj 136 [LNIND 1968 RAJ 62]; Mannammal v Seha Mudaliar (1968) ILR 2 Mad 616, (1968) 1 Mad
LJ 94.
93 . [1971] 3 SCR 9 [LNIND 1970 SC 481], p 67.
94 . AIR 1977 SC 113 [LNIND 1976 SC 256].
95 .Commr, Wealth-tax v Tarabai Kanakmal 1983 Jab LJ 10.
96 . [1886] 16 QBD 636, p 641; Lakshmi Kutty v Mohandas (1989) 2 Ker LT 539 [LNIND 1989 KER 274].
97 .Piara Singh v State AIR 1960 Punj 538, p 541; quoting Ruplal Mehra v Emperor AIR 1945 Lah 158; Karam Narain v
Volkart Bros AIR 1946 Lah 116, p 128.
98 . (2002) 3 SCC 118 [LNIND 2002 SC 109].
99 . 2013 (12) SCALE 527 [LNIND 2013 SC 918]
100 . (1979) 1 SCC 524 [LNIND 1978 SC 388].
101 . AIR 1979 SC 607 [LNIND 1978 SC 391].
102 . Gestener Duplicators Pvt Ltd v Commr of Income-tax, West Bengal 1979 SC 607; KB Rohmare v Shankar
Bao (1975) 1 SCC 252 [LNIND 1974 SC 368]; Sant Rant v Union of India AIR 1976 Del 90 [LNIND 1975 DEL 91].
End of Document
Textbooks and Encyclopedias
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Textbooks and Encyclopedias
While interpreting an Act, the courts have consistently been using standard text books and encyclopedias. In Ram
Lal v State of Rajasthan,103 the question that came under consideration was whether camel milk was also
included under the Prevention of Food Adulteration Rules, 1955. The Supreme Court referred to Encyclopedia
Americana (vol 5, p 263) where it was mentioned that the milk of camel is nutritious. In the World Book
Encyclopedia it was said that millions of people who live in Africa and Asia depend on camels to supply most of
their needs...For people who live deep in the deserts, camels are almost the only source of transportation, food,
clothing, the shelter...They drink camels milk and also make cheese from it. The milk is so rich and thick that it
forms hard lumps in tea or coffee. It was also held that the study made with camels milk by various countries
reveals that it contains fatty acid and the total protein is of the same order as in cows milk. In the same publication it
is mentioned that Russian workers have made extensive studies on the vitamin contents of camels milk. A French
Scientific Organisation called CIRAD has been specialising in agricultural research for the tropics and of the world.
Recently the said organisation came out with a paper, which is available on internet, and according to which the
camel milk can profitably be used for human purposes. Thus the court held that the camel milk was included in the
said rules.
In Velusamy v Patchaiammal,104 Katju J. relied on Wikipedia to ascertain the meaning of a common law marriage.
On the basis of this definition, the Court held that in a relationship not backed by a legally valid marriage, the
woman might still be able to resort to the Protection of Women from Domestic Violence Act, 2005, which otherwise
was meant for married women.
103 . (2001) 1 SCC 175 [LNIND 2000 SC 1393].
104 . AIR 2011 SC 479 [LNIND 2010 SC 1013]: (2010) 10 SCC 469 [LNIND 2010 SC 1013]
End of Document
Analogy
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Analogy
Merely because in an entirely different context and according to the scheme of a different enactment particular
words were construed by a court to mean a certain thing, it will be idle to urge that similar words occurring in
another context and in a dissimilar enactment should be given the same construction.105
In K Hutchi Gowder v Ricobdas Fathaimul,106 the Court held that the judiciary could not, in the case of an
exproprietary measure like the Madras Agriculturists Relief Act, 1938, rely upon the supposed policy of the
legislature and extend the scope of the relief to agriculturists by analogy.
105 . Begum Shah Hussain v Attar Singh AIR 1960 J&K 110, p 112.
106 . AIR 1965 SC 577 [LNIND 1964 SC 187].
End of Document
History of Legislation
NS Bindra
Accordingly, it is a sound rule of interpretation to take the words of a statue as they stand to interpret them ordinarily
without any reference to the previous state of the law on the subject or the English law upon which it may be
founded. However, when it is contended that the legislature intended by any particular amendment to make
substantial changes in the pre-existing law, it is impossible to arrive at a conclusion without considering what the
law prior to the particular enactment was and to see whether the words used in the statute can be taken to effect
the change that is suggested as intended.107
In Bhagat Ram v Teja Singh,108 the question before the court was when a property was inherited by a female
Hindu from her father or mother, would it become her absolute property under Section Sections 14 of the Hindu
Succession Act, 1956, or would it be governed by Section 15 according to which the rule of survivorship shall apply.
Holding that Section 15 (2) and not Section 14 (1) shall apply, the court said that even if the female Hindu who has
limited ownership becomes full owner by virtue of Section 14 (1) of the Act, the rules of succession given under
sub-section (2) of Section 15 can be applied. The court further observed that the Hindu Succession Bill, 1954, as
originally introduced in theRajya Sabha, did not contain any clause corresponding to sub-section (2) of Section 15 .
It came to be incorporated on the recommendations of the Joint Committee of the two houses of parliament. The
source from which she inherits the property is always important and that would govern the situation. Otherwise
persons who are not even remotely related to the person who originally held the property would acquire rights to
inherit that property. That would defeat the intent and purpose of sub-section (2) of Section 15, which gives a
special pattern of succession.
Document or report preceding the legislation can legitimately be taken into consideration while construing the
provisions of an Act. In Shrimant Shamrao Suryavanshi v Pralhad Bhairoba Suryavashi,109 while interpreting the
provisions of Section 53A of the Transfer of Property Act, 1882, the court held that Section 53A was inserted in the
Transfer of Property Act on the basis of recommendations of the Special Committee set up by the Government of
India. The Special Committees report which was reflected in the aims and objects of the Amending Act, 1929,
showed that one of the purposes of enacting Section 53A was to provide protection to a transferee who, in part-
performance of the contact, had taken possessions of the property even if the limitation to bring a suit for specific
performance has expired. Therefore, Section Sections 53A was required to be interpreted in the light of the
recommendation of the Special Committees report and aims and objects contained in the Amending Act 1929 of the
Act.
When History not a Proper Guide
Lord Herschell indicated the correct approach in Bank of England v Vagliano,110 thus:
I think the proper course is in the first instance to examine the language of the statute and to ask what is its natural
meaning, uninfluenced by any considerations derived from the previous state of the law, and not start with inquiring,
how the law previously stood, and then, assuming that it was probably intended to leave in unaltered, to see, if the
words of the enactment will bear an interpretation in conformity with this view. If a statute, intended to embody in a
Code a particular branch of law, is to be treated in this fashion, it appears to me that its utility will be almost entirely
destroyed, and the very object, with which it was enacted, will be frustrated. The purpose of such a statute surely
was that on any point, specially dealt with by it, the law should be ascertained by interpreting the language used,
instead of, as before, roaming over a vast number of authorities in order to discover what the law was, extracting it
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by a minute critical examination of the decision. Hence, whether the statute codifies or amends the law, if its
provisions are expressed in clear and unambiguous terms, resort should not be had to the pre-existing law,
although such reference may be useful and legitimate where the provisions are of doubtful import or are couched in
a language which had previously acquired a technical meaning.
Reference to History when Justifiedlimit thereof
Legislative history of a provision, though not directly germane for the purpose of construing a statute may, however,
be used in exceptional cases to denote the beginning of he legislative process which results in the logical end and
the final of the statutory provision, but in no case can the legislative history take the place of or be a substitute for
an interpretation which is in direct contravention of the statutory provision concerned.111
When Meaning of Statute is Clear
Jessel MR made the following pertinent observation in Holme v Guy:112
The court is not to be oblivious of the history of law and legislation. Although the court is not at liberty to construe an
Act of Parliament by the motives which influenced the legislature, yet when the history of law and legislation tells
the court, and prior judgments tell this present court what the object of the legislature was, the court is to see
whether the terms of the section are such as fairly to carry out that object and no other, and to read the section are
such as fairly to carry out that object and no other, and to read the section with a view to finding out what it means,
and not with a view to extending it to something that was not intended.
In Baroda Oil Cakes Traders v Parshottam,113 the Court was called upon to interpret Section 20 (c) of the CPC.
Controversy arose in this case because the plaintiff contended that the civil court in Baroda had jurisdiction since
the cause of action had partly arisen in Baroda, whereas the defendant claimed that the entire cause of action had
arisen in Kanpur. Hence, the expression cause of action had to be interpreted. The Court examined the provisions
of CPC 1882 as well as the amendment made to the Code whereby partially arising cause of action was included in
section 20 (c) of the Code. Subsequent to such examination the Court ruled that Section 20 (c) would include a
cause of action that partially arose within the jurisdiction of the civil Court in Baroda. The Court provided the
following reasons for arriving at its decision.
It is perfectly true that in interpreting the provisions of Section 20 (c)it is unnecessary to consider the previous
history of these provisions, because our duty in such a case would clearly be to interpret the words as they occur in
Section 20 (c), wholly uninfluenced by any considerations arising from the previous legislative history of this section.
Even so I have referred to the previous history of this section because during the course of the arguments the
question of the effect of the deletion of Explanation 3 to Section 17 while enacting the present Code of Civil
Procedure was agitated before us. I am disposed to take the view that Explanation 3 has been omitted from the
present Code, because in view of the words used in Section 20 (c) it was clearly no longer necessary. What was
provided for by the said Explanation is in substance contained in the provisions of Section 20 (c). In my opinion, the
position of law in respect of cases failing under Section 20 (c) of the present Code is substantially the same as it
was under the provisions of Explanation 3 to Section 17 of the earlier Code.
In Ram Adhar Singh v State of Bihar,114 the Court was called upon to interpret Rule 75 (d) of the Bihar and Orissa
Service Code, and decide whether orders of compulsory retirement passed under the Rule would be tantamount to
the expressions removal and dismissal in Article 311 of the Constitution. The Court observed that to construe the
provisions of Article 311, reference will have to be made to historical facts, to the surrounding circumstances, and
the state of the law at the time of the Constitution. Hence, the aforementioned expressions in the Article must be
given the same meaning which was given in the statutory rules and regulation which were existent at the time
Constitution was enacted. Hence, the Court held that an order of compulsory retirement under Rule 75 (d), passed
against a police officer in subordinate service, would not fall within the purview of Article 311.
When Statue has Been Amended
In Abdul Shukoor v Mohd Ibrahim,115 the Court was called upon to interpret Orders XLVII, Rule 7 and Order XLIII,
Rule 4 of the Code of Civil Procedure, 1908. The question before the Court was whether an appeal would lie under
Order XLIII against an order granting review under Order XLVII. In this regard, the Court relied on these provisions
Page 3 of 3
of the CPC prior to the Amendment of 1956. The Amendment had not enlarged the appealable list to include such
appeals in Order XLIII. Hence, the Court held that orders under Order XLVII could not be appealed against under
Order XLIII, and upheld the preliminary objection raised by the respondent. In arriving at this decision, the Court
observed:
While interpreting a statute or any of its provisions, what the Court is trying to do is to ascertain the intention and the
policies of the statute to the extent they may be gathered from the language used in it. Where the statute has
undergone changes by way of amendments or otherwise, it is not only permissible but of great assistance in the
matter of interpretation to examine the legislative history of the provisions.
107 . Abdur Rahim v Abdul Mahommad Barkat Ali Shah AIR 1936 Nag 55.
108 . (2002) 1 SCC 210 [LNIND 2001 SC 2518].
109 . (2002) 3 SCC 676 [LNIND 2002 SC 55].
110 . [1891] AC 107, p 144; Subba Rao v Commr of Income-tax, Madras AIR 1956 SC 604 [LNIND 1956 SC 49],
610; Ganpat v Sopana (1928) ILR 52 Bom 35; Wilkinson v Wilkinson AIR 1928 Bom 321, (1945) ILR 47 Bom 843;
Satish Chandra v Ram Dayal De (1921) ILR 48 Cal 388, p 405; King-Emperor v Barendra Kumar Ghose AIR 1924 Cal
259, p 272; Khandelwal v Official Assignee AIR 1924 Cal 424; Rahim Bux v Central Bank (1929) ILR 56 Cal 376, AIR
1929 Cal 497; Neogi v Neogi AIR 1936 Rang 150; Suraj Prasad v Bulab Chand (1901) ILR 28 Cal 528; Norendra Nath
Sircar v Kamal Basini Dasi (1896) ILR 23 Cal 563, p 572 (PC).
111 .SP Gupta v Union of India AIR 1982 SC 149, p 314.
112 . (1887) 5 Ch D 901.
113 . AIR 1954 Bom 491 [LNIND 1954 BOM 11].
114 . AIR 1654 Pat 187.
115 . AIR 1962 Mys 239, p. 244. See also National Insurance Co Ltd v Swaran Singh (2004) 3 SCC 297 [LNIND
2004 SC 20]; Godawat Pan Masala Products Ltd v Union of India (2004) 7 SCC 68 [LNIND 2004 SC 737]; Iridium India
Telecom Ltd v Motorola (2005) 2 SCC 145 [LNIND 2005 SC 15] and Pratap Singh v State of Jharkhand (2005) 3 SCC
551 [LNIND 2005 SC 100]: recent cases relying upon legislative history to aid interpretation.
End of Document
Conclusion
NS Bindra
Conclusion
This chapter shows that the moment Courts undertake a more purposive interpretation of the statute they start to
rely upon the external aids of interpretation. Interestingly, in a number of decisions the relevance of dictionaries has
been traced to the literal rule of interpretation. Since Courts have relied upon a range of external aids and never
really prioritized them, lawyers would need to be cognizant of the varied consequences that may arise from relying
upon different kinds of aids.
End of Document
Introduction
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Repeal and Savings
Introduction
The power of a legislative body to repeal a law is co-extensive with its power to enact such a law.1 Just as the
legislature has the power to enact laws, similarly it has the power to repeal them. The efficacy of the legislature
depends upon the possession of the power to repeal the existing law, for, without this attribute, the power to enact
will be ineffective and but for such plenary power, there will be a flood of contradictory enactments. Consequently,
the legislative power to repeal prior laws is not inhibited by any constitutional prohibitions, but exists as a necessary
concomitant function of the legislature power.2 No Statute can make itself secure against repeal. There is nothing
to prevent any parliament from enacting that a particular statute shall never in any circumstance be altered or
abrogated, and at certain troubled periods of history this seems to have been the intention of the legislators.
However, it is equally clear that there is nothing to prevent any subsequent Parliament from treating such a
provision as pro non scripto. In any enlightened government an unrepealable statute is a contradiction in terms,
striking as it does at the very root of legislative theory.3 It is within the power of any Parliament to repeal any of the
Acts passed by its predecessors and that it is not within the power of any parliament to prevent the repeal of any of
its own Acts, or to bind its successors.4 It is not competent for parliament to pass a statute binding itself never to
pass a contradictory statute, because that would be fettering the supremacy of Parliament; nor can the legislature
bind itself as to the form of the subsequent legislation and enact that in later statute, Parliament makes it plain that
the earlier statute is being to some extent repealed, effect must be given to that intention.5 If the several provisions
of an Act can, without conflict with the provisions of the constitution, exist, then notwithstanding the provisions of the
constitution making ineffective certain other provisions of the said law, the law itself cannot be held to be repealed
and those provisions which are not inconsistent with the provisions of the constitution, will be in force.6
The power of repeal lies with the legislature; it is not a power which can be exercised by the executive to nullify the
policy of the legislature. Thus when the legislature of Delhi provided for an all-inclusive affirmative action policy it
was not permissible for the Delhi Government to limit the application of the law to the armed forces only.7
1 . Ram Krishna v Janpad Sabha AIR 1962 SC 1073 [LNIND 1962 SC 59], p 1080; quoting Attorney-General for Ontario
v Attorney-General for Dominion [1894] AC 348 , p 366.
2 . Sutherland, Statutory Construction, vol I third edn, art 2003, pp 490-95.
3 . Allen, Law in the Making, fourth edn, pp 387-88.
4 . Wilberforce, Statute Law, p 309; Craies, Statute Law, fourth edn, p 292.
5 . Halsburys Laws of England, second edn, vol 31, para 703.
6 . Sitarama Reddy v Chinna Ram Reddy AIR 1959 AP 159 [LNIND 1958 AP 46]: it is one thing to say that some of the
provisions of a law have become invalid and ineffective, and it is another thing to say that the Act itself has been
repealed; the duty enjoined in the High Court of Hyderabad to prepare decrees in conformity with the orders of HEH the
Nizam subsisted even after the jurisdiction of the High Court had been abolished after 26 January 1950.
7 . Indian Medical Association v Union of India and others, (2011) 7 SCC 179 [LNIND 2011 SC 527], [2011] 6 SCR 599.
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Introduction
End of Document
Objects of Repealing Acts
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Repeal and Savings
Objects of Repealing Acts
The object of repeal and re-enactment is to obliterate the repealed act and to get rid of certain obsolete matters.
Therefore, when the repeal is followed by a fresh legislation on the same subject, the court would undoubtedly have
to look to the provisions of the new Act only for the purpose of determining whether the new act indicates a different
intention.8 If there is repugnancy between the two pieces of legislation, to such an extent that both cannot stand
together and operate simultaneously, the latter will have the effect of impliedly repealing the former.9
8 . District Mining Officer &Ors v Tata Iron and Steel Co (2001) 7 SCC 358 [LNIND 2001 SC 1542].
9 . Dharangadhra Chemical Works v Dharangadhra Municipality AIR 1985 SC 1729 [LNIND 1985 SC 273], (1985) 4
SCC 92 [LNIND 1985 SC 273].
End of Document
Express Repeal
NS Bindra
Repeal and Savings
Express Repeal
Express repeal of a statute is usually made by stating that the earlier statute or a particular provision therein is
thereby repealed. Usually enactments repealed are mentioned in a schedule attached to the repealing statute. Such
express repeal needs no contraction of the later statute. The maxim expressio unius est exclusio alterius applies
and accordingly, those statutes and those alone are repealed.10
Sometimes the expression used in the later statute for such purpose runs: all provisions inconsistent with the Act
are repealed, or all Acts and parts of Acts in conflict with the provisions of this Act are hereby repealed, or all laws
and parts of law in conflict herewith are expressly repealed. Provisions of this character leave the question open as
to what laws are inconsistent and are intended to be so repealed. One view, therefore, is that here is a case not of
express repeal but by implication and, therefore, all rules of law which apply to implied repeals generally will be
applicable to repeals brought about in the aforesaid manner.11 The question naturally arises in such cases as to
the extent or scope of the repeal. Thus, where a repealing clause expressly refers to a portion of the prior Act, the
remainder of such Act will not usually by repealed, as a presumption is raised that no further repeal is necessary,
unless there is irreconcilable inconsistency between them. In like manner, if the repealing clause is by its terms
confined to a particular Act, quoted by title, it will not be extended to an Act upon a different subject. And a general
Act repealing all Acts inconsistent therewith will usually apply to general Acts and not to special or local laws. The
reason behind this rule, according to Crawford,12 finds its foundation on two premises: the special Act is not
repealed because it is not named, or because there is no absolute inconsistency between the general Act and the
special Act. Consequently, if the repealing Act named the special Act or if the two were irreconcilably inconsistent,
the special Act would also be terminated.
In Air India v Union of India,13 the Court was considering the Air Corporations (Transfer of Undertakings and
Repeal) Act, 1994, and Section 45 of the Air India Corporations Act, 1953. Section 45 of the 1953 Act empowered
Air India to frame regulations for its employees, and Section 11 of the 1994 Act explicitly repealed the 1953 Act. It
was contended by Air India that Section 8 of the 1994 Act saved the said Regulations. The Court repelled this
contention, and held that Section 8 only protected the remuneration, terms and conditions and rights and privileges
of those who were in Air Indias employment when the 1994 Act came into force. What was enacted in Section 8 did
not cover those employees who joined Air Indias service after the 1994 Act came into force. Hence, the Court held
that the limited saving enacted in Section 8 did not extent to the said Regulations, as it did not carry the explicit
mandate to do so. The Court observed:
If subordinate legislation is to survive the repeal of its parent statute, the repealing statute must say so in so many
words any by mentioning the title of the subordinate legislation. We do not think that there is room for implying
anything in this behalf...
10 . Garnett v Bradley [1878] 3 AC 944 , p 965, per Lord Blackburn; D Srinivasa Rao v Govt of Andhra Pradesh AIR
1991 AP 112 [LNIND 1990 AP 140]; Competent Officer Gujarat Housing Board v KB Parmer AIR 1993 Guj 5.
11 . Crawford, Statutory Construction, art 307, pp 677-28; Craies, Statute Law, fifth edn, p 322.
Page 2 of 2
Express Repeal
12 . Statutory Constructions, p 627.
13 . (1995) 4 SCC 734 [LNIND 1995 SC 708].
End of Document
Implied Repeal
NS Bindra
Repeal and Savings
Implied Repeal
Where there is direct reference in the repealing clause to a particular Act, it is a case of express repeal. But where
there is no direct reference, the matter will have to be determined by taking into account the exact meaning and
scope of the general words contained in the repealing clause and the principles of law which govern the
interpretation of the same. It is well-settled that implied repeal is not readily inferred and the mere provision of an
additional remedy by a new Act does not take away an existing remedy.14 Principles governing the cases of
implied repeal can in such a case be called in aid to determine whether there is effective repeal of the earlier
statute.15 Where two apparently inconsistent provisions which were originally of different dates have been repealed
and re-enacted in a consolidating Act the original priority of date is to be regarded in their interpretation, because
one may possibly repeal the other by implication and that repeal by implication is not to be prevented by reason of
those two provisions being repeated in one act and, therefore, made on the same day.16
There is a presumption against a repeal by implication.17 The reason for the presumption is that the legislature
while enacting a law has a complete knowledge of the existing laws on the subject matter and, therefore, when it
does not provide a repealing provision, it gives out an intention not to repeal the existing legislation. The burden to
show that there has been a repeal by implication lies on the partly asserting it. Courts lean against implied repeal. If
by any fair interpretation both the statutes can stand together, there will be no implied repeal. If possible, implied
repeal shall be avoided. One of the important tests to determine the issue of implied repeal would be whether the
two provisions are so irreconcilably inconsistent that they cannot stand together or the intention of legislature was
only to supplement the provisions of the earlier Act. This intention is to be ascertained from the provisions of the
latter Act.
An implied repeal of an earlier law can be inferred only where there is the enactment of a later law which had the
power to override the earlier law and is totally inconsistent with the earlier law that is where the two laws-the earlier
law and the later law-cannot stand together. This is a logical necessity because the two inconsistent laws cannot
both be valid without contravening the principle of contradiction. The later laws abrogate earlier contrary laws. This
principle is however subject to the condition that the later law must be effective. If the later law is not capable of
taking the place of the earlier law, and for some reason cannot be implemented, the earlier law would continue to
operate. To such a case, the rule of implied repeal may result in a vacuum which the law-making authority may not
have intended.18
As the legislature must be presumed in deference to the rule of law to intend to enact consistent and harmonious
body of laws, a subsequent legislation may not be too readily presumed to effectuate a repeal of existing statutory
laws in the absence of express or at least clear and unambiguous indication to that effect. This is essential in the
interest of certainty and consistency in the laws which the citizens are enjoined and expected to obey. The
legislature, which may generally be presumed to know the existing law, is not expected to intend to create
confusion by its omission to express its intent to repeal in clear terms. The rule, therefore, is that every effort should
be made to reconcile the two enactments and to construe them so as to avoid their being repugnant to each other
and care should be taken to see whether the two really operate in different heads without encroachment.19
The courts, therefore, as a rule lean against implying a repeal unless the two provisions are so plainly repugnant to
each other that they cannot stand together20 and it is not possible on any reasonable hypothesis to give effect to
both at the same time.
Page 2 of 4
Implied Repeal
However, if two statutes by a fair course of construction are capable of being reconciled, that must be done, and
both the statutes be allowed to stand.21 Statutes in parimateria although in apparent conflict should also, so far as
reasonably possible, be construed to be in harmony with each other and it is only where there is an irreconcilable
conflict between the new provisions and the prior statute relating to the same subject matter, that the former, being
the later expression of the legislature, may be held to prevail, the prior law yielding to the extent of the conflict.
The same rule of irreconcilable repugnancy controls implied repeal of a general by special statute. The subsequent
provision treating a phase of the same general subject matter in a more minute way may be intended to imply
repeal pro tanto of the repugnant general provision with which is cannot reasonably co-exist when there is no
inconsistency between the general and the special statute, the latter may well be construed as supplementary.22
The doctrine of implied repeal is based on the presumption that the legislature which must be deemed to know the
existing law did not intend to create any confusion in the law by retaining conflicting provisions on the statute book
and that, when the court applies this doctrine it does not more than give effect to the intention of the legislature in
the usual way by examining the scope and objects of the two enactments and by comparison of their provisions.
One must start with the presumption against repeal by implication and the absence of a repealing provision in the
later Act the intention not to repeal the existing earlier legislation is all the greater. This resumption is, however,
rebutted and a repeal is inferred when the provisions of the later Act that they cannot stand together.23
In Ali Hasan v Lt Governor, Delhi,24 the Court held that the Delhi Development Act, 1957, as amended by
Amendment Act, 1963, did not impliedly repeal the Land Acquisition Act, 1894, within the territory of Delhi, and both
the statutes could stand together. The Court observed:
The repeal must, if not express, flow from necessary implication as the only intendment. The provisions must be
wholly incompatible with each other so that the two provision operating together would lead to absurd
consequences which intention could not reasonably be imputed to the legislature. It is only when a consistent body
of law cannot be maintained without abrogation of the previous law that the plea of implied repeal should be
sustained. To determine if a later statutory provision repeals, by implication, an earlier one it is accordingly
necessary to closely scrutinise and consider the true meaning and effect both of the earlier and the later statutes.
Until this is done is cannot be satisfactorily ascertained if any fatal inconsistency exists between them. The
meaning, scope and effect of the two statutes, as discovered on scrutiny, determines the legislative intent as to
whether the earlier law shall cease or shall only be supplemented. If the objects of the two statutory provisions are
different and the language of each statute is restricted to its own objects or subject then they are generally intended
to run in parallel lines without meeting and there would be no real conflict though apparently it may appear to be so
on the surface.
In Syndicate Bank v Prabha D Naik,25 it was held that while implied repeal is not to be readily inferred but in the
contextual facts, upon scrutiny, it cannot but be held that in the wake of the factum of the Limitation Act coming into
existence from 1 January 1964, Article 535 of the Portuguese Civil Code cannot but be termed to be impliedly
repealed. It was further held that the legislature is supposed to be aware of the needs of the society and the existing
state of law. The Court observed:
There is no reason whatsoever to consider that the legislature was unaware of the existing situation as regards the
Portuguese Civil Laws with a different provision for limitation. If there was any intent of having the local law being
made prevalent there pertaining to the question of limitation only, there would have been an express exclusion and
in the absence of which no contra intention can be deduced, neither any contra inference can be drawn. The entire
civil code ought to be treated as a local law or special law including the provisions pertaining to the question of
limitation for enforcement of the right arising under that particular civil code and not de hors the same. A contra
approach to the issue will not yield to an absurdity but render the law of the land wholly inappropriate. The court has
to suppose that the government have a consistent design and policy, and intend nothing that is inconsistent or
incongruous. Prior statutes are held to be repealed by implication by subsequent statutes if the prior enactment is
special and the subsequent one is general. This rule must not be pressed too far. If a special enactment and a
subsequent general enactment are absolutely repugnant and inconsistent with one another, the courts have no
alternative but to declare the prior special enactment as repealed by the subsequent general Act. In all such cases
the legislative intention, rather than grammar or letter of the enactment, is the determining factor.
If the intention is found to be sweep away all previous orders and to establish one rule for all belonging to a class of
Page 3 of 4
Implied Repeal
persons that will be sufficient to get rid of any previous special provision.26 A repeal by implication is only effected
when the provisions of a later enactment are so inconsistent with or repugnant to the provisions of an earlier one
that the two cannot stand together.27 When an affirmative statute contains no expression of a purpose to repeal a
prior law, it does not repeal it unless the two Acts are in irreconcilable conflict or unless the later statute covers the
whole ground occupied by the earlier and is clearly intended as a substitute for it and the intention of the legislature
to repeal must be clear and manifest.28
In Aribunnisa Begum v Parry29 the Madras High Court did not accept the contention of the appellant that the
Portuguese Civil Code survived even after the enactment of the Limitation Act of 1963 because the Act of 1963 did
not expressly repeal the Code but only the Limitation Act of 1908. Dispelling the contention, the Madras High Court
relying upon the Supreme Court decision in Kanagavalliammal & Ors v R. Balasubramanian30 dispelled this
contention. The Court stressed on the fact that there could not be different laws of limitations for different parts of
the country and limitation law could not be described as a local or special law which was saved by the Limitation
Act.
In Shanta Talwar& Anr. vUnion Of India & Ors31 it was contended that since a special legislation had been enacted
for acquiring land for the Metro Railways; the provisions of the Land Acquisition Act for the purposes of acquiring
land for the Metro Railways were impliedly repealed The contention was raised by appellants whose lands had
already been acquired under the Land Acquisition Act. The Supreme Court pointed to the fact that there was
nothing in the Metro Railways (Construction of Works) Act, 1978 which barred the use of the Land Acquisition Act to
acquire land for the metro railways. The task of land acquisition could be undertaken under either legislation and
both statutes could subsist together hence it could not be said that the Metro Act had impliedly repealed the Land
Acquisition Act.
14 . JA Trivedi Bros v Union of India 1975 Jab LJ 404 ; Amali English Medium High School v Government of Andhra
Pradesh AIR 1993 AP 338 [LNIND 1993 AP 333]; Yogender Pal Singh v Union of India AIR 1987 SC 1015 [LNIND
1987 SC 92], 1987 Lab IC 707 [LNIND 1987 SC 92], (1987) JT 227 (SC), (1987) 54 Fac LR 225, (1987) 12 Del Rep J
147, (1987) 1 Cur LR 176 [LNIND 1987 SC 92], (1987) 9 (1) IJ Rep 98, (1987) 1 Serv LR 379, (1987) 1 SCC 631
[LNIND 1987 SC 92], (1987) 1 Lab LJ 337 [LNIND 1987 SC 92], (1987) 1 Supreme 193 [LNIND 1987 SC 92], (1987) 1
SCJ 487 [LNIND 1987 SC 92], (1987) 1 Cur CC 745, 1987 Cur Civ LJ 280 (SC); Rajendra Singh Sethi v State (1989)
Cr LJ 255 (Cal), (1988) 2 Cal HN 194, (1988) 92 CWN 670.
15 . Kanhaiyalal v Vilayat Khan AIR 1958 MP 63-64.
16 . Mercantile Finance Trusees and Agency Co of Australia v Hall (1893) 19 VLR 233, p 240; Melbourne Corpn v Barry
31 CLR 174, pp 186-87; Bridge v Bowen 21 CLR 582, p 634.
17 . Harshad S Mehta &Ors v State of Maharashtra (2001) 8 SCC 257 [LNIND 2001 SC 1951].
18 . Om Prakash Shukla v Akhilesh Kumar Sukla AIR 1986 SC 1043 [LNIND 1986 SC 706], 1986 Lab IC 796 [LNIND
1986 SC 706], (1986) All LJ 662, 1996 (2) Supreme 284, (1986) 1 Serv LR 699, (1986) 2 Lab LN 38, (1986) 1 SCJ 606
[LNIND 1986 SC 706], 1086 SCC 644 (Lab), (1986) 2 UJ 184 (SC), 1986 Supp SCC 285, (1986) 3 Serv LJ 235.
19 . Ishawar Chandra Chitalangia v State 81 Cal WN 690, p 692.
20 . (1977) PLR 246.
21 . Ibid.
22 . Municipal Corpn of Delhi v Shiv Shanker [1971] 3 SCR 607 [LNIND 1971 SC 95], pp 611-12, per Dua J.
23 . Municipal Council, Palai v Joseph TJ AIR 1963 SC 1561 [LNIND 1963 SC 43], p 1565; followed in Ganeshlal v board
of Revenue (1966) ILR Raj 577, 1066 Raj LW 396; Joseph Pothan v State of Kerala AIR 1965 SC 1514 [LNIND 1965
SC 22]; Ratanlal Adukia v Union of India AIR 1990 SC 104 [LNIND 2003 SC 686]; (1989) (3) JT 148 (SC), 1989 ACJ
1080, (1989) 3 SCC 537 [LNIND 1989 SC 343]; overruling Assam Cold Storage v Union of India AIR1971 Assam 69,
Hindustan Machine Tools v Union of India AIR 1985 Mad 130 [LNIND 1983 MAD 376].
24 . Ibid.
Page 4 of 4
Implied Repeal
25 . (2001) 4 SCC 713 [LNIND 2001 SC 803].
26 . Ramji v Dist Superintendent, Western Railway AIR 1957 MB 155, p 158; M Krishna Panicker v VM Appukuttan Nair
(1963) 1 Ker LT 725.
27 . Kutner v Phillips [1891] 2 QB 267; quoted in Custodian, Evacuee Property v Simla Banking and Industrial Co Ltd
(1951) 53 PLR 184, p 187; Ishwar Chandra Chitalangia v State 81 CWN 690 ; Ali Hasan v Lt Governor Delhi (1997) 79
PLR 246 ; Zaverbhai Amardas v State of Bombay AIR 1954 SC 752 [LNIND 1954 SC 123]; TS Baliah v TS Rangachari
AIR 1969 SC 701 [LNIND 1968 SC 381]; Municipal Board, Bareilly v Bharat Oil Co AIR 1990 SC 548 [LNIND 1989 SC
677]; Raj Kumar v Food Corpn of India AIR 1990 Raj 64.
28 . Red Rock v Henry 27 L Ed 251, p 253, per Woods J; circumstances may, however, justify conclusion of an earlier one
is a continuation rather than an abrogation and re-enactment of the earlier Act: Posadas v National City Bank 80 L Ed
351, p 356, 296 US 497, per Sutherland J; United State v Tynen 28 L Ed 153, p 154, per Field J.
29 . Second Appeal No.750 of 2009 decided on 28.9.2011 http://www.indiankanoon.org/ doc/121317920/ last visited 7th
November 2013.
30 . (2008) (5) SCC 212 [LNIND 2008 SC 753].
31 . AIR 2008 SC 1991 [LNIND 2008 SC 753], 2008 (5) SCR 511, 2008 (5) SCC 212 [LNIND 2008 SC 753].
End of Document
Onus in Case of Repeal by Implication
NS Bindra
Repeal and Savings
Repeal by implication is not favoured and such interpretation is not to be adopted unless it is inevitable. a
presumption classically founded on the doctrine that the Parliament, when enacting a law, is presumed to picture or
keep in view the whole body of the existing law on the subject and, therefore, if a repeal of the existing law is
intended the Parliament would much rather expressly specify the offending provision than leave it to the not-too-
certain rule of implied repeal during the interpretative process by the courts.32 A sufficient Act ought not to be held
to be repealed by implication without some strong reason. It is a reasonable presumption that the legislature did not
intend to keep really contradictory enactments on the statute book or on the other hand, to effect so important a
measure as the repeal of a law without expressing an intention to do so. Such an interpretation, therefore, is not to
be adopted, unless it is inevitable. Any reasonable construction which offers an escape from it is more likely to be in
consonance with the real intention.33 Repeal by implication is never to be favoured; it is no doubt the necessary
consequence of inconsistent, legislation, but such consequence should not ensue unless absolutely necessary.34
Unless two Acts cannot exist at the same time, a repeal will not be implied, and special Acts are not repealed by
general Acts, unless there is a necessary inconsistency in the two Acts standing together.35
Where Parliament passed a later Act without reference to an earlier Act, and that earlier Act is one which has been
in force for a long time and is, therefore, well-known, it seems reasonable that we should try to construe the two
consistently if it is possible to do so. The language of every statute must be construed as far as possible in
accordance with the terms of every other law which it does not in express terms modify, vary or repeal. It is not
permissible to revoke or alter an enactment by the process of construction when the words in their ordinary
meaning may be capable of proper operation, without such revocation or alteration. Repeal by implication is seldom
favoured and it may be reasonably presumed that the legislature does not usually intend to keep on the statute
book enactments which are contradictory of or in conflict with each other. The legislature must also be presumed
not to affect an important measure like the repeal, or amendment of a law without expressing a clear and
unambiguous intention to do so. The interpretative conclusion of implied repeal, unless inevitable, should be
avoided. The primary function of the courts, while interpreting apparently conflicting provisions is to avoid possible
overlapping, conflict, implied repeal or abrogation. Any reasonable construction which offers an escape from implied
repeal must be considered to be in consonance with the true intention of the legislature.36 An enactment or a rule
having the force of law cannot be held to be repealed by implication by a later enactment or statutory rules unless
the provisions of the earlier enactment or rule are plainly repugnant to those of the subsequent enactment or rule
and the entire subject matter of the first is taken away by the second. Repeal by implication is not to be lightly
inferred and the mere inclusion in a later statutory provision of a portion of the subject matter contained in an earlier
statutory provision cannot by itself have the result of a repeal of the earlier provisions.
In SIELR Organisation v State of Madras,37 it was argued that the Minimum Wages Act, 1948, impliedly repealed
the Industrial Disputes Act, 1947, and hence the Government could not refer a matter relating to rates of wages to
the Tribunal constituted under the 1947 Act, when the 1948 Act had established a Committee to look into matters
pertaining to minimum wages. The Court held that since the areas of jurisdiction were not coterminous, there was
no scope for implied repeal. The Court observed:
It will be noticed that it is an essential condition for the application of the rule of implied repeal that there should be
identity of subject-matter in the two enactments... The object of Act 14 of 1947 is to prevent strikes and lock outs, so
that production might not suffer and consistently with that object, a reference under the Act could be made only
when there is a dispute actual or apprehended. On the other hand, the object of Act 11 of 1948 is to protect
Page 2 of 3
unorganised and dumb labour from being exploited and for achieving that object the Government is to take action
suo motu and fix wages within the time mentioned in the statute. While the adjudication of disputes tinder Act 14 of
1947 is to be by a Tribunal exercising judicial functions, the fixation of wages by the Government under Act 11 of
1948 is administrative in character.
Repeal by implication is the consequence of contradictory or inconsistent legislation and should not be imputed to a
legislative or rule-making authority unless one is driven to do so. Courts do not look with favour upon implied
repeals, and the presumption is always against the intention of the legislature to repeal legislation by implication,
which is accentuated where the various statutes were enacted at the same session of the legislature.
Consequently, the intent to repeal must clearly appear, and such repeal will be avoided if at all possible. This
presumption against the intent to repeal by implication rests upon the assumption that the legislature enacts laws
with a complete knowledge of all existing laws pertaining to the same subject so that the failure to add a repealing
clause indicates that the intent was not to repeal any existing legislation. This presumption, however, is overthrown
if the new law is inconsistent with or repugnant to the old law, for the inconsistency or repugnancy reveals an intent
to repeal the existing law. Similarly, when a statute specifically repeals certain Acts or parts of an Act it will not be
presumed that the legislature intended to repeal any Act or any part of an Act not mentioned.38 Even in a case
where there is repeal, it need not extend to all the provisions of an earlier enactment and certain provisions of the
earlier enactment may survive the repeal or amendment.
In this context Crawford in his Statutory Construction,39 says:
Of course, where a repeal is effected through implication, the latter enactment thus affecting pre existing law must
be subjected to close scrutiny in the light of its own provisions and those of the law apparently abrogated in whole
or in part. The construction of the new law becomes an important consideration, since its meaning and scope will
determine whether a repeal takes place and if so, its extent. And usually one of two questions will arise: (1)
Whether the new law is intended as a substitute for the old; or (2) whether the new law is irreconcilably inconsistent
with the old, so that the former is thereby terminated. In brief, the problem will be simply to determine what is the
legislative intention-whether the old law shall cease or whether it shall be supplemented.
The entire problem of determining the extent to which existing legislation is repealed by subsequent statutes
ultimately resolves itself into one of legislative intent. There is indeed authority to show that where the intention of
the legislature was apparent, that the subsequent Act should not have such an operation, there, even though the
words of such statute, taken strictly and grammatically, would repeal a former Act, the courts of law, judging for the
benefit of the subject, have held, that they ought not to receive such a construction.41
But when the second Act was passed reciting the first and saying that it was not repealing it, if it enacted a rule that
was contrary to it, it had really the effect of repealing it, and was the same thing as if it has been repealed.42 It is no
doubt true that a law is not repealed by becoming obsolete but when it no longer served any useful purpose the Act
must be deemed to have been impliedly repealed.43
32 . Chautala Transport Society v State of Punjab AIR 1962 Punj 94, 98.
33 . Maxwell, Interpretation of Statutes, eleventh edn, p 162; Kanhaiyalal v Vilayat Khan AIR 1958 MP 63-64.
34 . Dobbs v Grand Junction Waterworks Co (1883) 9 App Cas 9 ; Hakam Khudayar v Emperor AIR 1940 Lah 129,
(1940) ILR Lah 242 ; Shridhar v Ganesh 1937 NLJ 133.
35 . Kutner v Phillips [1891] 2 QB 267, p 271.
36 . Jullundhar TC Society v State of Punjab AIR 1959 Punj 34, p 36; Khimji Poonja v Ramanlal AIR 1960 Bom 532; TS
Baliah v TS Rangacari AIR 1969 Mad 145 [LNIND 1968 MAD 37].
37 . AIR 1955 Mad 45 [LNIND 1953 MAD 197].

Page 3 of 3
38 . Crawford, Construction of Statutes, pp 630-31; Kanhaiyalal v Vilayat Khan AIR 1958 MP 63-64.
40 . Sutherland, Statutory Construction, third end, vol I, p 454.
41 . Williams v Pritchard (1790) 100 ER 862.
42 . Boobs v Grand Junction Waterworks Co [1883] 9 AC 49 , per Lord Blackburn.
43 . Jelejan Hormosji v State of Andhra Pradesh AIR 1965 AP 288 [LNIND 1964 AP 199], p 292, per Satyanarayana Raju
J: after the extension of the Code of Civil Procedure 1908, to the territories forming part of the State of Hyderabad, the
Hyderabad suits against Government Act 5 of 1320 Fasli J, was no longer serving the purpose for which it was
enacted; Commissioner of Land Administration, Chepauk, Madras &Ors v Executive Officer, Arulmigh
Theagarajaswamy Devasthana, Thiruvarur(1991) 1 Mad LJ 1.
End of Document
Test of Implied Repeal
NS Bindra
Repeal and Savings
The test as to whether there has been a repeal by implication by subsequent legislation is this: are the provisions of
a later Act so inconsistent with or repugnant to the provisions of an earlier Act that the two cannot stand
together?44 The test to be applied in considering whether there has been a repeal by implication is very clearly
stated by Smith J, in Kutner v Phillips:45
Now a repeal by implication is only effected when provisions of a later enactment are so inconsistent with or
repugnant to the provisions of an earlier one, that the two cannot stand together, in which case the maxim, leges
posteriors contrarias abrogant applies. Unless two Acts are so plainly repugnant to each other, that effect cannot be
given to both at the same time, a repeal will not be implied, and special Acts are not repealed by general Acts
unless there is some express reference to the previous legislation or unless there is a necessary inconsistency in
the two Acts standing together.46
As a general rule it is not open to controversy, that where a new statute covers the whole subject matter of an old
one, adds offences, and prescribes different penalties for those enumerated in the old law, the former statute is
repealed by implication, as the provisions of both cannot stand together.
Basing themselves on the authoritative pronouncements of the Supreme Court, their Lordships of the Calcutta High
Court in the case of Ishwar Chandra Chitalangial v State,47 laid down the following three tests:
(i) Where there is a direct conflict between the two provisions.
(ii) Whether Parliament intended to lay down an exhaustive code in respect of the subject matter replacing the
Act of the state legislature.
(iii) Whether the law made by Parliament and the law made by state legislature occupy the same field.
In Public Prosecutor v Ranganayakulu Chettiar,48 the accused was charged under Sections 249 and 338 of the
Madras District Municipalities Act, 1920, for using a rice mill within three miles of Salem Municipality without license.
It was urged on his behalf that Section 249 had been repealed, because local boards had similar powers of
licensing under Section 193 of the Madras Local Boards Act, 1920. Jackson J. repealed the contention and
observed:
Each local authority is invested with similar power because each authority has similar responsibility. To take the
present case the Health Officer of the Municipality, and the Health Officer of the District may each find that lung
disease is prevalent and each trace to the rice mill and each ask his governing body to take necessary steps. The
point in Maxwell which the learned magistrate overlooks is that for one statute to cancel another they must be
mutually destructive, for example, the legislature would not have constituted two distinct bodies to name the streets
in a town. The question is whether the legislature can be said not have intended the two rights to exist together.
There is no reason to presume that the legislature did not want both the Municipality and the District Board to be
vigilant in the interest of public health. In fact, the natural presumption is exactly the other way.
Where the question arises whether a rule framed under an Act of the Indian legislature has, by implication, repealed
a bye-law made under the authority of a local legislature, the test to be applied to determine the question raised is,
whether there is repugnancy between the two provisions?49
In State v Dinanath,50 the Court held that cases where the special Act was not a complete code in itself repeal by
implication would not be inferred. Inasmuch as the Press (Objectionable Matter) Act 1951, does not provide for
Page 2 of 2
punishment for printing and publishing obscene matter, which is provided for by s 292, IPC, but provides only
against the repetition of such publication. The ingredients of the offence laid down in s 292, IPC cannot be said to
have been repealed by the Act of 1951.Since the two Acts can subsist together, the special law does not repeal the
general provision.
In State v Raj Kumar,51 the matter before the Court was whether the Prevention of Corruption Act, 1947, had the
effect of impliedly repealing Section 409 of the Indian Penal Code, 1860. The Court began by observing that there
was no express repeal, and further observed that there was no repugnancy or inconsistency between the two
enactments. The Court held that as one was enacted as a supplementary measure to the other with a different and
special object, the two provisions could co-exist side by side even though the one may, to some extent, overlap with
the other.
44 . West Ham (Church Wardens) v Fourth City Mutual Building Society [1892] 1 QB 654, p 658; Kutner v Phillips [1891] 2
QB 267; Wallwork v Fielding [1922] 2 KB 66; Karsandas Ramji v Karsanji Kalyanji AIR 1953 Sau 113; Municipal
Council, Palai v TJ Joseph AIR 1963 SC 1561 [LNIND 1963 SC 43], p 1562; TMLS Baradari v Improvement Trust AIR
1963 SC 976 [LNIND 1962 SC 144], p 979; Arthur v Homer 24 L Ed 811-12, per Hunt J.
45 . [1891] 2 QB 267, pp 271-72; Yarmouth Corpn v Simmons 10Ch D 518, p 527; Powell v Apollo Candle Co 10 AC 282,
p 291; Gwalior RMS Co v Union of India AIR 1960 MP 330, p 344: statute imposing taxation and one granting
exemption therefrom can stand together.
46 . State of Orissa v MA Tulloch and Co AIR 1964 SC 1284 [LNIND 1963 SC 191].
47 . 81 CWN 690.
48 . (1936) ILR 59 Mad 845, AIR 1927 Mad 602 [LNIND 1927 MAD 92]; see also Daw v Metropolitan Board of Works
(1862) 31 LJPC 223: where two statutes give authority to two public bodies to exercise powers which cannot
consistently co-exist with the object of the legislature, the earlier must necessarily be replaced by the later stature; to
the same effect is Great Central Gas Consumers Co v Clarke (1862) 32 LJPC 41: inconsistent rates.
49 . Manager, Indian Motor Taxi Cab Co v Corpn of Calcutta AIR 1921 Cal 107.
50 . AIR 1956 Punj 85.
51 . AIR 1956 Pepsu 1; State v Gurcharan Singh AIR 1952 Punj 89 dissented from.
End of Document
Effect of Repeal on Transactions Completed
NS Bindra
Repeal and Savings
Transactions that have complete rights that have been acquired and penalties that have been incurred while a
statute is in force, are not (in the absence of an express provision to the contrary) affected by the mere fact of the
statute having Ceased to be in force.52 Although the effect of repealing a statute is to obliterate it as completely as
if it has never been passed, the rule must be taken with the qualification that it does not deprive persons of vested
rights acquired by them in actions duly determined under the repealed law.53 This rule seems to be founded not
only on considerations of convenience, but also of reason and justice. It applies with equal force to statute that had
been expressly repealed and to temporary statutes the terms of which has expired.54 In every case of repeal of an
existing statute or existing provision of the statute, the question for examination would be whether any vested right
is sought to be affected by the repealing statute and whether there is an intention in the repealing statute to keep
alive the rights under the earlier statute.55
In Stevenson v Oliver,56 the question that arose was the following: By Geo 4, c 133, s 4, it was provided that every
person who held or thereafter should hold a commission, or warrant as surgeon, or assistant surgeon in His
Majestys navy or army, should be entitled to practice as an apothecary in any part of England or Wales without
having undergone the examination or received the certificate required by a previous statute. The Act was in terms
temporary and was to continue until 1 August 1826. The question arose whether the certificate of the plaintiff who
had not passed the requisite examination, but who held a warrant as an assistant surgeon in the navy during the
period when the expired Act was in force enabling him to practise as an apothecary continued to be valid even after
the expiry of the Act. It was held that the certificate acquired under the earlier Act continued to be valid.
It is a general rule that when the legislature alters the rights of parties by taking away or conferring any right of
action, its enactments, unless in express terms they apply to pending action, do not affect them. But there is an
exception to the rule, namely, where enactments merely affect procedure, and do not extend to rights of action. It is
perfectly settled that if the legislature forms a new procedure, that instead of proceeding in this form or that you
should proceed in another and a different way, clearly then bygone transactions are to be sued for and enforced
according to the new form of procedure.57
The normal effect of a repealing statute is to obliterate it from the statute book as completely as if it had never been
passed; it must be considered as a law that never existed. But to this rule an exception is engrafted by the
provisions of s 6 of the General Clauses Act.58
52 . Section 6, General Clauses Act 1897.
53 . Gopalan v Sippora (1951) Ker LT 337; Keshavan v State of Bombay AIR 151 SC 128, p 131; State of Punjab v Mohar
Singh AIR 1955 SC 84 [LNIND 1954 SC 136]; Ramkrishna Mandal v Dhankisto Mandal AIR 1969 SC 204 [LNIND
1968 SC 157]; Gujarat Electricity Board v Shantalal R Desai AIR 1969 SC 239 [LNIND 1968 SC 197].
54 . Jogendra v Superintendent of Dum Dum Special Jail (1933) ILR 60 Cal 742, AIR 1933 Cal 280; Stevenson v Oliver
(1841) 10 LJ Ex 338, 151 ER 1024.
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55 . Sainuddin v Pokkunhi (1977) Ker LT 516.
56 . 151 ER 1024, p 1027; Krishna Chandra v Sushila AIR 1951 Ori 105, p 109: a legislative enactment, which reveals a
previous law either partially or wholly, cannot affect vested rights acquired under decree; Lakshman Rao Krishnaji v
Balkrishna Rangnath (1915) ILR 39 Bom 617, p 621; Lemm v Mitchell 1912 AC 400, p 406; following Kay v Goodwin
(1830) 6 Bing 576; Jagannadhan v Dist Collector, Kurnool AIR 1966 AP 59 [LNIND 1964 AP 206].
57 . Re Suche & Co Ltd [1875] 1 Ch D 48; Gardner v Lucas [1878] 3 AC 582 ; Kedar Nath v Tarini Prasad AIR 1921
Pat 185-86; Eapen Chacko v Provident Investment Co Ltd (1977) Ker LT 1 [LNIND 1976 SC 411] (SC).
58 . Sadasheo v Hemari AIR 1958 Bom 507 [LNIND 1958 BOM 25], per SP Kotaval J.
End of Document
Effect of Repeal on Vested Rights and Procedure
NS Bindra
Repeal and Savings
Effect of Repeal on Vested Rights and Procedure
In Jatindra Nath De v Jetu Mahato,59 the question before the Court was whether in case of a transfer which
occurred before the commencement of the amended Bengal Tenancy Act of 1938, an immediate landlord who had
acquired a right to apply for pre-emption under Section 26F of the old Act, could make an application under that
Section after the new Act came into force. The old provision read as follows: The immediate landlord of the holding
or the transferred portion or share may, within two months of the service of notice issued under Section 26C or 26E,
apply to the Court that the holding or portion or share thereof shall be transferred to himself.
The Court ruled that the immediate landlord could apply under the old procedure. The Court observed:
If rights and procedure are both altered by an amending or repealing statute, then if the rights accrued under the
previous enactment are saved, it would seem to be consequential that the old procedure is saved as well unless the
new Act makes the new procedure applicable to old right. If such be not the case, the right would seem to be saved
to no purpose, for if a suit be brought under the general law, it is likely to be met successfully by the plea that a
special right created by a statute can only be enforced by the special procedure prescribed.
The Court observed that the legislature could not have contemplated such a result. Hence, it ought to be one of the
general rules of construction that if rights and procedure were both altered but rights accrued under the repealed
enactment were saved, then, in the absence of an intention to the contrary expressed or necessarily implied in the
new statute, it would only be proper to interpret the intention of the legislature to be that the old procedure would
subsist for the enforcement of the saved right i.e. accrued rights having been saved and the new Act not having
abrogated the old procedure as respects those right, nor made the new procedure applicable to them, the old
procedure was consequently saved, as the only possible machinery for enforcing those rights.
In Badruddin v Sitram,60 the Court was considering Clause 15 of the Letters Patent of the Bombay High Court
which had altered the provisions of appeal, to the effect that no appeal from the judgment of one Judge of the Court
would lie to a Division Bench, if it is made in the exercise of second appellate jurisdiction, except in any case where
the single Judge declared it fit for appeal.The question was whether this would affect the right to appeal of a
prospective appellant, against whom a single judge gave a decision prior to Clause 15 coming into force. It was
held that the alteration in the Clause did not entirely abolish a former right of appeal. It merely restricted it in a
reasonable manner. Hence, the appellant could exercise the right of appeal if he persuaded the judge that is was a
fit case for appeal.
59 . AIR 1946 Cal 339, p 347.
60 . AIR 1928 Bom 371, p 373, (1928) ILR 52 Bom 753: it is really more on the footing of the alteration made in s 195, Cr
PC by Act 18 of 1923; inNataraja Pillai v Rangaswami Pillai (1924) ILR 47 Mad 384, AIR 1924 Mad 657 [LNIND 1923
MAD 315], was held to be merely a change in procedure.
End of Document
Repeal of Repealing Enactment
NS Bindra
Repeal and Savings
Under the English Common law when a repealing enactment was repealed by another statute, the repeal of the
second Act revived the former Act. But this rule does not apply to repealing Acts passed since 1850, and now if an
Act repealing a former Act is itself repealed, the last repeal does not revive the previously repealed Act unless
words are added reviving it. The present rule is the result of the statutory provisions introduced by the interpretation
Act of 1889, but though the courts in India are not bound by the provisions of any English statute, they can still
apply the English common law if it appears to be reasonable and proper. But it may be noted that even according to
the common law doctrine, the repeal of the repealing enactment would not revive the original Act if the second
repealing enactment manifests an intention to the contrary.61 If an Act which repeals former statutes or displaces
the common law, be repealed by an Act which contains nothing in it that manifests the intention of legislature that
the former laws shall continue repealed, the former laws will by implication be revived by the repeal of the repealing
Act62 but the whole matter is one of the intention of Parliament. If the last repealing Act or any statute that may
properly be read with it, shows an intention that the statute first repealed or the common law first displaced shall
continue so repealed or displaced, then he who shows that has rebutted the presumption of revival.63
In Re Jewa Nathooq & Others,64 Ordinances III and V of 1914 had been embodied in the Emergency Legislation
Continuance Act, 1915. It was argued that Section 11 of Ordinance III which ousted the jurisdiction of the courts,
was ultra vires. Chaudhuri J, stated the matter thus:
His argument is that s 29 (26 Geo, III, C 57) known as the East India Companys Act made residents in India
amenable to the courts and although that section was repealed by Act XI of 1872, the Repealing Act was ultra vires
that inasmuch as Act XI of 1872 has again been repealed, s 29 must be considered as restored. It is correct that
where an Act is repealed and the repealing enactment is repealed by another, which manifests no intention that the
first shall continue repealed, the common law rule was that the repeal of the second Act revived the first. But this
rule does not apply to repealing Acts passed since 1850. The last repeal does not now revive the Act or provisions
before repealed, unless words be added reviving them.65 The same principle or rule of law applies to this country.
Section 3 of the General Clauses Act 1 of 1868, expressly provides for the purpose. The same is the effect of s 6
and 7 of the General Clauses Act, X of 1897. Act XI of 1872 was repealed and re-enacted with modifications by Act
XXI of 1879, which after various amendments was again repealed and re-enacted in a modified form by Act V of
1903. I do not find anything in these subsequent Act reviving s 29 of 26 Geo III, C 57. Nor does it seem to me to
have been necessary to revive the section as various Acts and statutes had come into force making the persons
mentioned in that section amenable to the Courts of justice.
In Smith v Smith,66 the Court had to consider the effect of the repeal of the Indian Independence Act, 1947, on the
conferral of jurisdiction on Indian Courts under the Indian and Colonial Divorce Jurisdiction Act, 1926, which was
repealed by the 1947 Act.
The Court observed:
If the jurisdiction conferred on a court by a certain Act is sought to be taken away, not by amending that Act by
passing as subsequent Act, and the subsequent Act is later on repealed the ban so placed on jurisdiction by the
subsequent Act is thereby removed and the jurisdiction of the courts rebounds to its original size. Thus, the
jurisdiction conferred on the Indian Courts under s 1 of the Indian and Colonial Divorce Jurisdiction Act 1926 but
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taken away by s 17 (1) of the Indian Independence Act would normally have revived after the repeal of the Indian
Independence Act, but since by virtue of Article 225 the power of the High Courts has been kept confined within the
limits which existed immediately before the commencement of the constitution, the Indian High Courts have now no
jurisdiction to grant decrees for dissolution of marriage of couples domiciled outside India.
Hence, by the operation of Article 225, the ordinary rule of revival of the original provision if the repealing Act was
repealed, was defeated. The Court accordingly held that a decree of dissolution could not be granted.
61 . Ameerunnissa Begum v Mehboob Begum AIR 1955 SC 352 [LNIND 1955 SC 173], p 362; reversing (1954) ILR Hyd
658: by a firman, the Nizam constituted a special commission to investigate and submit a report to him in case of
succession of Nawab Waliuddowlah which was transferred to the commission from the file of Darul Qaza court. A
firman, dtd 26 June 1947, declared the report of the Commission worthy of implementation and directed it to be
implemented. After police action the previous order was withdrawn by a firman, dtd 24 February 1949 and the decision
of the special commission was set aside in respect of certain claimants. This firman was again revoked by a fresh
firman, dtd 7 September 1949, and the case was referred to another person for opinion and report. It was held that all
the proceedings subsequent to the withdrawal of the suit instituted by the claimants in Darul Qaza court must be held to
have been wiped out and the suit must consequently be held to be still pending; Syed Shamsuddin v Munira Begum
AIR 1963 AP 459 [LNIND 1962 AP 170].
62 . GP Nayyar v State (Delhi Administration) AIR 1963 AP 459 [LNIND 1962 AP 170].
63 . Marshall v Smith 4 CLR 1617, p 1634.
64 . (1917) ILR 44 Cal 459-60; Mehdi (Mhd) v Sakinabai (1913) ILR 37 Bom 393: remedy once barred cannot be revived
by a repealing Act; Nepal Chandra Roy v Niroda Sundari Ghose (1912) ILR 39 Cal 506; Chidambaram Chetty v
Karuppan Chetty 8IC 543; Krishna Mohan Bose v Okhilmoni (1899) ILR 3 Cal 331.
65 .Section 52 and 53 Vict, c 63, s 11.
66 . AIR 1954 All 624 [LNIND 1954 ALL 46]; Ameerunnissa Begum v Mehboob Begum AIR 1965 SC 352, p 362: where
the principle was applied.
End of Document
Effect of Repeal67
NS Bindra
Repeal and Savings
Effect of Repeal67
Whenever an Act is repealed it must be considered, except as to transactions past and closed, as if it had never
existed. The effect thereof is to obliterate the Act completely from the record of Parliament as if it had never been
passed; it never existed except for the purpose of those actions which were commenced, prosecuted and
concluded while it was an existing law. Repeal is not a matter of mere form but is of substance, depending on the
intention of the legislature. If the intention indicated either expressly or by necessary implication in the subsequent
statute was to abrogate or wipe off the former enactment wholly or in part, then it would be a case of total or pro
tanto repeal.68
Repeal connotes abrogation or obliteration of a statute by another. Repeal is not a mere matter of form but one of
substance, depending upon the intention of the legislature. If the intention indicated expressly or by necessary
implication in the subsequent statute was to abrogate or wipe off the former enactment wholly or in part then it
would be a case of total or pro tanto repeal. If the intention was merely to modify the former enactment by
engrafting an exception or by superseding conditions, or by restricting, intercepting or suspending its operation,
such modification would not amount to repeal.69 No judge ever laid down as law that where a particular clause in
an Act of Parliament is repealed, the whole Act must be read as if that clause had never been enacted; all that can
be said is that the clause is to be taken as if it never had been enacted. Bramwell LJ, expressed himself thus:
It is argued that you cannot look at the repealed portion of the Act of Parliament to see what is the meaning of what
remains of the Act. I know that it is not the argument of the Solicitor-General, but that opinion has been expressed.
I, however, dissent from it. If it were an accurate opinion, this consequence would follow: that an Act of Parliament
which at one time had one meaning would by the repeal of someone clause in it have some other meaning.
I...should say that where an Act or parliament has been repealed it is as to all matters completed and ended at the
time of its repeal as though it had never existed as a governing law with respect to these subject-matters. The
judgments of the majority in the Exchequer Division lay down that the moment an Act of parliament is partly
repealed we cannot look at the repealed part for any purpose, but that the repealed part must be regarded as if it
had never been enacted. I cannot help thinking that that part of the judgment is not sustainable, for what we have to
consider is not what was the construction of the first statute, but what is the effect of the repealing statute. We
cannot tell what is the effect of the latter without looking at the meaning of the statute which it has repealed. We
must treat it as we treat all statutes for the purpose of construing them; we must look at the facts which were
existing at the time the Act was passed, to see what was its meaning.
In Ray v Goodwin,70 the Court observed:
I take the effect of repealing a statute to be to obliterate it as completely from the records of the parliament as if it
had never been passed; and it must be considered as a law that never existed, except for the purpose of those
actions which were commenced, prosecuted and concluded whilst it was an existing law.
In Attorney-General v Lamplough,71 Kelly CB.observed:
Where an Act of Parliament repeals a clause of the Act of Parliament, and then dicta in Surtes v Ellison,72 and Ray
v Goodwin,73 apply, that where an Act of Parliament is repealed, the effect of the repeal is that it is to be taken as if
the statute had never been enacted, except as to transactions begun or prosecuted while it was existing law.
In Mercury Press v Ameen Shacoor,74 the Karnataka High Court considered the effect of Section 70 of the
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Effect of Repeal67
Karnataka Rent Act, 1999, on pending proceedings for eviction filed under the Karnataka Rent Control Act, 1961.
The two questions being considered by the court were:
(i) What is the effect of repeal of Karnataka Rent Control Act, 1961 on the pending proceedings which were
initiated under the Act of 1961 with regard to premises to which the Karnataka Rent Act 1999 did not
apply? and;
(ii) What was the effect of repeal of the Karnataka Rent Control Act 1961 in regard to orders of eviction
passed under the said Act before such repeal?
The new Act had repealed the old Act subject to certain restrictions.75Section 6 of the Karnataka General Clauses
Act relating to repeals was to have effect subject to restrictions relating to cases which had been transferred.
Keeping these in mind the court reiterated:
... if any Act is repealed, without specifying the consequences of the repeal, Section 6 of the General Clauses Act
will apply and the repeal will not affect any legal proceedings or remedy in respect of any right, privilege, obligation
and liability acquired, accrued or incurred under the repealed Act and any legal proceedings or remedy may be
instituted, continued or enforced as if the repealing Act has not been passed. But, where the repeal is accompanied
by fresh legislation on the same subject, the provisions of the new Act will have to be looked into to determine
whether and how far the new Act evinces a contrary intention affecting the operation of Section 6 of the Karnataka
General Clauses Act.
The court considered Section 70 (2)(b) of the new Act and held:
... the moment the rent control law ceased to apply to a premises (as in the case of non-residential premises to
which the old Act applied the new Act does not apply), the landlord becomes entitled to sue for possession/eviction
of the tenant under the general law. Though the old Act did not confer any rights on a landlord but only restricted
the absolute right of the landlord under the provisions of the Transfer of Property Act, if an order of eviction has
already been passed under the old Act, then the right to evict the tenant has been acquired by the landlord and a
corresponding obligation or liability had been incurred by the tenant to vacate the premises or be evicted from the
premises, under the order of eviction.
Repeal How Affects Inchoate and Vested Rights
In order to see whether the rights and liabilities under the repealed law have been put an end to by the new
enactment, the proper approach is not to inquire if the new enactment, has, by its new provisions, kept alive the
rights and liabilities under the repealed law but whether it has taken away those rights and liabilities. The absence
of a saving clause in a new enactment preserving the rights and liabilities under the repealed law is neither material
nor decisive.76
In Amar Singh v RL Aggarwal,77 the Court was consideringwhether a sale by an agriculturist to a non-agriculturist
effected during the validity of the Punjab Alienation of Land Act was liable to be treated as a mortgage after the
repeal of that Act. When the Alienation of Land Act was in force, the sale of land by an agriculturist in favour of a
non-agriculturist was a transaction of sale, but it could not take effect as a full-fledged sale unless and until sanction
was given to it by the Deputy Commissioner. This sanction could have been given within 20 years of the sale,
according to Section 14 of the Act. However, prior to the elapsing of 20 years of the particular sale in question, the
Act was repealed as being ultra vires the Constitution. Hence, the Court was called upon to evaluate the effect of
the repeal on the sale. The Court observed:
It is a well-settled rule of interpretation that an unqualified repeal of a statute, conferring civil rights or powers
operates to deprive the citizen of all such rights or power which at the time of the repeal are inchoate, incomplete or
unperfected or which have not accrued or become vested. Of course, rights which have become vested, are not
extinguished in the absence of express words to that effect, and a construction of a statute is always avoided,
where the result would be to impair contracts or vested rights, and for this purpose, a repealing statute would not be
given a retrospective operation. If the right acquired under a repealed Act has not developed into a jus in rem and
has not yet fully matured and is merely continuing as a jus ad rem, not having progressed beyond an inchoate
statute, it cannot survive the repealed Act, and must fall with it, unless expressly saved. The distinction between a
jus in rem, a right in a thing which implies an absolute dominion, and a jus ad rem, a right to a thing which signifies
an imperfect right, assumes considerable importance in relation to survival, when the statute under which a right
has been created, is unconditionally repealed.
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Effect of Repeal67
Hence, the Court held that after the repeal of the Act, the person to whom the sale had been made did not have a
right to seek the sanction, and the transaction would be considered to be a usufructuary mortgage.
Effect of Repeal of the Parent Act on Bye-Laws
In Watson v Winch,78 it was held that where bye-laws had been made under powers conferred by a section of an
Act, the repeal of the section abrogates the bye-laws unless they are preserved by the repealing Act by means of a
saving clause or otherwise but, this was subject to the provisions of Section 24 of the General Clauses Act, 1897,
which provides for continuance of rules, etc, in certain cases.79 Where a statute is repealed and re-enacted in a
wider form, the old rules in so far as they are continued are not thereby enlarged. Similarly, where there is a
delegation of power under a rule by the government, the power does not acquire wider scope in the event of the
rule being subsequently amended.80 A different result would follow where, from other sections which were not
repealed, it was manifest that all the Parliament intended to do was to revoke the power to make further bye-laws,
leaving the existing bye-laws in force, subject to their liability to be amended, varied or revoked under powers
conferred by other section contained in the Act at the time of the repeal or introduced into it by amendment at that
time.81
In Mohan Agarwal v Union of India,82 the Court had to consider whether the Bengal Army Regulation Governor
General dated September 12, 1836, continued to be the law in force in India even after the enforcement of the
British Statutes (Application to India) Repeal Act, 1960. The question had arisen in the context of notices of
resumption issued by the Union of India exercising the right of resumption under the grants on the basis of which
the petitioners were holding the lands. The Court observed:
The general rule is that when a parent Act is repealed, all laws made thereunder stand repealed. The effect of
repeal is to dry up the source of power. Repeal of an enactment only means that the power to create new law
thereunder is abolished and no further law in exercise of that power can be made. If something has emerged in
exercise of that power the source of which has been dried, it can continue to remain as an independent unit or may
die with the Parent Act depending on the nature of the source of power. If the source of power is a constitution Act,
the law survives as an independent unit; if the source of power is legislative power other than that that contained in
the constitution Act, the law ends with the dying out of its power source, subject to such savings as the repealing
law may provide.
The Court held that the effect of the repeal was the repeal of the parent Act, and not the law which had been born
out of the parent Act and had obtained an independent existence as subsisting law. Hence, the Order was held to
be subsisting law in India.
Partial Repeal
In considering the effect of a repeal of a section it is necessary to consider the nature of what is repealed.83 Where
there is a repugnancy in the repealing Act which is new and partial in its scope, the main scheme of the original Act
will control the meaning of the amending provision. The repugnancy will yield to the controlling scheme in the parent
Act.84
Denning J. observed in Chapman v Kirke:85
I do not wish it to be supposed that when a section of an Act is repealed it cannot thereafter be considered when
other provisions in the Act fall to be interpreted...
Craies opined:86
It must be borne in mind that there is a difference in effect between repealing an entire Act and merely repealing a
single clause in an Act. It may no doubt be said that, if a clause is repealed, this clause is to be taken as if it had
never existed. But it cannot be said that where a particular clause in an Act is repealed, the whole Act must be read
as if that clause had never been enacted... otherwise this consequence would follow that an Act of Parliament,
which at one time had one meaning, would by the repeal of someone clause in it have some other meaning.
Repealing Act Substituting Some Provision in Lieu of the One Repealed

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Effect of Repeal67
When any Act passed repeals another in whole or in part and substitutes some provision in lieu of the provision
repealed, the repealed enactment remains in force until the substituted provision comes into operation.87
In Wigram v Fryer,88 North J. held that notwithstanding the repeal of a section in a principal Act by an amending
Act certain powers expressly conferred by the repealed section must be implied from the amending Act, because of
the necessity of those powers to the effective performance of the duties cast upon the Metropolitan Board of Works
by the two Acts there in question. So that the very Act which repealed the section in the principal Act was held,
notwithstanding the repeal, to impliedly embody in itself the powers that had been expressed only in that repealed
section.
Repealing Clause Attached to an Unconstitutional Statute
In Meshmier v State,89 it was held:
A repealing clause attached to an unconstitutional Act of the legislature might repeal a former valid statute upon the
same subject. The general principal announced in that case is undoubtedly correct, for it must be conceded that the
legislature may use such language as to leave no doubt as to its intention to repeal former law, in any event. In
such a case the law intended to be repealed would cease to exist even though the law to which the repealing
clause was attached would fall by reason of being in conflict with the constitution.
Where, however, it is not clear that the legislature, by a repealing clause attached to an unconstitutional Act,
intended to repeal the former statute upon the same subject, except upon the supposition that the new Act would
take place of the former, the repealing clause falls with the Act to which it is attached.90
Legislation by Incorporation and Reference
The legislative device of incorporation by reference is adopted for the purpose of convenience. It obviates the need
to reproduce the provisions of an existing statute sought to be adopted in a later statute.91 At this juncture, it is
advantageous to extract from Rajya v Gopikabai,92 where it has been observed:
Broadly speaking, legislation by referential incorporation falls into two categories: First where a statute by specific
reference incorporates the provisions of another statute as of the time of adoption. Second, where a statute
incorporates by general reference the law concerning a particular subject as a genus. In the case of the former, the
subsequent amendment made in the referred statute cannot automatically be read into the adoption statute. In the
case of latter category, it may be presumed that the legislative intent was to include all the subsequent
amendments also made from time to time in the general law on the subject adopted by general reference.
This principle of construction of a reference statute has been aptly summed up by Sutherland thus:93
A statute which refers to law of a subject generally adopts the law on the subject as of the time the law is invoked.
This will include all the amendments and modifications of the law subsequent to the time the reference/statute was
enacted.
Corpus Juris Secundum also enunciates the same principle in these terms:
...where the reference in an adopting statute is to the law generally which governs the particular subject, and not to
any specific statute or part thereof...the reference will be held to include the law as it stands at the time it is sought
to be applied, with all the changes from time to time, at least as per on the changes are consistent with the purpose
of the adopting statute.94
Lord Esher observed in Re Woods Estate:95
If a subsequent Act brings into itself by reference some of the clauses of a former Act, the legal effect of that, as
has often been held, is to write those sections into the new Act just as if they had been actually written in it with the
pen or printed in it and the moment you have those clauses in the later Act, you have no occasion to refer to the
former Act at all.
It is a settled principle of interpretation of statutes that a competent legislature while amending one statute has, by
necessary incorporation, could bring about changes in another statute also which it was competent to enact.96 It is
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Effect of Repeal67
a well-settled provision of law that the repeal of a statute does not repeal such portions of the statute as have been
incorporated into another statute. If the original Act is repealed, the incorporated section or sections still operate in
the latter Act.97 It seems no less logical to hold that where certain provisions from an existing Act have been
incorporated into a subsequent Act, no addition to the former Act, which is not expressly made applicable to the
subsequent Act, can be deemed to be incorporated in it, at all events if it is possible for the subsequent Act to
function effectually without the addition.98 Thus, where a statute is incorporated by reference in a second statute,
and the repeal of the first by a third statute does not affect in any way the operation of the second statute, the
principle is that incorporation of that kind by relation to another Act is only to save the trouble of repeating the same
things, but the provisions referred to are made part of the second statute as much as if they had been expressly
incorporated therein.99
Maxwell states:100
Where the provisions of one statute are, by reference, incorporated in another and the earlier statute is afterwards
repealed the provisions so incorporated obviously continue in force so far as they form part of the second
enactment. If, however, there is a mere reference to the provisions of one statute in another without incorporation,
reference should be considered as reference to the provisions as may be in force from time to time in the former
statute. 101
In PC Agarwala v Payment of Wages Inspector,102 the Court in the context of interpreting the provisions of the
Payment of Wages Act, 1936, observed that there was a difference between legislation by incorporation and
legislation by reference. In the case of the former, the legislature intended to incorporate the specific provision into
the new enactment. In such a case, the amendments made to the earlier law cannot be automatically read into the
new enactment. Whereas, in the case of the latter, the legislature intends to refer the enactment to the law on that
subject generally, in which case the amendments to the earlier law also could be read into the new enactment.
Legislation by incorporation is of common occurrence, and is a known mode of legislation. And this may be by
reference, in which case it is not necessary to set out the whole Act intended to be re-enacted.103
In Lily Thomas v Union of India,104 the Supreme Court held that the offence of bigamy in the Hindu Marriage Act,
1955, had been created by reference. By providing in Section 17 that provisions of Sections 494 and 495 of the
Indian Penal code, 1860, would be applicable to such a marriage, the legislature had bodily lifted the provisions of
the IPC and placed them in Section 17.
In Sant Singh v Ladharam,105 the Court observed that it sometimes happened that one Act instead of expressly
repealing the words of a section contained in an earlier enactment, merely referred to it and by relation applied its
provisions to a new state of things created by a subsequent enactment. The Court made this observation in context
of the expression promissory note referred to in the Explanation to Section 13 of the Negotiable Instruments Act,
1881. The Court held the expression could only encompass such instruments, for purposes of stamp duty, as those
that fall within the definition of promissory note in Section 2 (22) of the Stamp Act.
The Court observed:
The definition is thus, by reference to a provision contained, another enactment. Instead of reproducing the entire
language of the definition which is given in another statute, a mere reference is made for the sake of economy of
words; but the true effect of definition in the other statute is as if it is cut out and pasted here, but no other provision.
In Khuda Bux v Manager, Caledonian Press,106 the Factories Act, 1934, was repealed and re-enacted by the
Factories Act, 1948. The Court held that references in the Workmens Compensation Act, 1923, to the Act of 1934
must be construed as references to the Act of 1948. The Court observed that had the Workmens Compensation Act
been amended after 1948 and had the references to the Act of 1934 yet remained, there would be reason for
saying that it was the Act of 1934 which was intended to be regarded, but since there had been no amendment to
the Workmens Compensation Act after the Factories Act of 1948, nor was there any other indication that the new
Act, references were to be construed as references to the Act of 1934.
Repealed Sections Whether to be Considered to Gather meaning of Unrepealed Section
Where in the statute which is to be repealed there are separate and distinct enactments and the repealing statute
simply repeals one of these enactments, it seems impossible to construe the meaning of the repealing statute to be
that it thereby gives a different meaning to the enactment with which it does not assume to deal at all.107 If it were
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Effect of Repeal67
otherwise, the consequence would be that an Act of Parliament which at one time had one meaning would by the
repeal of someone clause in it have some other meaning.
Temporary Statutes
A statute can be said to be either perpetual or temporary. It is perpetual when no time is fixed for its duration and
such a statute remains in force until its repeal, which may be express or implied. But a statute is temporary when its
duration is only for a specified time and such a statute expires on the expiry of the specified time, unless repealed
earlier. While examining the question as to whether the statute is a temporary one or not, one has to examine the
relevant provisions of the different states laws, included in the Schedule to the Validation Act.108
Effect on Proviso
It is a well-known rule in the construction of statutes, that if a substantive enactment in a former Act is repealed, that
which comes by way of proviso upon it is impliedly repealed also.109 When a bye-law is made under an Act of
Parliament the repeal of the Act, abrogates the bye-laws unless the bye-law is preserved by the repealing Act by
means of a saving clause or otherwise.110
67 . Sections 6-8 of the General Clauses Act.

68 . Gajrat Singh & Ors v State Tpt Appellate Tribunal & Ors (1997) 1 SCC 650 [LNIND 1996 SC 1456].
69 . Indian Tabacco Co Ltd v Commercial-tax Officer AIR 1975 SC 155.
70 . Kay v Goodwin (1830) 6 Bing 576, 31 RR 500, per Tindal, CJ; Lakshmanrao Krishnaji v Balkrishna Rangnath (1912)
ILR 36 Bom, 617, p 621; Digambar Paul v Taffazuddin (1933) ILR 60 Cal 1438, AIR 1934 Cal 80 (2), 82; Watson v
Winch [1916] 1 KB 688; Attorney-General v Lamplough [1878] 3 Ex D 214, p 217.
71 . [1878] 3 Ex D 214, pp 222-23, 227, 231.
72 . (1829) 9 BC 750, p 752.
73 . 31 RR 500.
74 . 2003 (3) Karlj 50.
75 . (2) Notwithstanding such repeal and subject to the provisions of Section 69:
(a) all proceedings ... pending ... shall be continued and disposed of by such Court as if the said enactment had not been
repealed;
(b) all...proceedings other than those referred to in Clause (a) pending at the commencement of this Act ... in respect of the
premises to which this Act applies shall be continued and disposed of ... in accordance with the provisions of this Act;
(c) all other cases and proceedings pending in respect of premises to which this Act does not apply shall as from the date of
commencement of the Act stand abated.
76 . Karam Singh v Pratap Chand AIR 1964 SC 1305 [LNIND 1963 SC 206]; Nasib Singh v Raja Ram AIR 1969 J&K 9.
77 . AIR 1960 Punj 312, p 316; Director of Public Works v Ho Po Oang [1961] 2 All ER 721 (PC); referred to in Free Lanka
Insurance Co v Ranasingha (1964) 1 All ER 457 (PC).
78 . [1916 1 KB 688; Harishchandra v State of Madhya Pradesh AIR 165 SC 932.
79 . State of Bombay v Pandurang AIR 1963 SC 244; Chief Inspector of Mines v Thaper AIR 1961 SC 638; Mohanlal v
State of West Bengal AIR 1961 SC 1544.
80 . Amar Singh Rajendra Singh v State of Madhya Pradesh AIR 1965 MP 126.
81 . State of Bombay v Pandurang AIR 1963 SC 244; Chief Inspector of Mines v Thaper AIR 1961 SC 638; Mohanlal v
State of West Bengal AIR 1961 SC 1544.
82 . AIR 1979 All 170
83 . Smith v London Transport Executive [1949] 2 All ER 295, p 304.
84 . Sales-tax Commr v Basta Colls Colliery Co 1966 Bih LJR 438.
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Effect of Repeal67
85 . [1948] 2 All ER 556: the definition clause had been repealed.

86 . Statute Law, fifth edn, p 382.
87 . Ram Dayal v Shankarlal AIR 1951 Hyd140 .
88 . [1887] 36 Ch D 87.
89 . II Ind 482.
91 . Harshad S Mehta & Ors v State of Maharashtra (2001) 8 SCC 257 [LNIND 2001 SC 1951].
92 . AIR 1979 SC 79.
93 . Sutherland, Statutory Construction, third end, p 5208.
94 . Quoted in RD Khubchandani v Official Liquidator, Indo Mercantile Fund Ltd, Madras 98 Mad LW 203, (1985) 1 Mad LJ
10; Gauri Shanker v State of Uttar Pradesh AIR 1994 SC 169.
95 . [1886] 31 Ch D 607, p 61; Aggarwal Trading Corpn v Collector of Customs (1971) 1 SCC 553, p 560, per Reddy J;
Safi (Mhd) v State of West Bengal AIR 1951 Cal 97 [LNIND 1951 CAL 76], p 99: in other words, we must read West
Bengal Land Development and Planning Act 21 of 1948 in such a way as if all the provisions of the Land Acquisition
Act were repealed or set out in fulltotidemverbis in the West Bengal Act 21 of 1948; R v Smith [1910] 1 KB 17, p 24:
and a subsequent repeal of the provisions of the former Act will not affect the so incorporated part of the later Act;
Karuna Karan v Dy Supdt, Central Excise AIR 1961 Ker 93 [LNIND 1960 KER 151]: Central Excise and Salt Act, and
Customs Act; Firoz v Sub-Div Officer AIR 1961 MP 110.
96 . Premier Insurance Co Ltd v C Thomas 96 LW 581.
97 . Safi (Mhd) v State of West Bengal AIR 1951 Cal 97 [LNIND 1951 CAL 76], p 99; Clarke v Bradlaugh [1831] 8 QBD
63, p 69; Jenkins v Great Central Railway [1912] 1 KB 1, p 8: where a statute is incorporated by reference into a
second statute, the repeal of the first...by a third does not affect the second; Trimbak Kashiram v Abaji (1911) ILR 35
Bom 307, p 309; Ram Sarup v Munshi AIR 1963 SC 553 [LNIND 1962 SC 286]; Balani Ores Ltd v State of Orissa
(1974) 2 SCC 777 [LNIND 1974 SC 286]; New Central Jute Mills Co Ltd v Asst Collector of Central Excise AIR 1982
SC 697 [LNIND 1981 SC 446]; Valsad Zilla Sahakari Bank Ltd v DK Patel (1991) 1 Guj LR 292 (Guj); VV Trans
Investments Pvt Ltd v Commr of Income-tax (1994) 74 Taxman 79 (AP); Madhavi Amma v Kallialli Amma (1988) 2 Ker
LT 964; Ramchandra Marotrao Advocate v Collector, Nagpur (1989) Mah LJ 558 [LNIND 1989 BOM 165].
98 . Secretary of State v Hindustan Co-op Insurance Society Ltd AIR 1931 PC 149, p 152: the general principle is that
when a parent Act is repealed, all the laws passed under that Act stand repealed unless there is a saving provision in
the repealing enactment; Atiqa Begum v Abdul Maghni (1940) ILR All 455, AIR 1940 All 272: reversed on the main
point in 1940 FCR 110.
99 . Moosa Kazimi v Sheriff AIR 1959 Mad 542 [LNIND 1959 MAD 34]-43, per Ramchandralyer J.
100 . Maxwell, Interpretation of Statutes, ninth edn, p 406.
101 . Beepathumma v Spl Dy Tahsildar 1982 KLT 130; relying upon Mahindra and Mahindra Ltd v Union of India AIR 1979
SC 798 [LNIND 1979 SC 59].
102 . (2005) 8 SCC 104, para 8, 9, 10, 11, 12.
103 . Bhagaban Roy v First Land Acquisition Collector 85 C WN 59.
104 . (2000) 6 SCC 224 [LNIND 2000 SC 827].
105 . (1976) MP LJ 238.
106 . AIR 1954 Cal 484 [LNIND 1954 CAL 62]; Jetindranath v State of Delhi AIR 1960 SC 89 [LNIND 1959 SC 163].
107 . Attorney-General v Lamplough 3 Ex D 214, 231, per Brett LJ.
108 . District Mining Officer & Ors v Tata Iron and Steel Co &Anor (2001) 7 SCC 358 [LNIND 2001 SC 1542].
109 . Borsnail v Bruce 1873 LR 8 CP 378, p 385, per Bovill CJ: Repeal of the Act abrogates rules thereunder, unless they
are preserved by the repealing Act by means of a saving clause or otherwise; Union of Burma v Maung Maung 1949
Bur LR 1.
110 . Watson v Winch [1916] 1 KB 638 .
End of Document
Repeal with a Saving Clause
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Repeal and Savings
Repeal with a Saving Clause
In National Planners Ltd v Contributories,111 the Court had to consider whether the repeal of the Indian
Companies Act, 1913, which conferred jurisdiction on District Courts to deal with certain cases, had taken away all
rights to proceed under the repealed statute even in actions which were pending but undetermined at the time of
repeal. The Court held that it was open to a District Judge in whose Court a winding-up proceeding was pending
before the Act of 1956 came into force to retain the said proceeding in his Court and to pass judgment in
accordance with the provisions of the Act of 1913, and it was not necessary under the provisions of the Act of 1956
to transfer the said proceedings to the High Court. In arriving at this decision, the Court culled out the following
principles from various authorities:
It is a well-settled rule of common law that when an action is brought under a statute which is afterwards repealed,
the court loses jurisdiction of suit pending under the repealed Act and is unable to deliver judgment therein, The
effect of repealing a statute is to obliterate it completely from the records of the parliament as if it had never been
passed; and it must be considered as a law that never existed, except for the purpose of those actions which were
commenced, prosecuted and conducted whilst it was an existing law (It follows as a corollary that if a statute is
unconditionally repealed without a saving clause in favour of pending suits all actions must stop where the repeal
finds them, and if final relief has not been granted before the repeal goes into effect, it cannot be granted
afterwards...A similar principle applies to a law conferring jurisdiction; and it has been held repeatedly that the
repeal of a statute giving jurisdiction to a court deprives it of the right to pronounce judgment in a proceeding
previously pending. Whenever a statute from which a court derives its jurisdiction in particular cases is repealed,
the court has no right to proceed under the repealed statute even in suits pending at the time of the repeal unless
the right is expressly saved by the repealing Act or by a general Act regulating repeals. To mitigate the harsh rule of
the common law the legislature considers its expedient from time to time to enact saving clauses which expressly
provide that whenever a statute shall be repealed, such repeal shall not affect pending actions founded thereon.
111 . National Planners v Contributors AIR 1958 Punj 230, p 231.
End of Document
Repeal of State Act by Central Act
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Repeal and Savings
Repeal of State Act by Central Act
In Zaverbhai Amaidas v State of Bombay,112 on the question of whether an Act of Parliament prevails against a
law of the States under Article 254 (1), the Court observed:
No question of repeal arises, but the principle on which the rule of implied repeal rests, namely, that if the subject
matter of the later legislation is identical with that of the earlier, so that they cannot both stand together, then the
earlier is repealed by the later enactment will be equally applicable to a question under Article 254 (2) where the
further legislation by Parliament is respect of the same matter as that of the state law.
112 . Quoted in Ratanlal Adhukia v Union of India AIR 1990 SC 104 [LNIND 2003 SC 686], (1989) (3) JT 148,
(1989) ACJ 1080, (1989) 3 SCC 37; overruling Assam Cold Storage v Union of India AIR 1971 Assam 69; Hindustan
Machine Tools v Union of India AIR 1985 Mad 130 [LNIND 1983 MAD 376].
End of Document
Conclusion
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Repeal and Savings
Conclusion
The chapter shows that the Courts have continually viewed the power to repeal co-terminus with the power to
enact. The interpretational challenges that primarily arise around the question of repeal emanate from the conflict
and contradictions which occur between freshly enacted laws and laws already existing on the statute book. These
contradictions give birth to questions of implied repeal. However since the legislature is presumed to know the
subsisting laws, Courts are averse to imply repeal unless such a deduction becomes inevitable.
End of Document
NS Bindra
Edition > Part III The Contextual Dimension of Interpretation > CHAPTER 13 Interpretation of
the Constitution
Part III The Contextual Dimension of Interpretation
Chapter 13 Interpretation of the Constitution
End of Document
Introduction
NS Bindra
the Constitution
Introduction
Insofar as the Constitution is the source of validity for all statutory law; and it has distinct procedures both for its
promulgation and amendment; the interpretation of the Constitution has not been seen akin to ordinary statutory
interpretation. This distinction is well captured in the following exposition of the Rajasthan High Court where the
Court whilst expounding upon the meaning of Art 295 of the Constitution stated Accustomed as we are in our day-
to-day administration of justice to the interpretation of numerous statutes, we are apt to lose sight of the fact that the
Constitution is unlike most of the statutes that we come across, has to be judged from somewhat different
standards. The constitution is the very framework of the body politic: its life and soul; it is the fountain-head of all its
authority, the main spring of all its strength and power. The executive, the legislature, and the judiciary are all its
creation, and derive their sustenance from it. It is unlike other statutes, which can be at any time altered, modified or
repealed. Therefore, the language of the constitution should be interpreted as if it were a living organism capable of
growth and development if interpreted in the broad and liberal spirit, and not in a narrow and pedantic sense. The
need for this caution is greater when the court is called upon to interpret the Constitution of the great democratic
republic of India, devised by the people of the land, who were anxious to insure for themselves a government of the
people, by the people and for the people. The Constitution was not merely concerned with the present and the past;
but also built for the future. It would be small credit to the makers of the constitution, if we start with the erroneous
assumption that they failed to visualise the problems with which we are at present confronted, and that in the
Constitution they did not provide for them. We cannot but presume that in the normal course, they must have
peeped into the future far as human eye could see or as far as human intellect could probe, and foreseen these
contingencies.1
Both statutes and the Constitution in a way emanate from the same source, that is, the people, but there is
difference in the mode of their enactment. While the Constitution is the direct mandate of the people themselves,
the statute is an expression of the will of the legislature only, though the legislature is also the representative of the
people. A constitution is but a higher form of statutory law. The Constitution, viewed as a continuously operative
charter of government, is not to be interpreted as demanding the impossible or the impracticable.2 A Constitution is
the mechanism under which laws are to be made, and not merely an Act which declares what the law is to be. It is
also well-settled that a Constitution must not be construed in a narrow or pedantic sense and the construction which
is most beneficial to the widest possible amplitude of its power must be adopted. An exclusionary clause in any of
the entries should be strictly and therefore narrowly construed.
In the words of Iyer J:3
A Constitution is a documentation of the founding faiths of a nation and the fundamental directions for their
fulfillment. So much so, an organic, not pedantic, approach to interpretation, must guide the judicial process. The
healing art of harmonious construction, not the tempting game of hairsplitting promotes the rhythm of the law.
Dhavan J stated in Moinuddin v State of Uttar Pradesh:4
Firstly, if two constructions are possible the court must adopt the one which will ensure smooth and harmonious
working of the Constitution and eschew the other which will lead to absurdity or gives rise to practical inconvenience
or make well-established provisions of existing law nugatory.5 Secondly, constitutional provisions are not to be
interpreted and applied, by narrow technicalities but as embodying the working principles for practical government.
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Introduction
Thirdly, the provisions of a Constitution are not to be regarded as mathematical formulae and that their significance
is not formal but vital. Hence practical considerations rather than formal logic must govern the interpretation of
those parts of a Constitution which are obscure. Fourthly, in choice between two alternative constructions, the one
which avoids a result unjust or injurious to the nation should be preferred. Fifthly, before making its choice between
two alternative meanings, the court must read the Constitution as a whole, take into considerations its different
parts and try to harmonise them. Sixthly, above all court should proceed on the assumption that no conflict or
repugnancy between different parts was intended by the framers of the Constitution.
The Supreme Court held in Union of India v SH Sheth:6
What is true of an ordinary statue is not any the less true in the case of constitutional provision, and the same rule
applies equally to both. If the words of an instrument are ambiguous in the sense that they can reasonably bear
more than one meaning, that is to say, if the words are semantically ambiguous, or if a provision if read literally is
patently incompatible with the other provisions of that instrument, the court would be justified in construing the
words in a manner which will make the particular provision meaningful. That is the essence of the rule of
harmonious construction. But if the provision is clear and explicit, it cannot be reduced to a nullity by reading into it
a meaning which it does not carry. Clauses of the Constitution, which involve a conflict of governmental powers
must be considered with reference to the literal meaning of the words, their connection with other words and the
general object to be accomplished,7 and in a case of ambiguity, report of the drafting committee of the constituent
assembly may be read...8
In Synthetics and Chemicals Ltd v State of Uttar Pradesh,9 the petitioners contended that the levies made by
States on alcohol, which was utilised as raw material by the industries for manufacturing the products, were invalid.
It was alleged that, in addition to excise duty levied by the Central Government, excise duty and various levies in
various names like vend lee, transport fee and others numbering about eight levies were imposed by the State
Government. It was also contended that the State Legislature had no authority, in view of Entry 84 of List-I read with
Entry 51 of List-II to impose such levies; this being alcohol which did not within the ambit of alcoholic liquors for
human consumption. While declaring the impugned legislations to be unconstitutional and beyond the legislative
competence of different states, the Court observed qua the interpretation of the Constitution:
A broad and liberal spirit should therefore inspire those whose duty it is to interpret the Constitution and the courts
are not free to stretch or prevent the language of an enactment in the interest of any legal or constitutional theory.
Constitutional adjudication is not strengthened by such an attempt, but it must seek to declare the law, and so look
upon a Constitution that it is a living and organic thing and must adopt itself to the changing situations and pattern in
which it has to be interpreted. It has also to be borne in mind that where division of powers and jurisdiction in a
federal Constitution is the scheme, it is desirable to read the Constitution in harmonious way. It is also necessary
that in deciding whether any particular enactment is within the purview of on legislature or the other, it is pith and
substance of the legislation in question that has to be looked into. It is well-settled that the various entries in the
three lists of the Indian Constitution are not powers but fields of legislation. These demonstrate the area over which
the appropriate legislatures can operate. It is well-settled that widest amplitude should be given to the language of
the three entries, but some of these entries in different lists or in the same list may override and sometimes may
appear to be in direct conflict with each other, then and then only comes the duty of the court to find the true intent
and purpose and to examine the particular conflict in question. Each general word should be held to extend to all
ancillary or subsidiary matters, which can fairly and reasonably be comprehended in it.
1 .State of Rajasthan v Shamlal AIR 1960 Raj 256 [LNIND 2012 RAJ 319], pp 265-66, (1969) ILR 10 Raj 652; Dalip
Singh Gill v Union of India AIR 1993 P&H 263.
2 .Opp Cotton Mills v Administrator 85 L Ed 624, p 636, 312 US 126, per Stone J; Amar v Chief Justice, Punjab AIR 1978
Punj 215.
3 .Fatehchand Himatlal v State of Maharashtra (1977) Mah LJ 205 [LNIND 1977 SC 63], (1977) MP LJ 201 [LNIND 1977
SC 63] (SC), per Krishna Iyer J.

Page 3 of 3
Introduction
5 .State of Punjab v Ajaib Singh AIR 1953 SC 10 [LNIND 1952 SC 68]; Chief Justice of Andhra Pradesh v LVA Dikshitulu
1978 Lab IC 1672, p 1684 (SC), AIR 1979 SC 193.
6 .(1977) 18 Guj LR 919, para 12.
7 .Brown v Maryland 12 Wheat 419 (US), 6 L Ed 678.
8 .AK Gopalan v State of Madras AIR 1950 SC 27 [LNIND 1950 SC 22].
9 . AIR 1990 SC 1927 [LNIND 1989 SC 672], (1989) (4) JT 267 (SC); Supreme Court Advocates on Record Assn v
Union of India (1993) 4 SCC 441.
End of Document
Applicability of Rules of Statutory Construction
NS Bindra
the Constitution
Applicability of Rules of Statutory Construction
The fundamental rule of interpretation is the same, whether it is the provisions of the Constitution or an Act of
Parliament, namely that the court will have to ascertain the intention gathered from the words in the Constitution or
the Act as the case maybe. And where two constructions are possible, that one should be adopted which would
ensure a smooth and harmonious working of the Constitution and eschew that which would lead to absurdity or give
rise to practical inconvenience or make well-established provisions of existing law nugatory.10 It is settled by very
high authority that in placing a construction on a constitution of any clause or part thereof, a court should look to the
history of the times and examine the existing state of things when the Constitution was framed and adopted, in
order to ascertain the prior law, the mischief, and the remedy.11 Where two alternative constructions are possible,
the court must chose the one which will be in accord with the other parts of the statute and ensure its smooth,
harmonious working, and eschew the other which leads to absurdity, confusion or friction, contradiction and conflict
between its various provisions, or undermines or tends to defeat or destroy the basic scheme and purpose of the
enactment. These canons of construction apply to our Constitution with greater force...12. The general rule of
consequential repeal of laws framed under a repealed law does not apply to the laws enacted under a constitutional
enactment. Such laws remain in force unless expressly repealed.13
10 .Chandra Mohan v State of Uttar Pradesh AIR 1966 SC 1987 [LNIND 1966 SC 148], (1966) All LJ 778, (1966) All WR
537 (HC); Shakuntala S Tiwari v Hemchand M Singhania AIR 1987 SC 1823 [LNIND 1987 SC 457], (1987) (3) JT 433,
1987 Rajdhani LR 363, (1987) 10 (1) IJ Rep 296, (1987) 3 SCC 211 [LNIND 1987 SC 457], (1987) (1) Supreme 697,
(1987) 2 SCJ 481, (1987) 2 Guj LH 16, (1987) 2 Bom CR 480, (1987) 1 Rent LR 281, (1987) 2 UJ 439 (SC).
11 .Brushaber v Union Co 240 1, L Ed 493 (US), Maxwell v Daw 176 US 581, 44 L Ed 597; United States v Wong Kum Ark
169 US 649, 42 L Ed 890; Prigg v Pennsylvania 16 Petx 539 (US), 10 L Ed 1060.
12 .Chief Justice of Andhra Pradesh v LVA Dixitulu AIR 1979 SC 193, 1978 Lab IC 1672; State of Karnataka v Union of
India AIR 1978 SC 68 [LNIND 1977 SC 312].
13 .Mohan Agarwal v Union of India AIR 1979 All 170 .
End of Document
Original Intent and Dynamic Interpretation
NS Bindra
the Constitution
The Supreme Court has observed that Courts should interpret the constitutional provisions against the social setting
of the country so as to show complete consciousness and deep awareness of the growing requirements of the
society, the increasing needs of the nation, the burning problems of the day and the complex issues facing the
people which the legislature in its wisdom, through beneficial legislation, seeks to solve. The judicial approach
should be dynamic rather than static, pragmatic and not pedantic and elastic rather than rigid.14 At this stage, it is
apt to quote the theories of interpretation of Constitution propounded by the Allahabad High Court in Ganesh
Chandra Bhatt v District Magistrate, Almora:15
The two theories are the mechanical and organic theories. The mechanical method of interpretation of a
Constitution was most authoritatively laid down by the US Supreme Court in Dred Scott v Standford,16 wherein
Chief Justice Tanej said that the Constitution must be construed now as it was construed at the time at adoption. In
Normen v Baltimore,17 Brews J declared that the meaning of the Constitution never altersthat which it meant when
adopted it means now. Thus the mechanical method requires that in interpreting a constitutional provision we
should try to put ourselves in the shoes of the founding fathers of the Constitution and should seek to read their
minds and gather their intention. For this purpose we should read the Constituent Assembly debates and look into
other contemporaneous material to gather the intention of the constitution makers.
In Francies Coralie Mullin v Administrator,18 the Court had to consider whether preventive detention could be
ordered under Section 3 (b) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act,
1974, and whether the detenu would have a right to interview with a lawyer and the members of his family. The
Court held that the provision was unconstitutional, and that any preventive detention law ought to tested not only on
Article 22, but on Article 21as well. In arriving at this decision, the Court delivered some incisive observations about
the need to interpret the constitution dynamically. The Court observed:
While arriving at the proper meaning and content of the right to life, the attempt of the court should always be to
expand the reach and ambit of the fundamental right rather than to attenuate its meaning and content. A
constitutional provision must be construed, not in a narrow and constricted sense, but in a wide and liberal manner
so as to anticipate and take account of changing conditions and purposes so that the constitutional provision does
not get atrophied or fossilized but remains flexible enough to meet the newly emerging problems and challenges.
This principle applies with greater force in relation to a fundamental right enacted by the Constitution. The
fundamental right to life which is the most precious human right and which forms the ark of all other rights must
therefore be interpreted in a broad and expansive spirit so as to invest it with significance and vitality which may
endure for years to come and enhance the dignity of the individual and the worth of the human person...
In Ganesh Chandra Bhatt vs District Magistrate, Almora19 Justice Katju was of the view that the dynamic or
organic method should be adopted to interpret the Constitution. The organic method he opined requires us to see
the present social conditions and interpret the Constitution in a manner so as to resolve the present difficulties...if
we interpret the Constitution from the angle of the Constitution makers we may arrive at a completely out dated and
unrealistic view. Adopting such a dynamic approach he ruled that the right to bear arms was embedded in Article 21
of the Constitution, and hence was a fundamental right. The right he clarified was like all fundamental rights subject
to reasonable restrictions, but in his view the reasonableness of the restrictions should be judged on the basis of
Page 2 of 3
prevailing social conditions, and not in the abstract. Such an evaluation may show that what may have been
reasonable earlier may no longer be reasonable today.
A similar plea for dynamic interpretation of the Constitution has been made by the Supreme Court in State of
Punjab v Devans Modern Breweries Ltd20. While determining the vires of the Excise policy of the State of Punjab
qua Section 33 A of the Punjab Excise Act, 1914, The Court observed:
Many believe that the Constitution is a flexible and evolving document, always adaptable to changes in societys
conditions and circumstances. Others insist that judges be strictly bound by its words and by the historical record of
what the framers of both the original text and the amendments intended. A constitutional provision should always
receive a fair, liberal and progressive interpretation so that its true objects might be promoted. By this it can fulfil the
aspirations of the people at large. To achieve the above goal, the Organic method of interpretation which is now
universally accepted, requires us to see the present social conditions and interpret the Constitution in a manner so
as to resolve the present difficulties. The social conditions existing at the time when the Constitution was made may
be very different from the present conditions and hence if we interpret the Constitution from the angle of the
Constitution makers we may arrive at a completely outdated and unrealistic view...The meaning of the word or
expression used in the Constitution often is coloured by the context in which it occurs, the simpler and more
common the word or expression, the more meanings and shades of meanings it has, It is the duty of the Court to
determine in what particular meaning and particular shade of meaning the word or expression was Used by the
Constitution makers and in discharging the duty the Court will take into account the context in which it occurs, the
object to serve which in war used, its collocation, the general congruity with the concept or object it was intended to
articulate and a host of other consideration. The interpretative changes in the Constitution must not only be
considered from its plain language for the purport and object it seeks to achieve but also having regard to the
international treaties and conventions but also principles of interpretation governing the same. The necessity of
interpretative changes having regard to the changing scenario has recently been noticed by this Court in its several
decisions.
In Rashtriya Mukti Morcha v Union of India21 it was contended that Constitution is not a static document. It requires
dynamic interpretation to subserve the interests of the country. To that end the petitioner was of the view that only a
person who is a natural born citizen should have the right to contest an election or hold a public office in any
political party. The petitioner asserted that the norms of citizenship enunciated in Article 5 of the Constitution of
India should determine who has the right to contest election or stand for public office. This contention was raised in
the face of Article 11 of the Constitution which unequivocally stated thatnothing in the foregoing provisions of this
Part shall derogate from the power of Parliament to make any provision with respect to the acquisition and
termination of citizenship and all other matters relating to citizenship. The Delhi High Court did not allow the the
original list venture of the petitioner to succeed. It referred to the various ways in which the citizenship law has been
modified and how legislature had clearly specified the category of citizens who could stand for election and hold
office. In these circumstances it was beyond the jurisdiction of the court to read disqualifications in the election or
citizenship in the name of realizing the elusive intention of the founders.
14 .Pathuma v State of Kerala (1978) 2 SCC 1 [LNIND 1978 SC 11], p 8 AIR 1978 SC 771 [LNIND 1978 SC 11]; Ahmed
Ali Akhtar v Union of India (1993) 1 Pat LJR 664.
15 . AIR 1993 All 291 [LNIND 1993 ALL 102].
16 .(1857) 19 How 393, 426 (US).
17 .(1934) 294 US 240.
18 . AIR 1981 SC 746 [LNIND 1981 SC 27].
19 . AIR 1993 All 291 [LNIND 1993 ALL 102].
20 . (2004) 11 SCC 40.
21 . 137 (2007) DLT 195.

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The Constituent Assembly Debates as an Aid to Constitutional
Interpretation 22
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The Constituent Assembly Debates as an Aid to Constitutional

Interpretation 22
The fundamental principle of constitutional construction is to give effect to the intent of the framers of the organic
law and of the people adopting it.23 That is, according to the intent that made it. Normally, such intent is gathered
from the language of the provision. But if words used in the provision are imprecise, protean or evocative or can
reasonably bear meaning more than one, then it is legitimate for the court to go beyond and call in aid other well-
recognised canons of constructions.24
But in determining whether a provision of the Constitution applies to a new subject matter, it is of little significance
that it is one with which the framers were not familiar. For in setting up an enduring framework of government, they
undertook to carry out for the indefinite future and in all the vicissitudes of the changing affairs of men, those
fundamental purposes which the instrument itself discloses. Hence, one must read its words, not as one reads
legislative Codes, which are subject to continuous revision with the changing course of event, but as the revelation
of the great purposes which were intended to be achieved by the Constitution as a continuing instrument of
government.25
Constituent Assembly Debates may be relied upon as an aid to find out the intention of the Framers of the
constitution.26
In Fagu Shaw etc. v State of West Bengal,27 the Court traced the history of reliance on Constituent Assembly
Debates. Bhagwati J. stated:
Since the purpose of interpretation is to ascertain the real meaning of a constitutional provision, it is evident that
nothing that is logically relevant to this process should be excluded from consideration. It was at one time thought
that the speeches made by the members of the Constituent Assembly in the course of the debates of the Draft
Constitution were wholly inadmissible as extraneous aids to the interpretation of a constitutional provision, but of
late there has been a shift in this position and following the recent trends in juristic thought in some of the Western
countries and the United States, the rule of exclusion rigidly followed in Anglo American jurisprudence has been
considerably diluted...We may therefore legitimately refer to the Constituent Assembly debates for the purpose of
ascertaining what was the object which the Constitution makers had in view and what was the purpose which they
intended to achieve...
In S.R. Chaudhari v State of Punjab,28 the question before the Court was whether under Article 164, a person
could be appointed as a minister even if he had not been elected as a member of the legislature for six months. The
clear mandate of Article 164 (4) was that A Minister who for any period of six consecutive months is not a member
of the Legislature of the State shall at the expiration of that period cease to be a Minister. However, the controversy
arose because of the concerned person was appointed as a minister by one chief minister.
At the expiry of 6 months, he resigned, and was re-appointed by the next chief minister. The Court relied on, and
extensively quoted, the statements of Mohammed Tahir and B.R. Ambedkar in the Constituent Assembly, to
interpret Article 164 (4) to mean that the re-appointment of the concerned person as a minister by the second chief
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The Constituent Assembly Debates as an Aid to Constitutional Interpretation 22
minister was unconstitutional and invalid, and that Article 164 (4) had to be interpreted to mean that at the expiry of
six months, the concerned person could not be appointed as a minister for the remaining term of the Assembly. In
It is a settled position that debates in the Constituent Assembly may be relied upon as an aid to interpret a
constitutional provision because it is the function of the Court to find out the intention of the framers of the
Constitution. We must remember that a Constitution is not just a document in solemn form, but a living framework
for the Government of the people exhibiting a sufficient degree of cohesion and its successful working depends
upon the democratic spirit underlying it being respected in letter and in spirit. The debates clearly indicate the
privilege to extend only for six months.
In Kuldip Nayar v Union of India,29 the petitioner sought to challenge amendments made in the Representation of
People Act, 1951, through the Representation of People (Amendment) Act, 2003, which deleted the requirement of
domicile in the State Concerned to get elected to the Council of States. The petitioner alleged that this deletion
violated the principle of Federalism enshrined in the Constitution. The Court rejected this contention of the
petitioner, relying on the exclusion of the requirement of domicile by the Constituent Assembly. The Court observed:
It is true that the provisional Parliament in 1951 did prescribe residence inside the State as a qualification for
Membership of the Council of States. But, it also needs to be borne in mind that the same Parliament in its
character of a Constituent Assembly had refused to exalt the qualification (including that of residence) to a
Constitutional requirement and rather showed consciousness that the provision for qualifications might need to be
revisited from time to time and, therefore, finding it inadvisable to prescribe the same in the Constitution itself.
However the intention of Constituent Assembly as expressed in Entry 54, List II of the Seventh Schedule to the
constitution cannot be a guide for ascertaining the intention of a totally different body, that is, the British Parliament
in enacting Entry 43 in List II of the Seventh Schedule to the Government of India Act 1935.30
In Ram Gopal Singh Sisodiavs Union of India31 it was contended that Sachin Tendulkar could not be nominated as
member of the Rajya Sabha under clause (1) (a) of clause 3 of Article 80 of the Constitution of India because
cricket was not included in any of the enumerated categories. Hence Mr. Tendulkars nomination was
unconstitutional. The relevant article of the Constitution provided as follows:
The members to be nominated by the President under sub- clause (a) of clause (1) shall consist of persons having
special knowledge or practical experience in respect of such matters as the following, namely:
Literature, science, art and social service.
The State in response to the petition informed that Sachin Tendulkars nomination had been made under the art
category. The Delhi High Court then raised the question whether the ability to serve the cricket ball well is within a
skill and can be considered to be an ability to bring it under the expression art. The Court pointed out that art was
that which human effort and skill produced. Such skill could be a natural talent like singing or painting or dancing or
it could be something that a person has been taught and in which he or she has great experience. The Court further
noted that the enumeration in the article was illustrative and not exhaustive before dismissing the petition.
22 . For a longer discussion, refer to the 183rd Report of the Law Commission of India (2002) on A continuum on the
General Clauses Act, 1897 with special reference to the admissibility and codification of external aids to interpretation
of statutes.
23 .Lake County Commrs v Rollins 130 US 662, 132 L Ed 1060; Whiteman v National Bank 176 US 559, 44 L Ed 587;
Woodson v Murdock 22 Wall US 351, 122 L Ed 716: construed reasonably to carry out the intention of the framers;
Prigg v Pennsylvania 16 Pet US 539, 10 L Ed 1060: not to defeat the obvious intent, mischief rule applied to
interpretation of the Constitution; Rhode Island v Massachussetts 12 Pet 657 (US), 9 L Ed 1233: should not be
construed so as to defeat its evident purpose, but rather so as to give it effective operation and suppress the mischief at
which it is aimed; Jarroct v Moberly 103 US 580, 26 L Ed 492.
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The Constituent Assembly Debates as an Aid to Constitutional Interpretation 22
24 .Chief Justice of Andhra Pradesh v LVA Dishitulu 1978 Lab IC 1672, p 1684 (SC), AIR 1979 SC 193; Sudhakar (Dr) v
Union of India AIR 1995 AP 86 [LNIND 1994 AP 208].
25 .United States v Classic 85 L Ed 1368, p 1378, 313 US 299, per Stone J.
26 .SR Chaudhuri v State of Pujab&Ors (2001) 7 SCC 126 [LNIND 2001 SC 1736].
27 . AIR 1974 SC 613 [LNIND 1973 SC 414].
28 . (2001) 7 SCC 126 [LNIND 2001 SC 1736].
29 . (2006) 7 SCC 1 [LNIND 2006 SC 635].
30 .VM Syed Mohommad & Co v State of Andhra Pradesh AIR 1954 SC 314 [LNIND 1954 SC 34].
31 . Decided on 19.12.2012 http://www.indiankanoon.org/doc/177332764/.
End of Document
Preamble as a Source of Interpretation
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Preamble as a Source of Interpretation
The preamble of the Constitution of India is a part of the Constitution.32 It is also the basic structure of the
Constitution.33 However when the provision of the Constitution is plan, clear and unambiguous, the permeable
thereof cannot control the meaning of such a provision.34 Where the provision of the Constitution is ambiguous, the
preamble serves as a key to understanding thereof.35 Preamble of the Constitution derives source of power from
We the people of India, that is Bharat, envisions an egalitarian social order to integrate all the people with equality
of status, dignity of person and fraternity as a united Bharat and providing them socio-economic justice, equality of
opportunity and status and dignity of person.36
In Atam Prakash v State of Haryana,37Section 15 of the Punjab Pre-emption Act, 1913, incorporated the right of
pre-emption based on consanguinity. The petitioners challenged this right of pre-emption based on consanguinity
under Article 32 of the Constitution on the ground that it violated Articles 14 and 15 of the Constitution. The Court
invoked the expression socialist in the Preamble to interpret Articles 14 and 15, and held that there was no
justification for the classification contained in Section 15 that entitled the blood relatives to pre-emption. It was
stated that the right of pre-emption based on consanguinity was a relic of the feudal past, and militated against the
idea of socialism that the Preamble enshrined. The Court observed:
Whether it is the Constitution that is expounded or the constitutional validity of a statute that is considered, a
cardinal rule to look to the Preamble to the Constitution as the guiding light and to the Directive Principles of State
Policy as the Book of interpretation. The Preamble embodies and expresses the hopes and aspirations of the
people. The Directive Principles set out proximate goals. At the time of examining statutes against the Constitution,
it is through these glasses that the court must look, distant vision or near vision. The Constitution being sui-generis,
where constitutional issues are under consideration, narrow interpretative rules which may have relevance when
legislative enactments are interpreted may be misplaced.
32 .Kesavananda Bharati v State of Kerala [1973] 4 SCC 225 [LNIND 1973 SC 154], p 324, per Sikri CJ, 709, per Palekar
J, 787, per Khanna J, 928, per Dwivedi J, 988, per Chandrachud J.
33 .State of Uttar Pradesh v Dr Dina Nath Shukla &Anor (1997) 9 SCC 662.
34 .Burrakur Coal Co Ltd v Union of India [1962] 1 SCR 44 [LNIND 1961 SC 55], p 49, per Mudholkar J; Kesavananda
Bharati v State of Kerala (1973) 4 SC 225, p 539, per Ray J, 711, per Palekar J.
35 .Kesavananda Bharati v State of Kerala (1973) 4 SCC 225 [LNIND 1973 SC 154], p 326, per Sikri CJ, 420, 422, per
Shelat and Grover JJ, 636-37, per Reddy J.
36 .State of Uttar Pradesh v Dr Dina Nath Shukla &Anor (1997) 9 SCC 662.
37 . AIR 1986 SC 859 [LNIND 1986 SC 47].
End of Document
Interpretation of Part III
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the Constitution
The words of the Constitution must be naturally and liberally construed, and no narrow or restricted interpretation
should be put upon the words unless such interpretation is forced by the context in which they occur. None of the
items in the lists is to be read in a narrow or restricted sense. Each general word should be held to extend to all
ancillary or subsidiary matters, which can fairly and reasonably be said to be comprehended in it. It is, therefore,
clear that in construing an entry in a list conferring legislative powers, the widest possible construction according to
their ordinary meaning must be put upon the words used therein.38 The interpretation of constitutional principles
must not be too literal. It must be remembered that the machinery of government would not work if it were not
allowed a little play in its joints.39 In the interpretation of the Constitution, words of width are both a framework of
concepts and means to achieve the goals in the Preamble. Concepts may keep changing to expand and elongate
the rights. Constitutional issues are not solved by mere appeal to the meaning of the words without an acceptance
of the line of their growth. The judges, therefore, should respond to the human situations to meet the felt necessities
of the time and social needs; make meaningful the right to life and give effect to the Constitution and the will of the
legislature. The Supreme Court as the vehicle of transforming the nations life should respond to the nations needs,
interpret the law with pragmatism to further public welfare to make the constitutional animations a reality and
interpret the Constitution broadly and liberally enabling the citizens to enjoy the rights.40
In Anandan Nambiar v Chief Secretary of the Government of Kerala,41 the petitioners were members of
Parliament. They were detained by orders passed by the State Government under Rule 30 (1) (b) of the Defence of
India Rules, 1962. They challenged the validity of the orders of detention on grounds that Rule 30 (1) (b) was invalid
because a legislator could not be detained so as to prevent him from exercising his constitutional rights while the
legislative chamber to which he belongs was in session. The Court repelled the argument on the ground that a
Presidential Order promulgating the Ordinance remained could not be questioned on the ground that it contravened
Articles 14, 21 and 22 of the Constitution. In arriving at this decision, the Court observed qua fundamental rights:
It is a general rule of construction that where the fundamental rights guaranteed by the Constitution are suspended
by the promulgation of an Ordinance, the order of suspension must be construed strictly in favour of the citizen,
whose rights have been so deprived. It is true that so long as the Ordinance, or But the limitation will not preclude
the citizen from challenging the validity of the Ordinance, rule or order made thereunder on any ground other than
the contravention of the said articles. A citizen cannot be deprived of his right to move the appropriate court for a
writ of habeas corpus on the ground that his detention has been ordered mala fide. The presidential order cannot
even debar the citizen from contending that the orders of detention were the result of the excessive delegation of
powers.
In M Nagaraj v Union of India,42 the Court was considering the 85th Amendment to the Constitution, which added
and operated Article 16 (4A) of the Constitution retrospectively from 17.6.1995 to provide reservations in
promotions with consequential seniority. This was challenged by the petitioner as being unconstitutional and
violative of the basic structure. The Court upheld the validity of the Amendment, and prior to arriving at the
substance of the case, Kapadia J. laid a framework for the interpretation of fundamental rights. His Lordship
observed:
It is a fallacy to regard fundamental rights as a gift from the State to its citizens. Individuals possess basic human
rights independently of any constitution by reason of basic fact that they are members of the human race. These
fundamental rights are important as they possess intrinsic value. Part-III of the Constitution does not confer
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fundamental rights. It confirms their existence and gives them protection. Its purpose is to withdraw certain subjects
from the area of political controversy to place them beyond the reach of majorities and officials and to establish
them as legal principles to be applied by the courts. Every right has content. Every foundational value is put in Part-
III as fundamental right as it has intrinsic value. The converse does not apply. A right becomes a fundamental right
because it has foundational value. Apart from the principles, one has also to see the structure of the Article in which
the fundamental value is incorporated. Fundamental right is a limitation on the power of the State. A Constitution,
and in particular that of it which protects and which entrenches fundamental rights and freedoms to which all
persons in the State are to be entitled is to be given a generous and purposive construction.
In Post graduate Institute of Medical Education & Research, Chandigarh v KL Narsimhan,43 the question was,
whether the policy of reservations should be applied by autonomous authorities under the government control. It
was held that the interpretation of the constitutional provisions should always be such as to enable the availing of
the rights given in the Constitution to the citizens, and not to deny or denude them by process of interpretation. The
judges of the constitutional courts, in particular, as judicial statesmen, would always endeavor to ensure enjoyment
of the rights enshrined in the Constitution by every section of the society consistent with the policies and principles
laid down in the Constitution. In order to reach the result, the above perspective has to be kept in view. It was
further held that fundamental rights are to be interpreted broadly to enable the citizens to enjoy the rights enshrined
in Parts III and IV of the Constitution. It was also held that the faith of the founding fathers of the Constitution in the
Supreme Court judges was so high that they chose to describe Supreme Court judges as worthy judges to interpret
the Constitution only to sustain the social order, integrate the people in united Bharat, to elongate the constitutional
rights and ensure the enjoyment of those rights, and make these rights available to the dalits, tribes, poor,
minorities and all sections in equal measure. The provisions in the Constitution touching fundamental rights must be
construed broadly and liberally in favour of those on whom the rights have been conferred.44
For other illustrations on the interpretation of part III of the Constitution see Table 3.1.
Progressive Interpretation of Part III
Constitutional provisions are required to be understood and interpreted with an object-oriented approach. A
Constitution must not be construed in a narrow and pedantic sense. The words used may be general in terms but,
their full import and true meaning, has to be appreciated considering the true context in which the same are used
and the purpose which, they seek to achieve. A Constitution is not just a document in solemn form, but a living
framework for the government of the people exhibiting a sufficient degree of cohesion and its successful working
depends upon the democratic spirit underlying it being respected in letter and in spirit. Hence, the Supreme Court is
not bound to accept an interpretation which retards the progress or impedes social integration. It adopts such
interpretation which would bring about the ideals set down in the Preamble of the Constitution aided by Part III and
Part IVA truism, meaningful and a living reality to all sections of the society as a whole by making available the
rights to social justice and economic empowerment to the weaker sections, and by preventing injustice to them.45
The true content of the words is not to be gathered by simply taking the words in one hand and a dictionary in the
other, for the provisions of the Constitution are not mathematical formulae which have their essence in mere
form.46
Story said:47
When, then, we may well resort to the meaning of single word to assist our inquiries, we should never forget, that it
is an instrument of government that we are to construe. In other words, while the powers granted do not change,
they apply from generation to generation to all things to which they are in their nature applicable.48
In Naveen Jindal v Union of India,49 the Court had to consider whether the right to freedom of speech and
expression could accommodate the right to hoist the national flag on private buildings, a display that was hitherto
prohibited. The Court upheld this right of the petitioner, and in the context of interpreting Article 19 (1)(a), observed
that that the right to fly the national flag freely with respect and dignity is a fundamental right of a citizen within the
meaning of Article 19, being an expression and manifestation of his allegiance and feelings and sentiments of pride
for the nation. The Court observed:
The Constitution being a living organ, its ongoing interpretation is permissible. The constitutional courts are not only
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required to take into consideration their own experience over the time, the international treatise and covenants but
must also keep the doctrine of flexibility in mind...
In Life Insurance Corpn v Prof Manubhai D Shah,50 the publication of a research paper by an Executive Trustee of
the Consumer Education and Research Centre, which criticised the premium policy adopted by the Life Insurance
Corporation of India, was under question. A counter prepared by a member of LIC as well as a rejoinder prepared
by the Executive Trustee were published in a newspaper. However, LIC refused to publish the Executive Trustees
rejoinder in its magazine on the ground that it was an in-house magazine. This refusal to publish was challenged as
being in violation of Article 19 (1)(a). The Court dismissed the appeal of LIC, and held that the refusal to publish the
rejoinder was in violation of the freedom of speech and expression. The Court observed:
It must be appreciated that the Indian Constitution has separately enshrined the fundamental rights in Part III of the
Constitution since they represent the basic values which the People of India cherished when they gave unto
themselves the constitution for free India. That was with a view to ensuring that their honour, dignity and self
respect will be protected in free India. They had learnt a bitter lesson from the behaviour of those in authority during
the colonial rule. They were, therefore, not prepared to leave anything to chance. They, therefore, considered it of
importance to protect specific basic human rights by incorporating a Bill of Rights in the Constitution in the form of
Fundamental Rights. These fundamental rights were intended to serve generation after generation. They had to be
stated in broad terms leaving scope for expansion by courts. Such an intention must be ascribed to the Constitution
makers since they had themselves made provisions in the Constitution to bring about a socio- economic
transformation. That being so, it is reasonable to infer that the Constitution makers employed a broad phraseology
while drafting the fundamental rights so that they may be able to cater to the needs of a changing society. It,
therefore, does not need any elaborate argument to uphold the contention that constitutional provisions in general
and fundamental rights in particular must be broadly construed unless the context otherwise requires. It seems well
settled from the decisions referred to at the Bar that constitutional provisions must receive a broad interpretation
and the scope and ambit of such provisions in particular the fundamental rights, should not be cut down by too
astute or too restricted an approach.
In Naz Foundation v Government of NCT of Delhi,51 it was argued that Section 377 of the Indian Penal Code,
1860, inasmuch as it proscribed sexual conduct between Lesbians, Gays, Bisexuals, and Transsexuals (LGBTs),
was in violation of Articles 14,15,19, and 21 of the Constitution. As regards the interpretation of Article 15, the Court
indulged in creative interpretation by holding that the expression sex employed in Article 15 ought to read widely to
include sexual orientation and hence, any discrimination on the basis of sexual orientation would beultra vires the
right to equality. As regards the interpretation of fundamental rights, the Court observed:
The Fundamental Rights, therefore, were to foster the social revolution by creating a society egalitarian to the
extent that all citizens were to be equally free from coercion or restriction by the state, or by society privately; liberty
was no longer to be the privilege of the few. The Constitution of India recognises, protects and celebrates diversity.
To stigmatise or to criminalise homosexuals only on account of their sexual orientation would be against the
constitutional morality.
For other cases on the progressive interpretation of part III of the Constitution see Table 3.1.
Harmonious Construction
In determining the scope and ambit of the fundamental rights, the court may not entirely ignore the directive
principles of state policy laid down in Part IV of the Constitution but should attempt to give effect to both as much as
possible.52 A constitutional provision will not be interpreted in the attitude of a lexicographer, with one eye on the
provision and the other on the lexicon. It is the duty of the court to determine in what particular meaning or particular
shade of meaning the words or expression was used by the constitution-makers, and in discharging the duty, the
court will take into account the context in which it occurs the object for which it was used, its collocation, the general
congruity with the concept or object it was intended to articulate and a host of other considerations. Above all, the
court will avoid repugnancy with accepted norms of justice and reason. The Directive Principles set proximate
goals. When it is the task of examining statutes against the Constitution, it is through these clauses that the court
must look [at] distant vision. The Constitution being sui generis where constitutional issues are under consideration
narrow interpretative rules which may have relevance when legislative enactments are interpreted may be
misplaced...Whatever article of the Constitution it is that the court seek to interpret, whatever statute it is whose
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constitutional validity is sought to be questioned the court must strive to give such an interpretation as will promote
the march and progress towards a socialistic democratic state.53
It is also settled law that if any interpretation is possible which will save an Act from the attack of unconstitutionality,
that interpretation should always be accepted in preference to an alternative interpretation that might also be
possible under which the statute would be void.54 Thus interpreted, it means that the state should certainly
implement the directive principles but it must do so in such a way that its laws do not take away or abridge the
fundamental rights, for otherwise the protecting provisions of Part III will be a mere rope of sand.
In Girijanand v State of Assam,55 the Court observed that the word property had not been defined in the
Government of India Act, 1935, or in the Constitution. Article 31, like Article 19 (1)(f), was concerned with property,
and the two articles occurred in the same chapter which dealt with fundamental rights. Hence, the Court held that it
may, therefore, be safely assumed that in construing the said articles, the words property must bear the same
meaning. The word apparently connotes all those bundles of rights, tangible or intangible, corporeal, which go to
make up ownership.
In JP Unnikrishnan v State of Andhra Pradesh,56 the Court was considering whether the Right to education was a
fundamental right, and whether it flowed from Article 21 . On the relation between Article 21 and Article 45 of the
Constitution, the Supreme Court observed:
This court has also been consistently adopting the approach that the Fundamental Rights and Directive Principles
are supplementary and complementary to each other and that the provisions in Part III should be interpreted having
regard to the preamble and the Directive Principles of the state policy. The initial hesitation to recognise the
profound significance of Part IV has been given up long ago. Also it is reiterated in this decision that the
Fundamental Rights and Directive Principles constitute the conscience of the Constitution. It is also conceded that
since the decision in State of Madras v Champakam Dorairajan,57 there has been a perceptible drift in the courts
approach to the interplay of Fundamental Rights and Directive Principles.58 And so construed, the provisions of art
19 (1)(a), which are general, must yield to Article 194 (1) and the latter part of its cl (3) which are special.59
In Ranjan Dwivedi v Union of India,60 the petitioner, an Advocate facing trial under Section 302, submitted that the
prosecution was being conducted by lawyers engaged by the State on such exorbitant fees, that he could not
afford. Hence, the petitioner argued that his right to be supplied with a lawyer by the State under Article ought to be
read with Article 39-A, by virtue of which, as a matter of procedural fair play, it was incumbent on the State to
provide him with financial assistance to him to engage a counsel of his choice. The court repelled this argument,
and held such a relationship between the fundamental rights and directive principles could not be envisaged. The
Court observed:
Although in earlier decision the court paid scant regard to the directives on the ground that the courts had little to do
with them since they were not justiciable or enforceable like the fundamental rights the duty of court in relation to
the directives came to be emphasised in the later decision which reached its culmination in Kesavanand Bharati v
State of Kerala laying down certain broad propositions. Law of these is that there is no disharmony between the
directives and the fundamental rights because they supplement each other on aiming at the same goal of bringing
about a social revolution and the establishment of a welfare state, which is envisaged in the preamble. The courts,
therefore, have responsibility in so interpreting the Constitution as to ensure implementation of the directives and to
harmonise the social objective underlying the directives with individual rights. Primarily the mandate in Article 39A is
addressed to the legislature and the executive but insofar as the courts of justice can indulge in some judicial law
making within the interstices of the Constitution or any statute before them for construction, the courts too are
bound by this mandate.
38 .Navinchandra Mafatlal v Commr of Income-tax, Bombay City [1955] 1 SCR 829 [LNIND 1954 SC 153], p 836; State of
Madras v Gannon Dunkerley& Co [1959] SCR 379 [LNIND 1958 SC 39], p 391; Thakur Amar Singhji v State of
Rajasthan [1955] 2 SCR 303 [LNIND 1955 SC 36], p 324; Sri Ram Narain Medhi v State of Bombay [1959] Supp (1)
SCR 489, p 496; Jagannath Bakhsh Singh v State of Uttar Pradesh AIR 1962 SC 1563 [LNIND 1962 SC 145], p 1568;
Lakshmana v Additional Income-tax Officer AIR 1961 Mad 146 [LNIND 1960 MAD 75]; Wilaiti Ram v Municipal
Page 5 of 5
Committee, Rupar AIR 1960 Punj 669; Durga Prasad v Custodian v Evacuee Property AIR 1960 Punj 341; Punjab
Distilling Industries Ltd v Commr of Income-tax AIR 1965 SC 1862 [LNIND 1965 SC 32]; Balaji v Income-tax Officer,
Akola AIR 1962 SC 123 [LNIND 1961 SC 261]; Punjab Distilling Industries Ltd v CIT AIR 1965 SC 1862 [LNIND 1965
SC 32]; Tuhi Ram v Land Acquisition Collector, Urban Development, Punjab (1993) Tax LR 89.
39 .Bain Peanut Co v Pinson 75 L Ed 482, p 491, 282 US 499, per Holmes J.
40 .Ashok Kumar Gupta &Anor v State of Uttar Pradesh & Ors and Vidya Sagar Gupta & Ors v State of Uttar Pradesh
&Ors (1997) 5 SCC 201 [LNIND 1997 SC 523].
41 . AIR 1966 SC 657 [LNIND 1965 SC 278], (1966) 1 SCWR 427.
42 . (2006) 8 SCC 212 [LNIND 2006 SC 857].
43 . (1997) 6 SCC 283 [LNIND 1997 SC 775].
44 .Hamdard Dawakhana v Union of India [1960] 2 SCR 671 [LNIND 1959 SC 230], p 694 per Kapur J.
45 .Ashok Kumar Gupta & Anor v State of Uttar Pradesh &Ors and Vidya Sagar Gupta &Ors v State of Uttar Pradesh &Ors
(1997) 5 SCC 201 [LNIND 1997 SC 523].
46 .State of West Bengal v Anwar Ali Sarkar [1952] SCR 284 [LNIND 1952 SC 1], p 359, per Bose J.
47 .Commentaries on the Constitution of the United States, second edn, s 455.
48 .South Carolina v United States 199 US 437, 50 L Ed 261; Patton v United States 281 US 276, 74 L Ed 854; in Misouri
v Holland 252 US 416, 64 L Ed 641, per Justice Holmes :
When we are dealing with words that also are a constituent Act, like Constitution of the United States, we must realise that
they have called into life a being the development of which could not have been foreseen completely by the most gifted
of its begetters. It was enough for them to realise or to hope that they had created an organism; it has taken a century
and has cost their successors much sweat and blood to prove that they created a nation. The case before us must be
considered in the light of our whole experience, and not merely in that of what was said a hundred of years ago.
49 . AIR 2004 SC 1559 [LNIND 2004 SC 107], (2004) 2 SCC 510 [LNIND 2004 SC 107].
50 . (1992) 3 SCC 637 [LNIND 1992 SC 445].
51 . 2009 (160) DLT 277, At the time of publication of this book, the Supreme Court on 11-12-2013, set aside the judgment
of the Delhi High Court in the Naz foundation case.
52 . Re Kerala Education Bill AIR 1959 SC 956, pp 966-67; MSM Sharma v Sri Krishna Sinha AIR 1959 SC 395 [LNIND
1958 SC 163], 410: Article 19 (1)(a) ... general, yields to Article 194 (1)(3) ... special; Chandra Mohan v State of Uttar
Pradesh AIR 1966 SC 1987 [LNIND 1966 SC 148].
53 .Atam Prakash v State of Haryana AIR 1986 SC 859 [LNIND 1986 SC 47], (1986) Punj LJ 191, (1986) 1 Punj LR 329,
(1986) 1 Cur CC 641; (1986) 1 Land LR 478, 1986 (1) Supreme 628 Rev LR 226, 1986 Sim LC 132, 1986 UJ 642 (SC),
1986 Cur Civ LJ 490 (SC), (1986) 2 SCC 290 (5J).
54 .Charanjit Lal Chowdhary v Union of India AIR 1951 SC 41 [LNIND 1950 SC 55].
55 . AIR 1956 Assam 33: there can be no acquisition of the right to enjoy property free of land revenue, and there can,
therefore, be no question of paying compensation when the land is assessed to land revenue, which is so long held
free of land revenue.
56 . AIR 1993 SC 2178 [LNIND 1993 SC 1110], (1993) ALJ 341, AIR 1993 SCW 863 .
57 . AIR 1951 SC 2261.
58 .State of Tamil Nadu v L Ahu Kavur Bai (1986) 1 Mad LJ 8 (SC).
59 .MSM Sharma v Sri Krishna Sinha AIR 1959 SC 395 [LNIND 1958 SC 163], (1959) Supp (1) SCR 806, p 860, per Das
CJ.
60 . (1983) 3 SCC 307 [LNIND 1983 SC 126].
End of Document
Analogous Provisions in other Constitutions and Foreign Precedents
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the Constitution
Great caution is required to be exercised when relying upon analogous provisions of other Constitutions and judicial
precedents under them. The contention that the Indian Constitution, being a written one, must be assumed to have
an American background and is based upon an acceptance of that theory of separation of powers, which
determined the main lines on which the Constitution of the United States came to be drawn up, cannot be accepted.
The broad fact which stands out is that the executive provided by our Constitution is a removable executive, i.e., an
executive of the parliamentary type, such as in Britain.
In DEmden v Pedder,61 the Court observed:
We cannot discharge the fact that the Constitution of the Commonwealth was framed by a convention of
representatives from several colonies. We think that, sitting here, we are entitled to assumewhat, after all, is fact of
public notorietythat some, if not all, of the framers of that Constitution were familiar not only with the Constitution of
the United States, but with that of the Canadian Dominion and those of the British colonies. When, therefore, under
these circumstances, we find embodied in the constitutional provisions undistinguishable in substance, though
varied in form, the provisions of the Constitution of the United States which had long since been judicially
interpreted by the Supreme Court of that Republic, it is not an unreasonable inference that its framers intended that
like provisions should receive like interpretation.
In Babulal Parate v State of Bombay,62 a Bill was introduced in the House of the People on the report of the States
Reorganisation Commission, and as recommended by the President under the proviso to Article 3 of the
Constitution, contained a proposal for the formation of three separate units. Subsequently, Parliament amended
some of the clauses and passed the Bill which came to be known as the States Reorganisation Act, 1956. The Act
videSection 8 (1) constituted a composite State of Bombay instead of the three separate units as originally
proposed in the Bill. The petitioner contented that the Act was passed in contravention of the provisions of Article 3
of the Constitution, since the Legislature of Bombay had not been given an opportunity of expressing its views on
the formation of the composite State. In this regard, the petitioner sought to rely on Article IV of the American
Constitution to buttress his argument. The Court rejected this reliance on foreign Constitutions, and held:
We bring to our task such considerations as are germane to the interpretation of an organic instrument like the
Constitution; but it will be improper to import into the question of construction doctrines of democratic theory and
practice obtaining in other countries, unrelated to the tenor, scheme and words of the provisions which we have to
construe...None of the constituent units of the Indian union was sovereign and independent in the sense the
American colonies or the Swiss cantons were before they formed their federal unions. The Constituent Assembly of
India, deriving its power from the sovereign people, was unfettered by any previous commitment in evolving a
constitutional pattern suitable to the genius and requirements of the Indian people as a whole. Unlike some other
federal legislatures, Parliament, representing the people of India as a whole, has been vested with the exclusive
power of admitting or establishing new states, increasing or diminishing the area of an existing state or altering its
boundaries, the legislature or legislatures of the states concerned having only the right to an expression of views in
the proposals. It is significant that for making such territorial adjustments, it is not necessary even to invoke the
provisions governing constitutional amendments.
Similarly, in Indra Sawhney v Union of India,63 reliance was sought to be placed on the affirmative action policies
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of the United States to justify reservations for other backward classes in India. The Court rejected such reliance,
and held:
Before proceeding further, it may be mentioned that many decisions were cited of American courts dealing with
affirmative action for Negroes, and a parallel was attempted to be drawn from it for justifying reservation for other
backward classes. But this ignores that unlike the United States, our Constitution itself provide for reservation for
backward classes, therefore, it is unnecessary to drive inspiration from decisions given by an American court on
equal protection clause. They may be relevant for classification, and the next test under Article 14 or even for
judging if the provision by being arbitrary was violative of equality of doctrine, but they cannot furnish relevant
guideline for interpreting Article 16 (4).
In State of Uttar Pradesh v Deoman Upadhyaya,64 the question before the Court was whether the classification
made under Section 27 of the Indian Evidence Act, 1872, i.e. making a statement admissible when made by a
person in custody and inadmissible when made by a person not in custody, was in violation of Article 14 of the
Constitution or not. Subba Rao J., in the minority, sought to rely on American cases to justify declaring the provision
to beultra vires Article 14. Before he embarked on that, his Lordship gave the following explanation for reliance on
American decisions:
Article 14 of the Constitution of India is adopted from the last clause of s. 1 of the 14th Amendment of the
Constitution of the United States of America, and it may reasonably be assumed that our Constituent Assembly
when it enshrined the guarantee of equal protection of the laws in our Constitution, was aware of its content
delimited by judicial interpretation in the United States of America. In considering the authorities of the superior
courts in the United States, we would not therefore be incorporating principles foreign to our Constitution, or be
proceeding upon the slippery ground of apparent similarity of expressions or concepts in an alien jurisprudence
developed by a society whose approach to similar problems on account of historical or other reasons differs from
ours.
61 . 1 CLR 91, p 113.
62 . AIR 1960 SC 51 [LNIND 1959 SC 148], p 54; Kesavananda Bharati v State of Kerala (1973) 4 SCC 225 [LNIND 1973
SC 154], p 378, per Sikri CJ.
63 . AIR 1990 SC 477 [LNIND 1989 SC 517], (1992) JT (6) 273 (SC).
64 . AIR 1960 SC 1125 [LNIND 1960 SC 161], pp 1131-32.
End of Document
Interpretation of Legislative Powers
NS Bindra
the Constitution
The doctrine of liberal interpretation has a special application in interpreting the ambit of the various entries in the
legislative lists included in Schedule VII of our Constitution.65 It is well-settled principle that while considering the
extent of legislative competence of a legislature with respect to an entry contained in the seventh schedule of the
Constitution, the entry must be given its widest amplitude.66 The position after the amendment by the 42nd
Amendment in 1976 is that the state legislature has exclusive jurisdiction to pass legislation regulating procedure in
rent and revenue courts. It is also competent, though not exclusive, to pass legislation in respect of administration
of justice and constitution and organisation of all courts except the Supreme Court and High Court. Entries in the
three lists should be construed liberally. In passing a legislation, which is within its competence, a legislature may
incidentally encroach upon the field which has been earmarked in another list exclusively for the Parliament. But
that by itself will not make the legislation void. The test is to find out whether the legislation be still good in respect
of a matter which comes within the ambit of the power of the state legislature, though it incidentally trenches upon a
field reserved for the Parliament.67 The legislative entries must be given a large and liberal interpretation, the
reason being that the allocation of the subjects to the lists is not by way of scientific or logical definition but by way
of a mere simplex enumeratio of broad categories.68 Legislative power normally includes all incidental and
subsidiary powers, but the power to tax is neither incidental nor subsidiary to the power to legislate on a matter or
topic.69 A legislative entry does not merely enunciate powers; it specifies a field of legislation and widest import
and significance attached to it. Power to legislate on a specified topic includes power to legislate in respect of
matters which may fairly and reasonably be said to be comprehended therein. A taxing entry, therefore, confers
power upon the legislature to legislate for matters, ancillary or incidental, including provisions for preventing evasion
of tax. The power to confiscate goods carried in a vehicle cannot be said to be fairly and reasonably comprehended
in the power to legislate in respect of taxes on sale or purchase of goods.70 In the case of legislative entry
conferring power of taxation, if the subject matter is enacted but there exists no legal definition of it, it would be
competent on the part of the state legislature to give it a wide meaning and it would not necessarily be governed by
mere judicial decisions or interpretation of any and every fiscal statute. It will be different; however, if the subject
matter itself has been defined by some statute, that definition should prevail.71 A federal constitution with its nice
balance of jurisdiction and of individual rights and state powers, and that it must be approached in a broad liberal
spirit, so as, if possible, to validate legislative and administrative action.72
In Duggan v Income-tax Commissioner, Bombay,73 their Lordship observed:
A large and liberal construction should be placed upon all entries in Schedule VII of the Government of India Act
and the widest import and significance to the language used by Parliament in these various entries. It must not be
forgotten that the legislature created by the Government of India was a sovereign legislature within its own sphere
and that when a topic was assigned to a particular legislature in respect of which it could legislate, then all possible
powers with regard to that topic must be attributed to that legislature.
The legislatures in our country possess plenary powers of legislation. This is so even after the division of legislative
powers, subject to this that the supremacy of the legislatures is confined to the topics mentioned as entries in the
list conferring respective powers on them. These entries, it has been ruled on many occasion, though meant to be
mutually exclusive, are sometimes not really so. They occasionally overlap, and are to be regarded as enumeratio
simplex of broad categories. Where in a organic instrument, such enumerated powers of legislation exist, and there
is conflict between rival list, it is necessary to examine this impugned legislation in its pith and substance, and only if
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that pith and substances fall substantially within an entry or entries conferring legislative power, the legislation valid,
notwithstanding a slight transgression upon a rival list. It is equally well-settled that the power to legislate on an
ancillary matter can be said to be reasonably included in the given power.74
According to the Supreme Court, the cardinal rule of interpretation is that the entries in the legislative lists are not to
be read in a narrow or restricted sense and that each general word should be held to extend to all authority or
subsidiary matters which can fairly and reasonably be said to be comprehended in it. The widest possible
construction, according to the ordinary meaning of the words in the entry, must be put upon them. Reference to
legislative practice may be admissible in reconciling two conflicting provisions in rival legislative lists. In construing
the words in a constitutional document conferring legislative power, the most liberal construction should be put upon
the words so that the same may have effect in their widest amplitude.75 In the case of legislative entry conferring
power of taxation, if the subject matter is enacted but there exists no legal definition of it, it would be competent on
the part of the state legislature to give it a wide meaning and it would not necessarily be governed by mere judicial
decisions or interpretation of any and every fiscal statute. It would be different; however, if the subject matter itself
has been defined by some statute, in such situation, that definition should prevail.76 A federal constitution needs to
maintain a neat balance of jurisdiction and of individual rights and state powers, and that it must be approached in a
broad liberal spirit, so as, if possible, to validate legislative and administrative action.77
In Varsha Kapoor v Union of India78 the Delhi High Court dispelled the argument that the Domestic Violence Act
wasultra vires the Constitution because it provided protection only to women and not men. The Court accepted the
possibility of a man becoming the victim of domestic violence, but such cases it opined would be few and far
between, thus not requiring or justifying the protection of parliament.. Such a legislation the Court pointed out was
permitted by article 15 (3) of the Constitution and hence within the legislative power of Parliament. Even as the High
Court held that the women protection ushered by the legislation was constitutionally permissible, it simultaneously
ruled that it was not correct to contend upon reading the statute in its entirety that women could not be arraigned as
respondents under it.
65 . Re CP Motor Spirit Act AIR 1939 FC 1, p 31; Commr of Income-tax, West Bengal v Benoy Kumar [1958] SCR 101
[LNIND 1957 SC 68], p 107; Navinchandra Mafatlal v Commr of Income-tax, Bombay [1955] 1 SCR 829 [LNIND 1954
SC 153], p 836; Chendulal Jathelal Jayaswal v State of Gujarat AIR 1964 Guj 59 [LNIND 1963 GUJ 116]; State of
Haryana v Santlal (1993) 4 SCC 380.
66 .Virendrapal Singh v State of Uttar Pradesh (1977) All LJ 892; Harakchand Ratanchand v Union of India AIR 1970 SC
1453 [LNIND 1969 SC 199].
67 .Harish Tara Refractories Pvt Ltd v Certificate Officer AIR 1985 Cal 56 [LNIND 1984 CAL 160]; relying on Ishwari
Kheton Sugar Mills v State Uttar Pradesh AIR 1980 SC 1955 [LNIND 1980 SC 161]: about setting up special court for
bank dispute.
68 .Assistant Commr, Urban Land-tax v Buckingham and Carnatic Co Ltd [1970] 1 SCR 268 [LNIND 1969 SC 163], p 277,
per Ramaswami J; State of Uttar Pradesh v Bar Council AIR 1971 All 186, p 189, per Dwivedi J.
69 .State of Mysore v Cawasji& Co AIR 1971 SC 152 [LNIND 1970 SC 454], per Shah J.
70 .Check-Post Officer v Abdulla AIR 1971 SC 792 [LNIND 1970 SC 457], per Shah J.
71 .Dakhineswar Sarkar v Commercial-tax Officer AIR 1957 Cal 283 [LNIND 1957 CAL 12], p 292.
72 .Champakam Dorairajan v State of Madras AIR 1951 Mad 120 [LNIND 1950 MAD 92].
73 . AIR 1952 Bom 261 [LNIND 1951 BOM 152], p 263; followed in Amina Umma v Income-tax Commr AIR 1954 Mad
1120 [LNIND 1954 MAD 67], p 1122; Raghubir Singh v Union of India AIR 1954 Punj 261: word disposal in Entry 41 of
List III is wide enough to cover the extinguishment of mortgage.
74 .State of Rajasthan v G Chawala AIR 1959 SC 544 [LNIND 1958 SC 166], p 546.
75 .Elet Hotels Investments Ltd v Union of India AIR 1990 SC 1664 [LNIND 1989 SC 293], 1990 Tax LR 651, (1989) 44
Taxman 304, [1989] 178 ITR 140, (1989) 77 CTR 168, (1989) 74 STC 146 [LNIND 1989 SC 293], (1989) 94 (2)
Taxation 55.
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76 .Dakhineswar Sarkar v Commercial-tax Officer AIR 1957 Cal 283 [LNIND 1957 CAL 12], p 292.
77 .Champakam Dorairajan v State of Madras AIR 1951 Mad 120 [LNIND 1950 MAD 92].
78 . Decided on 3rd June 2010 http://www.indiankanoon.org/doc/1107375/ This decision reaffirmed a similar ruling made
in Aruna Parmod Shah Vs. Union of Indian (Writ Petition (Crl.) No.425 of 2008).
End of Document
Doctrine of Pith and Substance
NS Bindra
the Constitution
Entries to the legislative lists are not sources of legislative power but are merely topics or fields of legislation and
must receive a liberal construction, inspired by a broad and generous spirit and not in a narrow and pedantic sense.
The expression with respect to in Article 246 brings in the doctrine of pith and substance in the understanding of the
exertion of the legislature power, and wherever the question of legislative competence is raised, the test is whether
the legislation looked at as a whole is substantially with respect to the particular topic of legislation. If the legislation
has a substantial and not merely a remote connection with the entry, the matter may well be taken to be a
legislation on the topic.79 Where the legislature is supreme, as in England, the Parliament has the right to make or
unmake any law whatever. Its legislative jurisdiction is not confined to any particular or enumerated subjects. There
is under the circumstances no question in England for the Parliament exceeding the limits of its legislative sphere
the question for consideration in either case would be whether the legislature in question has exceeded its specified
and enumerated powers. In India, notwithstanding the adoption of a three-fold division of powers, some overlapping
between the several lists is inevitable. The doctrine of pith and substance means that if an enactment substantially
falls within the legislative powers of a legislature expressly conferred by the Constitution, the enactment cannot be
held to be invalid, merely because it incidentally encroaches on matters assigned to another legislature.80
Ray J. observed in Bennett Coleman & Co v Union of India:81
...the tests of pith and substance of the subject-matter and of direct and of incidental effect of the legislature are
relevant to questions of legislative competence but they are irrelevant to the question of infringement of
fundamental rights...this is a sound and correct approach to interpretation of legislative measures and state action
in relation to fundamental rights.
The court in Bank Nationalization case82 laid down tests:
First, it is not the object of the authority making the law impairing the right of citizen nor the form of action that
determines the invasion of the right; Secondly, it is the effect of the law and the action upon the right which attracts
the jurisdiction of the court to grant relief. The direct operation of the Act upon the rights form the real test. By direct
operation is meant the direct consequence or effect of the Act upon the rights. The test of pith and substance is
generally and more appropriately applied when a dispute arises as to the legislative competence of the legislature
and it has to be resolved by reference to the entries to which the impugned legislation is relatable. Where there is a
conflict between two entries in the legislative lists and legislation by reference to one entry would be competent but
not by reference to the other, the doctrine of pith and substance is invoked for the purpose of determining the true
nature and character of the legislation in question.
In Zameer Ahmed Latifur RehmanvState of Maharashtra & Ors83 the constitutional validity of Section 2 (1)(e) of the
MCOCA, so far it relates to `promoting insurgency was challenged on the ground that the State government did not
possess the competence to enact such a legislation. The Court subsequent to examining the pith and substance of
the State Act found no merit in the contention that the MCOCA, in any way, directly punished insurgency. The
legislation the Court ruled dealt with insurgency indirectly only to bolster the definition of organized crime.
No Conflict between Entries in the Same List

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As there can be no question of conflict between two items in the same list, there is no warrant for restricting the
natural meaning of one for the simple reason that the same subject might, in some aspect, come within the purview
of the other.84 Where the combined operation of two or more Acts, which form part of a scheme, invades the
constitutional limitations on legislative competence; then one or the other statute or both become constitutionally
void. This is not the case where the said Acts are, all taken together, within the competence of the same legislative
authority, unless it is clearly made out that some other kind of constitutional limitation is infringed thereby.85
Conflict between Entries in Different Lists to be Avoided
As far as possible, an attempt must be made to reconcile entries in the Union List, the state list and the concurrent
list, and the court must avoid attributing to the Constituent Assembly an intention of bringing about a conflict
between the powers of the state legislature and Parliament.86
Consequently in Association of Natural Gas v Union of India,87 it was observed that an Entry in one List of the
Constitution cannot be so interpreted as to cancel or obliterate another Entry or render the other Entry meaningless.
In case of apparent conflict, it is the duty of the court to iron out the crease and avoid conflict by reconciling the
conflict. If any Entry overlaps or is in apparent conflict with another Entry, every attempt should be made to
harmonise the same. When the words are wide enough to bring a particular power within two mutually exclusive
jurisdictions, recourse must be had to the context and scheme of the Act. The expression including the control of
rent in Entry 3 of list I meant that the control of rents contemplated by this entry is in relation to the house
accommodation which expression precedes the expression including the control of rent. The expression including is
an expression of intention, and not the expression of limitation. The nature of that additional power was that
Parliament should not only regulate house accommodation in the sense of acquiring, requisitioning or allocating
houses in cantonment areas, but may also, in respect of the houses so acquired, requisitioned or allocated, control
rents. Therefore, the control of rents with which Parliament could deal is not control of rents which had no
relationship with the house accommodation which has to be regulated for the purpose of accommodation. It was not
the intention of the Constituent Assembly to confer upon Parliament the power to control rents between private
landlords and tenants; that power was left to the state legislature under list II. Therefore, the state legislature was
competent to enact the Amending Act 1951 and to apply it to the cantonment area.88
Same Rules Irrespective of Form of Government
In Pannalal Lahoti v State of Hyderabad,89 Misra CJ. observed:
It is not the form of government or the nature of the law-making authority which governs the object underlying its
laws. In every form of government, the power to make laws vests in some authority or the other. Whether that
authority is given to a federal or the unitary legislature or it is enjoyed by an absolute ruler immaterial for
determining the intention underlying a legislation.
Ansari J. agreeing with him, observed:
It is true that judiciary in written federal constitution generally interprets and construes the constitution but this is the
inevitable consequence of all written ruling instruments, be they federal or unitary, or something of lesser
importance...the principles applied in the interpretation and construction of the written Constitutions are not different
to those used in construing laws enacted by legislatures where the Constitutions have not been reduced into
writing...a written Constitution is generally interpreted like any other statute by reference to its terms and without
any consideration of the policy and the possibility of abuse of powers.
Therefore, his Lordship said the authority of courts in countries with written Federal Constitution relating to
emergency legislations should not be ruled out on the only ground that a particular legislation is by an authority
where power was not reduced to writing.90 Manohar Pershad J. in his dissenting opinion, however, observed:91
Federation connotes among other things the supremacy of a written Constitution, setting up a Central government,
clothed with legislative, executive and judicial powers, which exercised within the authority prescribed by the
Constitution. This limitation of authority is in contrast to the supremacy of the legislature under a unitary form of
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government. There are no practical limits to the authority of a supreme legislature, such as, the Imperial Parliament
of Great Britain except the lack of executive power to enforce its enactments. But in a federation neither the
legislature of the Central government nor the legislature of a component entity is supreme. Each such legislation
can only assert its supremacy within the limits assigned by the Constitution.
Act and its Subject Matter to be considered
In order to decide the legislatures competence with regard to an Act, the courts must look first at the Act itself and
consider what the Act is and what is the subject matter with which the Act is dealing.92 Reading clauses (1) and (2)
of Article 245 of the Constitution, it is clear that the state legislatures have no extra-territorial powers of legislation.
But it does not follow that a state legislation which is in substance in respect of matters within the competence of
the state legislative assembly would be ultra vires merely because it may have possible effect beyond the territorial
limits of the state.93
That is to say that a law enacted by a state legislature cannot, in the absence of a territorial nexus, have any extra-
territorial operation. SR Das CJ. observed:94
Sufficiency of territorial connection involves a consideration of two elements: (a) the liability sought to be imposed
must be real, not illusory; and (b) the liability sought to be imposed must be pertinent to that connection.
The legislative power of the provincial legislature to levy a tax on sale of goods is confined and restricted only to the
transaction of sale and understood by the Parliament of the United Kingdom in the law relating to the sale of goods.
Any attempt of the legislature to tax under the guise of or under the pretense of such a power, transaction, which is
wholly outside it, will be ultra vires and must be declared invalid. Building contracts, which term includes contracts
for the construction of dams, road work, construction of bridges, etc, are always considered in law as entire and
indivisible contracts in the sense that the complete fulfillment of the promise by one party is a condition precedent to
the right of the other to call for the fulfillment of any part of the promise by the other. There is no element of sale of
the materials in a building contract. The property in the materials passes to the owner of the land because they are
fixed in pursuance of the contract to build and along with the corpus, which ultimately results by the erection of the
superstructure, the materials also pass to the owner of the land. When the words or expressions used in a
legislative list have to be construed, the rule of construction of pari materia statutes is not strictly applicable nor is it
a conclusive or infallible test. The Court must, in such a case, try to ascertain the scope and ambit of the power
intended to be conferred by the entry and consequently, though it may resort to judicial pronouncements and
legislative practice, prevailing at the time when the Constitution was promulgated, the intention of the framers of the
Constitution must be ascertained by reference to the plain meaning of the words and expressions under it.
Consequently, in Gannon Dunkerley v State of Madras,95 the Court held that if the Madras General Sales Tax Act,
1939, as amended in 1947, intended to catch in the net of tax works contracts, the amendments would be ultra
vires of the provincial legislature as they had no power to tax transactions which are not sale of goods.
Power to Legislate in Respect of all Ancillary and Subsidiary Matters Covered by an Entry
In Subrahmanyam Chettiar v Muttuswami Goundan,96 the Madras Agriculturists Relief Act was challenged as
being ultra vires the powers of the Provincial Legislature. The Federal Court repelled this contention, and Gwyer CJ.
observed:
It must inevitably happen from time to time that legislation, though purporting to deal with a subject in one list,
touches also on a subject in another list, and the different provisions of the enactment may be so closely intertwined
that blind adherence to a strictly verbal interpretation would result in a large number of statutes being declared
invalid because the legislature enacting them may appear to have legislated in a forbidden sphere. Hence the rule
which has been evolved by the Judicial Committee whereby the impugned statute is examined to ascertain its pith
and substance or its true nature and character, for the purpose of determining whether it is legislation with respect
to matters in this list or in that.
In the same case Sulaiman J. observed:

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In view of the large number of items in the legislative lists, it is almost impossible to prevent a certain amount of
overlapping. Absolutely sharp and distinct lines of demarcation are not always possible...To avoid such difficulties,
the Imperial Parliament has thought fit to use the expression with respect to97 which obviously means that looking
at the legislation as a whole, it must substantially be with respect to matters in one list or the other. A remote
connection is not enough.
The Federal legislature has full and extensive power to legislate with respect to matters in List I and has also power
to legislate with respect to matters in List III. A Provincial legislature has exclusive power to legislate with respect to
List II minus matters falling in List I or List III; has concurrent power to legislate with respect to matter in List III
minus matters falling in List I. The dominant position of the Central legislature with regard to matters in List I and
List III is thus established. But the rigour of this interpretation is relaxed by the use of the words with respect to
which signify pith and substance and do not forbid a mere incidental encroachment.98
In Govindi v State of Uttar Pradesh,99 the Petitioner argued that the State Legislature under the powers given to it
under Entry 36 of List II of the 7th schedule, could only legislate with regard to acquisition of property if there had
been an enactment laying down principles of cash payment under Entry 42 of list III. As the principles of payment of
compensation laid down in the U. P. Zamindari Abolition and Land Reforms Act, 1951, were not principles of
payment of cash compensation, the Act was challenged to be ultra vires the legislative competence of the State.
The Court rejected this contention, and held:
The power to legislate is given by Article 246 of the Constitution. Under that Article a state legislature has power to
legislate with respect to matters enumerated in the various entries in List II and also with respect to matters
mentioned in List III subject to any legislation by Parliament. Since there is no parliamentary legislation under Entry
42 of List II, the state could legislate upon the subject matter of that Entry. It could legislate with respect to
principles of compensation, etc. The expression with respect to is of wide import and any legislation can be made
so long as it is with respect to the subject matter of a particular entry (provided of course it is not inconsistent with
the other provisions of the constitution). It follows that the Uttar Pradesh state legislature could enact under Entry 42
of List III in respect of property acquired that compensation shall be paid in bonds or even that there shall be no
compensation. So the Uttar Pradesh Act I of 1951 cannot be attacked on this ground.
In State of Bombay v Narottamdas Jethabhai,100 the Supreme Court dealing with Entry 53 of List I, Entry 2 of List
II, and Entry 15 of List III observed:
The legislative power conferred on the Provincial legislature by Item I of List II has been conferred by use of
language which is of the widest amplitude (administration of justice and constitution and organisation of all courts)
the phrase employed would include within its ambit legislative power in respect to jurisdiction and power of courts
established for the purpose of administration of justice. Moreover, the words appear to be sufficient, to confer upon
the Provincial legislature the right to regulate and provide for the whole machinery connected with the
administration of justice in the Province. Legislation on the subject of administration of justice and constitution of
courts of Justice would be ineffective and incomplete unless and until the courts established under it were clothed
with the jurisdiction and power to hear and decide causes. I am, therefore, of the opinion that under Item I of List II
the Provincial legislature has complete competence not only to establish courts for the administration of justice but
to confer on them jurisdiction to hear all causes of civil nature, and that this power is not curtailed or limited by
power of legislation conferred on the two legislatures under Items 53 of List I, and 2 of List II and 15 of List III. On
the other hand, these three items confer on the respective legislatures power to legislate when dealing with
particular subjects within their exclusive legislative field, to make laws in respect of the jurisdiction and powers of
court that will be competent to hear causes relating to those subjects, in other words, this is a power of creating
special jurisdictions only.
Rajiv Sarin v State of Uttarakhand,101 the Court was considering the conflict between the Indian Forest Act, 1927,
and the Kumaun and Uttarakhand Zamindari Abolition and Land Reforms Act, 1960. It was argued by the petitioner
that since the 1960 Act provided ownership rights over private forests, it had encroached into the domain of the
Parliament to make laws relating to forests under Entry 17A, List-III.Per contra, the State argued that the 1960 Act
was dealing with agrarian reforms and hence, the power to legislate was sourced from Entry 18, List-II and Entry-
42, List III. The Court held in favour of the State, and observed that the object of the 1960 Act was to ensure land
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rights for tillers, and the inclusion of forests in it was an ancillary encroachment on the power of Parliament. Hence,
the impugned provisions of the Act were held to be within the legislative competence of the State.
Ambit of Different Entries Dependent Upon Facts of Each Case
The ambit of the different entries should be determined with reference to the facts of each case coming up for
decision and abstract definitions circumscribing their scope should be avoided. It is by confining decisions to
concrete questions, which have actually arisen in circumstances, the whole of which are before the court, that
injustice to future suitors can be avoided.102 The task of the Court, then, is to ascertain the limits of the power
granted by the Constitution, we cannot extend these limits by way of interpretation.103
Validity of Act not Dependent Upon the Label it Bears
The validity of an enactment has to be determined not with reference to the name and label the statute has been
given, but with reference to the substance of the enactment, its true nature and character or its pith and substance
as it is called. The Privy Council applied this doctrine in interpreting the term trade and commerce in Sections 51 (1)
and 82 of the Australian Constitution Act, in these words:104
The words used are necessarily general and their full import and true meaning can often be appreciated when
considered as the year goes on in relation to the vicissitudes of fact which from time to time emerge. It is not that
the meaning of words change, but the circumstances illustrate and illuminate the full import of that meaning...It may
be that in 1900 the framers of the constitution were thinking of border tariffs and restrictions in the ordinary sense
and desired to exclude difficulties of that nature, and to abolish the barrier of the state boundaries so as to make
Australia a single country. Thus the framers presumably did not anticipate those commercial and industrial
difficulties which have, in recent years, led to marketing schemes and price control, or traffic regulations such as
those for the co-ordination of rail and road-services, to say nothing of new inventions, such as aviation or wireless.
The problems, however, of the Constitution can only be solved as they emerge by giving effect to the language
used.
In Megh Raj v Allah Rakhia,105 the Court was considering the vires of the Punjab Restitution of Mortgaged Lands
Act. The Act was enacted for the relief of mortgagors by giving them restitution of the mortgaged premises on
conditions more favourable than those under the mortgage deed and by providing for a procedure before the
Collector. It was argued by the State that the expression land occurring Entry 21 of List II comprised both corporeal
and incorporeal rights and interest, and would extend to create summary jurisdiction for the disposal of land
disputes. The Court agreed with the States contention, and held:
As to item 21, Land, the governing word, is followed by the rest of the item, which goes on to say, that is to say,
These words introduce the most general concept-rights in or over land. Rights in land must include general rights
like full ownership or leasehold or all such rights. Rights over land would include easements or other collateral
rights, whatever form they might take. Then follow words which are not words of limitation but of explanation or
illustration, giving instances which may furnish a clue for particular matters: thus there are the words relation of
landlord and tenant and collection of rents. These words are appropriate to lands which are not agricultural equally
with agricultural lands... Item 2 is sufficient to give express powers to the Provinces to create and determine the
powers and jurisdiction of Courts in respect of land, as a matter ancillary to the subject of item 21.
Consequences how Far Affecting Validity
The consequences of a particular construction, if the text be explicit, can have no impact on the construction of a
constitutional provision.106 If the language employed is plain and unambiguous, the same must be given effect to
irrespective of the consequences that may arise.107 Consequences may well be considered in fixing the scope and
ambit of a power, where the text of the statute creating the power is unclear and ambiguous.108 In case of
taxation, the same principles have been held to be applicable. The names employed and definitions given by the
legislature109 to a certain tax are not the determining factors in ascertaining the real nature and incidence of the
tax; nor is the mode or machinery of assessment;110 nor the standard on which a tax is levied;111 the conclusive
criterion for determining the same. In such cases, as in case of other laws, the validity of a particular tax would
depend upon its real nature and incidence.112
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79 .Ujagar Prints v Union of India AIR 1989 SC 516 [LNIND 1988 SC 548], (1988) (4) JT 330 (SC), (1988) ECR 578,
(1988) 38 ELT 535 [LNIND 1988 SC 548], (1988) 18 ECC 435, (1988) 27 STL 207.
80 .State of Bombay v Balasara [1951] 2 SCR 682 [LNIND 1951 SC 42]; State of Bombay v Narottam Jethabhai AIR 1951
SC 99, per Das J; Border Security Force (BSF) v State of Meghalaya AIR 1989 Gau 81 [LNIND 1988 GAU 42].
81 . (1972) 2 SCC 788 [LNIND 1972 SC 514], pp 812-13.
82 . R.C. Cooper v Union of India AIR 1970 SC 564
83 . Civil Appeal No. 1975 OF 2008 decided on 23.4.2010 http://www.indiankanoon.org/doc/37174/.
84 .State of Bombay v Norottam AIR 1951 SC 69 [LNIND 1950 SC 57]; Jyotikana v Income-tax Commr, Assam AIR 1954
Assam 113, 126, per Ram Labhaya J:
There is no need for giving the expression agriculture in Entry 46, List II, a restricted meaning on the ground that some
process which may legitimately be regarded as agriculture is conferred by the expression forest which is the subject-
matter of a separate entry (Entry No 19) in the same list.
85 .King-Emperor v Benoari Lal AIR 1945 PC 48 [LNIND 1944 PC 32].
86 .FE Darukhanawala v Khemchand AIR 1954 Bom 254 [LNIND 1953 BOM 86].
87 . (2004) 4 SCC 489 [LNIND 2004 SC 1507].
88 .Ibid; Sheetal Prasad Gupta& Ore v State of Bihar &Ors AIR 1990 Pat 64 : it was held that laws relating to co-
operatives are covered by Item No 32 of List II and are not laws relating to incorporation, regulation and winding up of
the trading corporation.
89 . AIR 1954 Hyd 129, p 135.
90 .Pannalal Lahoti v State of Hyderabad AIR 1954 Hyd 129, pp 148-49.
91 .Ibid p 139.
92 .State of Bombay v RMD Chainarbaugwala AIR 1956 Bom 1 [LNIND 1955 BOM 2].
93 .Siddique v State of Bihar(1949) 4 DLR 29.
94 .State of Bombay v RMD Chamarbugwala AIR 1957 SC 699 [LNIND 1957 SC 38].
95 . AIR 1954 Mad 1130 [LNIND 1954 MAD 101]; Jubilee Engineering Co v Sales-tax Officer AIR 1956 Hyd 79.
96 . AIR 1941 FC 47, p 51; quoted in Federation of Hotel and Restaurant v Union of India AIR 1990 SC 1637 [LNIND
1989 SC 299], (1990) Tax LR 623 [LNIND 1989 SC 299], [1989] 178 ITR 97 [LNIND 1989 SC 299], (1989) 77 CTR 141,
(1989) 74 STC 102 [LNIND 1989 SC 299], (1989) 46 Taxman 47 [LNIND 1989 SC 299], (1989) 3 SCC 634 [LNIND
1989 SC 299]; Prafulla Kumar v Bank of Commerce AIR 1947 PC 28; Durgeshivar Dayal v Secretary, Bar Council,
Allahabad AIR 1954 All 728 [LNIND 1953 ALL 258]; Sri Durgaji v State of Bihar AIR 1953 Pat 65.
97 . The expression is used in all the clauses of Article 246 as well as in several other articles.
98 .United Provinces v Atiqa Begum AIR 1941 FC 16, p 25, [1940] FCR 110.
99 .Govindi (Mst) v State of Uttar Pradesh AIR 1952 All 88 [LNIND 1951 ALL 98].
100 . AIR 1951 SC 69 [LNIND 1950 SC 57].
101 . (2011) 8 SCC 708 [LNIND 2011 SC 742].
102 . Lefray, Canadian Constitution, p 72.
103 .Diamond Sugar Mills v State of Uttar Pradesh [1961] 3 SCR 242 [LNIND 1960 SC 339], p 249.
Page 7 of 7
104 .James v Commonwealth [1936] AC 587 , p 614; quoted in Goodyear India Ltd v State of Haryana &Anor
AIR 1990 SC 781 [LNIND 1989 SC 725], (1989) (4) JT 229.
105 . AIR 1942 FC 27; quoted in Goodyear India Ltd v State of Haryana AIR 1990 SC 781 [LNIND 1989 SC 725],
(1989) (4) JT 229.
106 .Kesavananda Bharati v State of Kerala (1973) 4 SCC 225 [LNIND 1973 SC 154], p 989, per Chandrachud J.
107 . Ibid, per Hegde J, 552, p 566, per Ray J, 690, per Palekar J; Bengal Immunity Co Ltd v State of Bihar AIR
1955 SC 661 [LNIND 1955 SC 122].
108 .Kesavananda Bharati v State of Kerala (1973) 4 SCC 225 [LNIND 1973 SC 154], p 989, per Chandrachud J,
p 690. per Palekar J.
109 .Punjab Flour Mills v Province of Punjab AIR 1947 FC 14.
110 .Byramjee v Province of Bombay AIR 1940 Bom 65, 70.
111 . Re Government of Ireland Act [1936] AC 352.
112 .R v Caledonian Collieries [1928] AC 358; GG-in-Council v Province of Madras AIR 1945 PC 98 [LNIND 1945
PC 3]; Attorney-General v Murphy Lumber Co AIR 1930 PC 173.
End of Document
Interpretation of Fiscal Powers under the Constitution
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the Constitution
In Godfrey Philips v State of Uttar Pradesh,113 the constitutional validity of a number of legislations which taxed
luxuries was at issue. The issue under consideration was the competence of the state legislatures in imposing such
tax under Entry 62 of List II. The expression used therein was taxes on luxuries including taxes on entertainments,
amusements, betting and gambling. The court held that from a construction of the relevant entry it was clear that
taxes must be imposed on an activity rather than goods, whereas the impugned legislations had imposed taxes on
tobacco, intoxicants i.e. taxes were imposed on goods which was not permissible. The Court observed:
Taxing entries must be construed with clarity and precision so as to maintain such exclusivity, and a construction of
a taxation entry which may lead to overlapping must be eschewed. If the taxing power is within a particular
legislative field it would follow that other fields in the legislative lists must be construed to exclude this field so that
there is no possibility of legislative trespass...whether the person, property or business to be taxed is within or
associated with the state, or in other words, whether there is a sufficient territorial connection between the object to
be taxed and the taxing state; and whether there is anything in the Constitution or in any other law for the time
being in force to indicate that the tax is not valid.114
In Bijayananda Giri v State of Bihar,115 the question before the Court was whether contributions made under
Section 70 of the Bihar Hindu Religious Trusts Act was in the nature of a fee and not in the nature of a tax, and
whether the state legislature was competent to enact this provision. The Court held the provision to be ultra vires
the legislative competence of the state, and observed:
It is true that there is an element of compulsion in the payment of the fees, and it is also true that the fee is not
uniform and there is no relationship between the amount of the fee and the services rendered. But the main
consideration in such a case is whether the contribution goes to swell the public revenue. The contribution imposed
under Section 70 does not go to the consolidated fund of the State of Bihar. Under the Act, the authorities may be
raising revenue from the trustees of religious endowments under Section 70, but the levy is not made for any
government purpose but for the limited specified purpose laid down in Section 70, namely, defraying the expenses
incurred in the administration of the Act.
In State of Bombay v United Motors (India) Ltd,116 the Court held that Article 286 (l)(a), read with the explanation,
prohibited taxation of sales or purchases involving inter-state elements by all states except the state in which the
goods are delivered for the purpose of consumption therein. The latter state was left free to tax such sales or
purchases, which power it derives not by virtue of the explanation, but under Article 246 (3) read with Entry 54 of
List II. A Full Bench of the Supreme Court, by a majority of four to three,117 reversed its earlier decision in the
United Motors case,118 and held that until parliament by law lifted the ban, no state would have the right to impose
tax on goods sold or purchased in the course of inter-state trade or commerce.119 In the United Motors case, it
was held that Article 286 (l)(a) read with the explanation thereto and construed in the light of Articles 301 and 304
prohibited the taxation of sales or purchases involving inter-state elements by all states except the state in which
the goods were actually delivered for the purposes of consumption therein. Also, clause (2) of Article 286 did not
affect the power of the state in which delivery of goods was made, to tax the sales or purchases of the kind
mentioned in the explanation, the effect on which was not to convert inter-state transactions into inter-state
transactions and to take them out of the operation of clause (2) of the article. The Chief Justice in Bengal Immunity
observed that whichever view was taken of the explanation to that article, it should be limited to the purpose the
Page 2 of 2
constitution-makers had in view when they incorporated it in clause (1). The explanation to clause (l)(a), it was held,
could not legitimately be extended to clause (2), either as an exception or as a proviso thereto or read as curtailing
or limiting the ambit of clause (2). If the explanation could not be read into clause (2), it should follow that except in
so far as Parliament might by law provide otherwise no state law could impose or authorise the imposition of any
tax on sales or purchases when such sales or purchases took place in the course of inter-state trade or commerce
and irrespective of whether such sales or purchases did not fall within the explanation.
In Govindarajulu Naidu v State of Madras,120 the petitioners argued that under Rule 16 (2) (i) and (ii) of the
Madras Turnover and Assessment Rules as purchasers of rawhides and skins which were either tanned or
exported by them, the goods that they had purchased and exported to foreign countries either directly or through
other dealers, were to be exempt from taxation under Article 286 (1)(b). The State repelled this contention by
claiming that the dealers were not eligible for any relief under Article 286as they paid tax on the purchase value of
untanned hides and skins bought for tanning, and that all the tanned goods tanned by them and were sold to other
dealers in the State, and were not directly exported. Hence, the Court was called upon to interpret Article 286 . The
Court upheld the power of the State to not grant exemptions from taxation to the petitioners, and held:
The effect of the explanation to Article 286 is to remove the limitation imposed by arts 245 and 285 (1) on the power
of the state to enact extraterritorial legislation and permit the state to levy sales-tax on extra-state sale, provided
goods thereunder are delivered within the state. Thus, where purchases are made in another state by a person
living in Madras and the documents of title are received by post in Madras, or the price is paid to the banks in
Madras against delivery of documents of title and the contracts in respect of the sales are concluded in the former
state, they will be extra-state sales not liable for taxation under the Madras General Sales Tax Act. If, however, the
goods are actually delivered in Madras, they will confer on the State of Madras, a power to tax the goods under the
explanation to Article 286 (l)(a). Under the Constitution, the state enjoys a power under Entry 54 to tax goods on
their entry into a local area, subject only to the limitation contained in Article 286 . There is no conflict between the
power of states to tax sales under Entry 54 and the power to impose taxes on the use of goods to which me
explanation relates.
113 . (2005) 2 SCC 515 [LNIND 2005 SC 65].
114 .Surendra Transport and Engineering Co Ltd v State of Punjab AIR 1954 Punj 264.
115 . AIR 1954 Pat 266.
116 . AIR 1953 SC 252 [LNIND 1953 SC 42]; reversing (1953) 55 Bom LR 246; reversed in Bengal Immunity Co
Ltd v State of Bihar AIR 1955 SC 661 [LNIND 1955 SC 122].
117 .Bengal Immunity Co Ltd v State of Bihar AIR 1955 SC 661 [LNIND 1955 SC 122].Das acting CJ, Bose, Imam
and Bhagwati JJ; Jagannadha Das, Venkatrama Aiyar and Sinha JJ dissenting.
118 .State of Bombay v United Motors (India) Ltd AIR 1953 SC 252 [LNIND 1953 SC 42]: all cases not in
consonance with this ruling should be considered to be overruled.
119 .Bengal Immunity Co Ltd v State of Bihar AIR 1955 SC 661 [LNIND 1955 SC 122].
120 . AIR 1953 Mad 116 [LNIND 1952 MAD 159].
End of Document
Doctrine of Implied Powers 121
NS Bindra
the Constitution
The proposition that the ordinary rules for construing Acts of Parliament do not apply to the Constitution may be true
in one sense, namely, that the Constitution is not a Code going into minute details of the means by which the
government is to be carried into effect by the sovereign power created by it. There are many powers necessary to
that end, which are conferred and one would expect them to be conferredby necessary implication, rather than in
express words. It is, however, always a question of construction, whether we are called upon to construe the terms
of section, or to decide whether powers are necessarily to be implied in addition to those which are expressed. In
this respect, the same rules of interpretation apply to any other written document.122 A court, in construing a
provision of the Constitution may, imply negative from affirmative words where the implication promotes, but not
where it defeats the intention.123 The doctrine of construction by implication is limited to the extent of preventing
judicial amendment of the fundamental law. Thus, the Supreme Court has declared that a court has no right to
insert any clause in the Constitution which is not expressed and cannot be fairly implied.124
In Queen v Burah,125 Lord Selborne states the duty of courts of justice in ascertaining whether a statute violates a
written Constitution in these terms:
The only way in which they can properly do so, is by looking to the terms of the instrument by which, affirmatively,
the legislative powers were created, and by which negatively, they are restricted. If what has been done is
legislation, within the general scope of the affirmative words which give the power, and if it violates no express
condition or restriction, by which that power is limited (in which category Would, of course, be included any Act of
Imperial parliament at variance with it), it is not for any court of justice to inquire further, or to enlarge constructively
those conditions and restrictions.
In Ramkrishna v Municipal Committee,126 the Supreme Court observed:
It is natural enough, when considering the ambit of an express power, to give a broad interpretation to the former at
the expense of the latter. The case, however, is different, whereas in the constitution there are two complementary
powers, each expressed in precise and definite terms. There can be no reason in such a case for giving a broader
interpretation to one power rather than to the other.
Ancillary Powers to be Truly Incident to Main Powers
In King v Kidman,127 Isaacs J Said:
The construction will probably be aided by first considering what is included in the words any power vested by this
Constitution in the government of the Commonwealth. Whenever any such power is given, there is given with it by
implication every ancillary power that is necessary to the existence of the government, and the proper exercise of
the direct power that is intended to execute. Such ancillary powers must, in my opinion be truly incident to the main
powers, in other words, they must be impliedly included in the grant. This is how I understand the maxim quando
lex ali quid concedit concede re videtur et illud, sine quo res ipsa esse non potest.
Court may Complement But not Supplement a Granted Power

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The extent of the Federal legislative authority was well stated by Isaacs J in Australian Boot Trade Employees
Federation v Whybrow128 in these terms:
It is not open to the grantee of the power actually bestowed to add to its efficacy, as it is called, by some further
means outside the limits of the power conferred, for the purpose of more effectively coping with the evils intended to
be met...The authority must be taken as it is created, taken to the full, and not exceeded. In other words, in the
absence of express statement to the contrary, you may complement, but you may not supplement a granted power.
In MP Special Police Establishment v State of MP,129 the Madhya Pradesh High Court accorded a liberal
interpretation with respect to Section 197 of the Code of Criminal Procedure, 1973, empowering the Governor to act
in his discretion in granting the sanction for the prosecution of the ministers. This ruling was subsequently
challenged in the Supreme Court.130 The issue raised was whether prosecution of ministers was a function which
could be exercised by the Governor in his discretion within the meaning of the words used in Article 163 of the
Constitution. It was contended that if the Governor were to use his power under art 163 to sanction the conviction of
a minister after consultation with the Council of Ministers would expose the exercise of the power to abuse. The
court in this regard held that the interpretation of a provision of the Constitution would not differ or deflect simply
because of the possibility of abuse of power by the Council of Ministers in a given case. The Court observed that it
was well settled that unless a particular Article expressly so provided, an obligation of the Governor to act in his
discretion could not be inferred by implication.
121 . For more detailed analysis see Part I chapter 2 supra.
122 .State of Tasmania v Commonwealth of Australia& State of Victoria (1904) 1 CLR 329, p 338, per Griffith CJ.
123 .Cohen v Verginia& Wheat 264 (US), 5 L Ed 257.
124 .Prigg v Pennsylvania 16 Pet 539 (US), 10 L Ed 1060.
125 . 3 AC 889, p 904-5; Suvina B Redkar v Government of Goa (1991) 4 Bom CR 695; relying on ReArticle 143,
Constitution of India and Delhi Law Act 1912 AIR 1951 SC 332 [LNIND 1951 SC 40]; Raj Narain v Chairman and
Administrative Committee AIR 1954 SC 569 [LNIND 1954 SC 102].
126 . AIR 1950 SC 11 [LNIND 1950 SC 7]; Kishori v King (1950) ILR All 69; GG-in-Council v Province of Madras
AIR 1954 PC 93.
127 . 20 CLR 427, p 440.
128 . 11 CLR 311, p 338; followed in Stemp v Australian Glass Manufacturers Co Ltd 23 CLR 22, pp 232-34.
129 . (2003) Cr LJ 4610.
130 .Madhya Pradesh Special Police Establishment v State of Madhya Pradesh AIR 2005 SC 325 [LNIND 2004
SC 1133].
End of Document
Doctrine of Implied Prohibition
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the Constitution
Doctrine of Implied Prohibition
In India, a state legislature has power to make laws with respect to only those matters that are exhaustively
enumerated in Lists 2 and 3 and has no power whatsoever to make laws with respect to any matter that cannot be
found in them. A state legislature has no residuary power at all. Adopting a law made by another legislature is not a
matter to be found in Lists 2 and 3. Therefore, no law made by a state legislature can be justified on the ground that
though it is not with respect to any of the matters dealt with in Lists 2 and 3, it is simply adopting a law validly made
by another legislature.131
131 .Durgeshwar Dayal v Secretary, Bar Council, Allahabad AIR 1954 All 728 [LNIND 1953 ALL 258].
End of Document
Doctrine of Repugnancy
NS Bindra
the Constitution
The doctrine of occupied field cannot be invoked to test the validity of a state law under Article 254 for in the
framework of the Indian Constitution, the concurrent list is not a forbidden field to the state legislature and the mere
fact that the state legislature has legislated on a matter in the concurrent list is not enough to attract the mischief of
Article 254.There is hardly any scope for invoking this doctrine in India in view of Article 254 of the Constitution of
India. The very fact that a particular subject is in the concurrent list means that both Parliament and state
legislatures are entitled to legislature with regard to that subject. Therefore, Parliament cannot exclude or oust the
jurisdiction of the state legislature by legislating on any particular subject. The Indian Constitution clearly recognises
the right of both Parliament and state legislatures to legislate concurrently with regard to a subject mentioned in the
concurrent list, and therefore the doctrine of repugnancy to be applied in India is not so stringent as would be
applied in other countries where constitutional position is different. There is no justification for laying down different
tests for determining repugnancy, one for the purpose of Article 254 (2) of the Constitution and another for implied
repeal by a later statute.132 The repugnancy that has got to be found is the repugnancy in the actual provisions of
the two laws and not with regard to the subject-matter of the two laws. The proper test is whether effect can be
given to the provisions of both the laws, or whether both the laws can stand together. If effect cannot be given to
both the laws, and both the laws cannot stand together, then the law made by Parliament must prevail as against
the law made by the state legislature.133 It is to be noted that the question of encroachment of one legislature into
the field of another is to be determined not by degree but by substance but nevertheless the extent of intervention is
not altogether irrelevant for the determination of the question. Its provisions may advance so far into the federal
territory as to show that its true nature is not concerned with provincial matters.134
In Hoechst Pharmaceuticals v State of Bihar,135 it was argued by the petitioner that Section 5 (3) of the Bihar
Finance Act, 1981, which was a State law relatable to Entry 54 of List II of the Seventh Schedule, and which
provided that no dealer would be entitled to collect the surcharge levied on him was void in terms of the opening
words of Art. 246 (3) of the Constitution as it was in direct conflict with paragraph 21 of the Drugs (Price Control)
order 1979, issued under Section 3 (1) of the Essential Commodities Act, 1955, which was a Union Law relatable to
Entry 33 of List III and which enabled the manufacturer or producer of drugs to pass on the liability to pay sales tax
to the consumer.
The Court held that the power of the State Legislature to make a law with respect to the levy and imposition of a tax
on sale or purchase of goods relatable to Entry 54 of List II and to make ancillary provisions in that behalf was
plenary and was not subject to the power of Parliament to make laws under Entry 33 of List III, and that there was
no warrant for projecting the power of Parliament to make a law under Entry 33 of List III into the States power of
taxation under Entry 54 of List II. Hence, the State Act was held to be valid and not repugnant to the Central Act. On
the doctrine of repugnancy, the Court observed:
The question of repugnancy under Article 254 (1) between a law made by Parliament and a law made by the State
Legislature arises only in case both the legislations occupy the same field with respect to one of the matters
enumerated in the Concurrent List and there is direct conflict between the two laws. It is only when both these
requirements are fulfilled that the State law will, to the extent of repugnancy become void. Article 254 (1) has no
application to cases of repugnancy due to overlapping found between List II on the one hand and List I and List III
on the other. If such overlapping exists in any particular case, the State law will be ultra Vires because of the non
obstante clause in Article 246 (1) read with the opening words Subject to in Article 246 (3) . In such a case, the
State law will fail not because of repugnance to the Union law but due to want of legislative competence...It is no
Page 2 of 3
doubt true that the expression a law made by Parliament which Parliament is competent to enact in Article 254 (1)
is susceptible of a construction that repugnance between a State law and a law made by Parliament may take place
outside the Concurrent sphere because Parliament is competent to enact law with respect to subjects included in
List III as well as List I. But, if Article 254 (1) is read as a whole, it will be seen that it is expressly made subject to
Clause (2) which makes reference to repugnancy in the field o Concurrent List. In other words, if Clause (2) is to be
the guide in the determination of the scope of cl. (1), the repugnancy between Union and State law must be taken to
refer only to the Concurrent field. Article 254 (1) speaks of a State law being repugnant to a law made by
Parliament or an existing law. The words with respect to qualify both the clauses in Article 254 (1) viz., a law made
by Parliament which Parliament is competent to enact as well as any provision of an existing law. The underlying
principle is that the question of repugnancy arises only when both the legislatures are competent to legislate in the
same field, i.e., with respect to one of the matters enumerated the Concurrent List.
In Engineering Kamgar Union v Electro Steels Castings Ltd,136 the Court was considering the conflict between the
provisions on retrenchment and compensation in the Industrial Disputes Act, 1947, and the Uttar Pradesh Industrial
Disputes Act, 1947.Under the Central Act, permission was required to be taken before the closure of an industry,
whereas under the State Act, permission was not required to be taken if the industrial establishment had less than
300 workmen. The Court held that the provisions were clearly in conflict, and hence, the State Act was held to be
void for inconsistency with the Central Act.
As regards the doctrine of repugnancy, the Court observed:
Recourse to the said principles, however, would be resorted to only when there exists direct conflict between two
provisions and not otherwise. Once it is held that the law made by the Parliament and the State Legislature occupy
the same field, the subsequent legislation made by the State which had received the assent of the President of
India indisputably would prevail over the parliamentary Act when there exists direct conflict between two
enactments. Both the laws would ordinarily be allowed to have their play in their own respective fields. However, in
the event, there exists any conflict, the Parliamentary Act or the State Act shall prevail over the other depending
upon the fact as to whether the assent of the President has been obtained therefore or not...The Central Act and
the State Act indisputably cover the same field. The jurisdiction of the State Legislature to enact a law by a
Parliamentary legislation is not impermissible. Subject to the provisions contained in Article 254 of the Constitution
of India, both will operate in their respective fields. The Constitutional Scheme in this behalf is absolutely clear and
unambiguous. In this case, this Court is not concerned with the conflicting legislations operating in the same field by
reason of enactments made by the Parliament and the State in exercise of their respective legislative powers
contained in List I and List II of the Seventh Schedule of Constitution of India but admittedly the field being the
same, a question would arise as regard the effect of one Act over the other in the event it is found that there exists
a conflict. For the said purpose, it is not necessary that the conflict would be direct only in a case wherein the
provisions of one Act would have to be disobeyed, if the provisions of the other is followed. The conflict may exist
even where both the laws lead to different legal results.
In RR Patil (Dr) v State of Karnataka,137 the Karnataka High Court was required to examine the ambit of Entry 66
of List I whereby Parliament has been empowered to make laws providing for regulating the procedure for
admissions to the courses of higher education. Relying on the previous Supreme Court decisions, the court held
that it was within the legislative competence of the Union to make laws providing for regulating the procedure for
admissions and that state laws become void to the extent of inconsistency. The Court observed:
If there be any conflict in the regulations framed by the University Grants Commission (UGC) on one hand and
Medical Council of India or Dental Council of India on the other hand, then the norms formulated by the UGC are to
be accorded primacy. Such a power in relation to all the institutions of higher education could have been exercised
only by the UGC because it is only this body which had been vested with the duty to ensure co-ordination among
the institutions of higher education, which necessarily includes universities and the colleges affiliated to it.
132 .M Karunanidhi v Union of India 1977 LW 130 (Cr), 90 LW 467.
133 .State v Javerbhai AIR 1953 Bom 171; Deo Narayan Lal Das v State of Bihar (1992) 2 PLJR 560.
Page 3 of 3
134 .Prafulla v Bank of Commerce AIR 1947 PC 28: holding that the power to make laws in respect of money-
lending necessarily includes the power to effect the moneylenders right with respect to promissory notes given in
money-lending transaction, and since the pith and substance of the Provincial Act was money-lending (Item 27, List II),
it was not void for encroaching upon Item 28 of the Federal List which deals with promissory notes.
135 . (1983) 4 SCC 45 [LNIND 1983 SC 148]
137 . AIR 2002 Kant 211 [LNIND 2001 KANT 735].
End of Document
Doctrine of Colourable Legislation
NS Bindra
the Constitution
The doctrine of colourable legislation really postulates that though the letter of the law is within the limits of the
powers of the legislature, in substance, the law has transgressed those powers and by doing so, it has taken the
precaution of concealing its real purpose under the cover of apparently legitimate and reasonable provisions.138
The doctrine of colourable legislation implies that though a legislature is not fettered in the sphere of its power, it
cannot under the guise or the pretense, or in the form of an exercise of its own powers, carry out an object which is
beyond its powers, or trespass on the exclusive powers of the other.139 In other words, a legislature cannot, under
the colourable exercise of its powers, enact a law which does not fall within its sphere or nullify expressly or by
implication, statutes which it could not enact.140 It may further be noted that the mere fact that an Act has a lawful
object does not necessarily make it a valid Act. An Act may have a perfectly lawful object, but it may seek to
achieve that object by invalid methods. Where an Act is void or inoperative, any attempt to exclude attack on it will
be deemed to be an attempt to achieve by indirect means what the legislature was not entitled to do.141 The effect
of legislation has also a bearing on the question whether a legislation is a colourable piece of legislation. For this
purpose, the court may take into account any general knowledge of which the court would take judicial notice, and
may, in a proper case, be required to be informed by evidence as to what the effect of the legislation will be. In
examining the effect of an Act, account may also be taken of any other Act operating or intended to operate, or
recently operating in the province.142 Here again, the doctrine of pith and substance comes into play. The question
for determination in such cases also is whether in substance the legislation falls within the enumerated or specified
class of subjects within the legislative jurisdiction of the legislature or whether on the contrary, in the guise of an un-
enumerated class, it is an encroachment on an excluded class.143
In KCG Narayan Deo v State of Orissa,144 the Court was considering whether the Orissa Estates Abolition Act,
1952, was in effect a colourable legislation that purported to secure material wealth for all and prevent the
concentration of wealth, but actually through the methods of compensation, sought to tax agricultural produce,
which was the domain of the Parliament under List-I. The Court did not agree with the petitioner, and held that the
impugned legislation was not a colourable exercise of legislative power. On colourable legislation and tests to
ascertain whether a legislation was such or not, the Court observed:
A Court must be blind indeed if it looks merely at the language of a statute- and ignores its obvious purpose, effect
and operation. Hence, when, a statute is impugned as being a mere colourable device to evade constitutional
provisions, the Court is required to scrutinise in its entirety, the impugned statute as well as other Bills or Acts which
may form part of a scheme for such evasion, for the purpose of ascertaining the true nature and character or pith
and substance of the impugned statute. Sometimes, it may so happen that statute, when considered independently,
may be free from any objection but if it could be shown that it is part of a general scheme on the part of the
Legislature, by a series of Acts to achieve an object which it could not validly achieve in one piece of legislation, the
statute would also be struck down as unconstitutional...
138 .Sonapur Tea Co Ltd v Deputy Commr and Collector of Kamrup AIR 1962 SC 137.
139 .AG for Alberta v AG for Canada AIR 1939 PC 53.

Page 2 of 2
140 .CW Saddlery v King [1921] AC 91 ; AG for British Columbia v AG for Canada AIR 1937 PC 91;
CNagcshwara Rao v Andhra Pradesh State Road Transport Corpn AIR 1959 SC 308 [LNIND 1958 SC 139], p 315;
State of Vindhya Pradesh v Moradhwaj AIR 1960 SC 796 [LNIND 1960 SC 54].
141 .Megh Raj v Allah Rakhia AIR 1947 PC 72.
142 .AG for Alberta v AG for Ontario AIR 1939 PC 53.
143 . Wynes, Legislative and Executive Power, p 45.
144 . [1954] SCR 1 [LNIND 1953 SC 70]; State of Vindhya Pradesh v Moradhwaj Singh [1960] 3 SCR 106 [LNIND
1960 SC 54], p 112.
End of Document
Supposed Spirit of Constitution not to Restrict Powers
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the Constitution
The Court cannot declare a limitation under the notion of having discovered something in the spirit of the
Constitution, which is not even mentioned in the instrument. It is difficult upon any general principles, to limit the
omnipotence of the sovereign legislative power by judicial interpretation, except so far as the express words of a
written Constitution give that authority.145 It is well settled that recourse cannot be had to the spirit of the
Constitution when its provisions are explicit in respect of a certain right or matter. When the fundamental law has
not limited either in terms or by necessary implication, the general powers conferred on the legislature, it is not
possible to deduce a limitation from something supposed to be inherent in the spirit of the Constitution. The spirit of
the Constitution cannot prevail as against its letter.146 Statutes made for the public good, such as the Constitution
of India ought to be liberally construed:status pro publicocommodo late interpretatur. In doing so another principle
should not be lost sight of, namely, that safety of the people is the supreme law: salus populi est suprema lex. But
the application of the doctrines does not mean that the exact meaning of the words can be departed from or that in
order to give effect to what is considered to be the underlying principle it is open to the court to add by implication,
intentions and objects to a statute, which cannot be properly construed from a clear reading of the written words
(sentu so verborum est anima legis) the meaning of the words in the spirit of the law.147 The preservation of
uniformity of construction of the federal Constitution operates to limit the effect of any state interpretations of that
document. If the effect of a clause of the Constitution depended wholly or in part upon the construction given to it by
a state, different constructions would be given to it by different states and the spirit, if not the letter, would be
broken.148 Courts are not at liberty to declare an Act void because in their opinion, it is opposed to a spirit
supposed to pervade the Constitution but not expressed in words. Where the fundamental law has not limited,
either in terms or by necessary implication, the general powers conferred upon the legislature, the courts cannot
declare a limitation under the notion of having discovered something in the spirit of the Constitution which is not
even mentioned in the instrument. The spirit of the law may well be an elusive and unsafe guide and the supposed
spirit can certainly not be given effect to in opposition to the plain language of the sections of the Act and the rules
thereunder.149
The observations of Das J (as he then was) in Keshawa Madhava Menon v State of Bombay150 are worth noting:
An argument founded on what is claimed to be the spirit of the Constitution is always attractive for it has a powerful
appeal to sentiment and emotion; but a court of law has together the spirit of the Constitution from the language of
the Constitution. What one may believe or think to be the spirit of the Constitution cannot prevail if the language of
the Constitution does not support that view.
In Ghulam Ahmad Ashai v State,151 it was argued that that Section 19 of the Preventive Detention Act, 1950, was
ultra vires the Constitution inasmuch as it was opposed to the spirit of the Constitution and the principles of natural
justice because it took away vested rights. The Court rejected this argument unequivocally, and held:
No statute can be held invalid on the ground that it is opposed to the spirit of the Constitution. Whether an Act is
ultra vires or not has to be seen with reference to the provisions of the Constitution alone and nothing else... In
these circumstances it cannot be said that Section 19 is ultra vires of the Constitution on the ground that it is not in
accordance with the spirit of the Constitution.
Page 2 of 2
145 .AK Gopalan v State of Madras AIR 1950 SC 27 [LNIND 1950 SC 22],p 42.
146 .State of Bihar v Kameshwar Singh AIR 1952 SC 252, pp 309, 315.per Mahajan and Das JJ; AK Gopalan v
State of Madras AIR 1950 SC 27 [LNIND 1950 SC 22], pp 42, 80.
147 .State of Bihar v Kameshwar Singh AIR 1952 SC 252, per Mahajan and Das JJ.
148 .Prigg v Pennsylvania 16 Pet 539 (US), 10 L Ed 1060, per M Lean J.
149 .AK Gopalan v State of Madras AIR 1950 SC 27 [LNIND 1950 SC 22]; Rananjaya Singh v Baijnath Singh AIR
1954 SC 749 [LNIND 1954 SC 119]; Rama Krishna Singh v State of Mysore AIR 1960 Mys 338, p 345; Kcsavananda
Bharati v State of Kerala (1973) 4 SCC 225 [LNIND 1973 SC 154], p 988, per Chandrachud J; Kesham Madhava
Mcnon v State of Bombay AIR 1951 SC 128 [LNIND 1951 SC 3]; State of Bihar v Sir Kameshwar Singh AIR 1952 SC
252, pp 302, 306.
150 . 1951 SC 128-29. [1951] SCR 228 [LNIND 1951 SC 3], pp 232-33.
151 . AIR 1954 J&K 59.
End of Document
Writ Jurisdiction under Article 226
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the Constitution
Writ Jurisdiction under Article 226
It is well-settled that the articles of Constitution have no retrospective effect unless otherwise expressly provided for
in Constitution itself. No relief under Article 226 can be granted where the acts complained of have taken place long
before the Indian Constitution came into force.152 The enforcement of fundamental rights does not, however,
exhaust the scope of Article 226 . It could be utilised for other purposes as well. Other purposes include
enforcement of legal rights which are not necessarily fundamental in nature. The remedy under Article 226 is
available to the petitioner against any illegal act or order which happened before Constitution, where the petitioner
does not claim that any substantive right created for the first time by Constitution has been violated, but what he
does claim is that the order challenged could not have been passed even under the then existing laws and
rules.153Article 226 has created no substantive rights, but only provided a new form of remedy through the High
Courts. Where the right asserted or the liability denied is one under the ordinary laws of the country and not one
arising out of Constitution, and an assertion or denial has taken place after Constitution has come into force, it
cannot be said that application of Article 226 is excluded by the fact that such right or liability originated before the
commencement of Constitution.154
152 .Nelakanta Iyer v State AIR 1955 Tr&Coch 46.
153 .Hiranmoy Bhattacharjee v State of Assam AIR 1954 Assam 224; Lakshmi Depi Sugar Mills v Govt of Uttar
Pradesh AIR 1954 All 705 [LNIND 1954 ALL 80]; Hiralal v State of Madhya Pradesh AIR 1954 Nag 258; Ravunny Nair
v State AIR 1954 Tr&Coch 444; Jaising v Tehsildar, Neem-ka-Thana AIR 1954 Raj 200 [LNIND 1954 RAJ 225].
154 .Hindustan Motors Ltd v Union of India AIR 1955 Cal 151: it was further observed that so far as Calcutta High
Court is concerned this is not even a new power.
End of Document
Repeal of Older Constitution by New Constitution
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the Constitution
Repeal of Older Constitution by New Constitution
The adoption of a new Constitution repeals and supersedes all the provisions of the older Constitution not
continued in force by the new instrument. To have a correct appreciation of the scope of the amended clauses of an
article of Constitution, it is necessary to consider the following circumstances:
(i) what was the law before the Act was passed;
(ii) what was the mischief or defect for which the law had not provided;
(iii) what remedy Parliament has provided; and
(iv) the reasons of the remedy.155
Thus the mischief rule has been invoked to interpret the Constitution.
Operation of Amendments
Hidayatullah CJ observed in Madhu Limaye v Sub-Divisional Magistrate:156
Assuming that the Constitution could be amended with retrospective effect (a point not free altogether from
difficulty), the purpose of the amendment is to create a fiction. Whatever may be said of a law declared
unconstitutional before the First Amendment cannot be said of a law which is being considered today after the First
Amendment. The fiction in the amendment is to make the Constitution be read with the new clause and no other
and a law restricting the freedoms in the interests of public order (among others) or in the interests of the general
public must be held to be saved, not as a result of the amendment, but because of these available restrictions
operating from the inception of the Constitution. Therefore, although we consider the matter today, after much
history has been written and then unwritten by retrospective amendments of the Constitution (assuming this to be
permissible), we read the protection of amended clause (2) as available from 26 January 1950 without a break. The
fiction, if given full effect leads to no other conclusion.
155 .Kochuni v State of Madras (Seond Kochuni case) [1960] 3 SCR 887 [LNIND 1960 SC 436], pp 906-07.
156 . [1971] 2 SCR 711, pp 718-19.
End of Document
Doctrine of Eclipse
NS Bindra
the Constitution
Doctrine of Eclipse
Professor Willis in Constitutional Law of the United States, sets out there classes of cases as to the effect of
declaring an Act void:
(i) there are situations where the courts are in substantial agreement that an unconstitutional statute is void
ab initio;
(ii) there is a second class of situation in which the courts are in conflict as to whether the rule should be the
rule of void ab initio or the rule of void from the date of the declaration of unconstitutionality; and
(iii) there is a third class of situations where the courts generally refuse to apply the void ab inito rule, but
instead apply the rule of void from the time of declaration.
Cushman observes:157
In some cases the rigid application of the principle of invalidity works serious injustice. This fact has led the court in
some instances to soften and compromise the strict rule, and to hold in the words of Chief Justice Hughes: The
actual existence of statute prior to such a determination (of unconstitutionality) is an operative fact and may have
consequences which cannot justly be ignored. The past cannot always be erased by a new judicial declaration. The
effect of the subsequent ruling as to invalidity may have to be considered in various aspects with respect to
particular relations, individual and corporate and particular conduct, private or official.
In India, the Supreme Court refused in the case of Keshavan Menon v State of Bombay158 to go so far. The
majority of the Supreme Court agreed in the conclusion with the findings of the High Court by holding that Article 13
(1) was prospective and not retrospective in operation, so that not only past transactions but all pending
proceeding, that is, actions commenced but not terminated, before the commencement of Constitution shall remain
unaffected notwithstanding that they are rendered void under Article 13 (1).
Mahajan J. drew a distinction between the word void in clause (1) and in clause (2). In his opinion, any law made by
the legislature subsequent to the commencement of Constitution, which was inconsistent with the fundamental
rights, would under Article 13 (2) be void ab initio, to the same extent as it is understood in USA but that under
clause (1), the existing law which was so inconsistent, would be void only with effect from the commencement of
Constitution, so that pending proceedings would be governed by the law which was valid when the right or liability
involved in the pending proceedings arose.159
Das J. observed:
... Article 13 (1) does not in terms make the existing laws which are inconsistent with fundamental rights void ab
initio, for all purposes.160 On the contrary, it provides that the existing laws, in so far as they are inconsistent with
the fundamental rights, shall be void to the extent of their inconsistency. They are not void for all purposes, but they
are void only to the extent they come into conflict with the fundamental rights.161 In other words, on and after the
commencement of the Constitution no existing law will be permitted to stand in the way of the exercise of any of the
fundamental rights. Therefore, the voidness of the existing law is limited to the future exercise of the fundamental
rights. Article 13 (1) cannot be read as obliterating the entire operation of the inconsistent laws or to wipe them out
altogether from the statute book, for to do so will be to give them retrospective effect, which they do not
possess.162
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Doctrine of Eclipse
Rajagopala Aiyangar J. answered the question: What is the effect of a law being or being declared unconstitutional
by court? in Mysore Spinning and Manufacturing Co Ltd v Deputy Commercial-tax Officer:163
Two alternative positions are possible. One whereby

(1) An unconstitutional law has a factual existence but is frozen and incapable of enforcement by reason of its
contravening the Constitution. However when the constitutional ban ceases to operate and the fetters,
whose existence, rendered that law moribund, are removed, the law...springs into activity because the
superimposed shackles are removed.
(2) The other possible view is that a law which is repugnant to any provision of the Constitution is not law at all
though found in print. When the courts hold that a law is valid, it is active and enforceable but when the
courts declare that it violates the provisions of the Constitution, the effect of such a declaration or holding,
is to obliterate the law and efface it from the statute book. From this it follows that the lifting of the
constitutional ban whose existence led to the law being unconstitutional does not have the effect of
resurrecting the law. For the thesis is that an unconstitutional law is no law at all, that is, it was non est in
the eye of the law.
In cases where the vires of statutory provision are challenged on constitutional grounds, it is essential that the
material facts should first be clarified and ascertained with a view to determine whether the impugned statutory
provisions are attracted; if they are, the constitutional challenge to their validity must be examined and decided. If,
however, the facts admitted or framed do not attract the imagined provisions, there is no occasion to decide the
issue about the vires of the said provisions. Any decision on the said question would in such a case be purely
academic. Courts are and should be reluctant to decide constitutional points merely as a matter of academic
importance.164 Whether Constitution affirmatively confers power on the legislature to make laws subject wise; or
negatively prohibits it from infringing any fundamental right, both requirements represent are aspects of legislative
power. The Constitution in express terms makes the power of a legislature to make laws in regard to the entries in
the lists of the seventh schedule, subject to the other provisions of Constitution, and thereby circumscribes or
reduces the said power by the limitations laid down in Part III of the Constitution. It follows from the premises that
laws made in derogation or in excess of the power would be ab initio void wholly or to the extent of the
contravention as the case may be. The doctrine of eclipse can be invoked only in the case of valid law, but a
shadow is cast on it by supervening constitutional inconsistency or supervening existing inconsistency; and when
the shadow is removed, the impugned Act is freed from all blemish or infirmity.165
In Re CG Menon,166 arrest warrants were issued by the Court under the Fugitive Offenders Act, 1881. The
petitioner raised an objection, stating that the provisions of the Act were in violation of Article 14 of the Constitution,
and hence, after the coming into force of the Constitution, the provisions of the impugned Act would be void. The
Court relied extensively on foreign judgments to hold that the said Act was in violation of Article 14, and hence, after
the Constitution came into force, the Act would be void till the unconstitutionality was addressed.
In Saghir Ahmad v State Uttar Pradesh,167 the Court had to consider the effect of the introduction of Article 19 (6)
to the Constitution on the Uttar Pradesh State Road Transport Act, 1951, which was enacted prior to the coming
into force of Article 19 (6) . The Court held that under Article 13 (2), if an enactment existing prior to the Constitution
became unconstitutional by virtue of provisions of the Constitution, it would be eclipsed till the unconstitutionality
was lifted. Hence, the impugned Act would be void under Article 13 (2).
157 . Chusman, Leading Constitutional Decisions, ninth edn, pp 247-48; Chicot County Drainage Dist v Baxter State Bank
84 L Ed 349.
158 . AIR 1951 SC 128 [LNIND 1951 SC 3].
159 .Keshavan Madhava Menon v State of Bombay AIR 1951 SC 128 [LNIND 1951 SC 3].
160 . Cf Article 254 (1), where also the word void is used.
161 .State of Bombay v Heman Santal AIR 1952 Bom 16 [LNIND 1951 BOM 115]; Re CG Menon AIR 1953 Mad 729; Ram
Saran v Sunder Singh AIR 1952 Punj 417.
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Doctrine of Eclipse
162 .Keshavan Madhava Menon v State of Bombay AIR 1951 SC 128 [LNIND 1951 SC 3], p 130; Rajeshwari Devi v State
of Uttar Pradesh AIR 1954 All 608 [LNIND 1954 ALL 82]: effect of declaring an Act void is not to render the law void
from the date of its inception.
163 . AIR 1957 Mad 368 [LNIND 1956 MAD 198], pp 373-74; Bhikaji Narain v State of Madhya Pradesh AIR 1955 SC 781
[LNIND 1955 SC 69].
164 .State of Bihar v RB Hardut Roy Atta Mills AIR 1960 SC 378 [LNIND 1959 SC 212], p 380.
165 .Deep Chand v State of Uttar Pradesh [1959] Supp (2) SCR 8, p 40; Bhikaji Narain v State of Madhya Pradesh [1955] 2
SCR 589 [LNIND 1955 SC 69]; State of Orissa v Satyabadi Panda AIR 1961 Ori 196.
166 . Re CG Menon AIR 1953 Mad 729.
167 . AIR 1954 SC 728 [LNIND 1954 SC 128].
End of Document
Effect of Unconstitutionality of an Act
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the Constitution
The American doctrine as laid down by Willoughby is:
The declaration by a court of unconstitutionality of a statute which is in conflict with the Constitution affects the
parties only and there is no judgment against the statute; that the opinion or reasons of the court may operate as a
precedent for the determination of other similar cases, but it does not strike the statute from the statute book; the
parties to that suit are concluded by the judgment, but no one else is bound; a new litigant may bring a new suit,
based on the very same statute, and the former decision cannot be pleaded as an estoppel, but can be relied on
only as a precedent.
The rule does not apply in India in view of the clear and specific provisions of the Indian Constitution. The doctrine
of prospective overruling. again an American innovation, adopted in Golak Nath v State of Punjab,168 and
overruled in Kesavanand Bharati v State of Kerala,169 is yet in the melting crucible, and after the pronouncement
in the latter case, there is no justification for applying the doctrine.170 A declaration of unconstitutionality, brought
about by lack of legislative power, does not stand on a different footing from a declaration of unconstitutionality
brought about by reason of abridgment of fundamental rights. Both these declarations of unconstitutionality go to
the root of the power itself and there is no real distinction between them. They represent but two aspects of want of
legislative power. The legislative power of Parliament and the state legislature as conferred by Articles 245 and 246
stands curtailed by the fundamental rights chapter of Constitution. The authority can be exercised only subject to
the prohibition contained in Article 13 (2).171 If an Act has been declared ultra vires being in violation of
fundamental rights conferred under Pt III of the Constitution, its subsequent inclusion in the Ninth Schedule under
the 17th Constitutional Amendment Act makes it immune from a subsequent attack thereon. It does not need re-
enactment.172 In construing a statute or contract, a court should not hold a provision thereof to be void for
uncertainty, unless it cannot resolve the ambiguity which is said to be contained therein.173
In Behram Khurshid v State of Bombay,174 the Court was considering an order of conviction under Section 66 (b)
of the Bombay Prohibition Act, 1949, which the appellant claimed was unsustainable there was no satisfactory
evidence to show that the appellant had not consumed medicinal tonics but only liquor for which he ought to have
had a permit. In the course of arguments, the Court had to consider the fact that significant provisions of the Act
had been declared unconstitutional in State of Bombay v FN Balsara,175 and had to pronounce on the effect of
such a declaration to the proceedings in the case before it. The Court held the judgment would have the effect of
declaring certain provisions unconstitutional, but the penal proceedings against the present appellant would
continue. On the effect of unconstitutionality for want of legislative competence and the effect of unconstitutionality
for being in contravention of Part III, the Court observed:
The question is, what is the legal effect of a statute being declared unconstitutional. The answer to it depends in two
considerations, - firstly, does the constitutional prohibition which has been infringed affect the competence of the
Legislature to enact the law or does it merely operate as a check on the exercise of a power which is within its
competence; and secondly, it if is merely a check, whether it is enacted for the benefit of individuals or whether it is
imposed for the benefit of the general public on grounds of public policy. If the statute is beyond the competence of
the Legislature, as for example, when a State enacts a law which is within the exclusive competence of the Union, it
would be a nullity. That would also be position when a limitation is imposed on the legislative power in the interests
of the public, as, for instance, the provisions in Chapter XIII of the Constitution relating to inter-State trade and
Page 2 of 2
commerce. But when the law is within the competence of the Legislature and the unconstitutionality arises by
reason of its repugnancy to provisions enacted for the benefit of individuals, it is not a nullity but is merely
unenforceable. Such an unconstitutionality can be waived and in that case the law becomes enforceable...It is
axiomatic that when the law-making power of a State is restricted by a written fundamental law, then any law
enacted and opposed to the fundamental law is in excess of the legislative authority and is thus a nullity. Both these
declarations of unconstitutionality go to the root of the power itself and there is no real distinction between them.
They represent but two aspects of want of legislative power. The legislative power of Parliament and the State
Legislatures as conferred by article 245 and 246 of the Constitution stands curtailed by the fundamental rights
chapter of Constitution. A mere reference to the provisions of article 13 (2) and article 245 and 246 is sufficient to
indicate that there is no competency in Parliament or a State Legislature to make a law which comes into clash with
Part III of the Constitution after the coming into force of the Constitution.
168 . AIR 1967 SC 1643 [LNIND 1967 SC 49].
169 . AIR 1973 SC 1461 [LNIND 1973 SC 154].
170 .Southern Fisheries Corpn v Corpn of the City of Cochin (1977) Ker LT 475.
171 .Behram Khurshid v State of Bombay AIR 1955 SC 123 [LNIND 1954 SC 116], p 145; Deep Chand v State of
Uttar Pradesh AIR 1959 SC 648 [LNIND 1959 SC 3]: declaration of invalidity goes to the root of the mater.
172 .Jagannath v Authorised Officer, Land Reforms [1972] 1 SCR 1055 [LNIND 1971 SC 525], per Mitter J.
173 .Fawcett Properties Ltd v Buckingham County Council [1960] 3 All ER 503, p 508.
174 . AIR 1955 SC 123 [LNIND 1954 SC 116], pp 144-45, per Das J, as he then was: in his dissenting opinion, he
held that the judicial declaration that a part of the section is unconstitutional and void only nullified that offending part in
the sense that it renders that part ineffective against and inapplicable to a citizen who consumes or used liquid
medicinal or toilet preparations containing alcohol, in exercise of his fundamental right. The declaration in Balsaras
case serves to provide a defence only to a citizen who has consumed or used liquid medicinal or toilet preparations.
175 . AIR 1951 SC 318 [LNIND 1951 SC 42].
End of Document
Conclusion
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the Constitution
Conclusion
This chapter demonstrates that the Courts whilst interpreting the Constitution are cognizant of the fact that it is a
Constitution that they are interpreting. The constitutional text is perceived as an evolving and dynamic document
which changes shape and colour depending upon the needs of the polity. Even so effort is made to provide
meaning to every word and phrase in it.
Table 3.1 Interpretation of Fundamental Rights176
Article 14
S. No Name and Citation of the Context of the Case Interpretation of the Court
Case
1. State of West Bengal v Anwar The West Bengal Special The majority held that the
Ali Sarkar, AIR 1952 SC 75 Courts Act, 1950, was establishing of a special
[LNIND 1952 SC 1] enacted with a view to procedure was in violation of
expedite the process of trial Article 14 . It was held that to
of certain offences. In this test a classification made by
regard, Section 3 of the Act law on Article 14, the Court
empowered the State ought to apply the following
Government by constitute twin test:
Special Courts vide a gazette
notification, and Section 5 Whether there was an
provided that A Special Court intelligible differentia created
shall try such offences or by the statute.
classes of offences or cases
or classes of cases, as the
Whether there is a rational
State Government may by
nexus between the object of
general or special order in
the Act and the classification.
writing.
The Act laid down a

procedure for trial before
Special Courts which was
different from the standard
procedure laid down in the
Code of Criminal Procedure
for trial of offences generally.
The respondent, who was
convicted by a Special Court
which tried his case under a
notification issued by the
Government under Section 5,
contended that the said
section was unconstitutional
Page 2 of 9
Conclusion
and void inasmuch as it

contravened Article 14 of the
Constitution.
2. E.P. Royyappa v State of The State Government The Court held that the state
Tamil Nadu, (1974) 2 SCC accorded sanction to the action of transferring the
348 [LNIND 1974 SC 169] creation of a temporary post petitioner and the promotion
of Deputy Chairman in the of a junior to the post of Chief
State Planning Commission Secretary was arbitrary in
in the grade of Chief nature. In a first, the Court
Secretary for a period of one imported the standard of
year and appointed the arbitrariness into Article 14,
petitioner to that post often termed the new doctrine
providing that he shall be of equality, and held that
entitled to the same rank and arbitrary state action was in
emoluments as admissible to violation of Article 14, as
the post of Chief Secretary. arbitrariness was antithetic to
The petitioner did not join this equality.
post and went on leave. On
the petitioners return from
leave the post of Deputy
Chairman was again created
for a period of one year in the
grade of the Chief Secretary
and the petitioner was
appointed to that post. The
petitioner went on leave after
that as well. The petitioner
was subsequently transferred
to the sales tax department,
and a person who was junior
to the petitioner was
promoted as Chief Secretary
and was confirmed in that
post. The promotion of a
junior to the post of Chief
Secretary was challenged by
the petitioner.
3. R K Garg v Union of India, The Court was considering The Court reiterated the twin
(1981) 4 SCC 675 [LNIND the vires of the Special test laid down in Anwar Ali
1981 SC 434] Bearer Bonds (Immunities Sarkar, but curiously sought
and Exemptions) Ordinance, to justify the distinction made
1981, and the Special Bearer by the Act to be real and
Bonds (Immunities and functional on the basis of the
Exemptions) Act, 1981. The object of the Act. The Court
effect of the Ordinance and relied extensively on the
the Act was to allow the circumstances surrounding
possessors of black money to the Act i.e. massive amount
legalize their money by of unrecovered black money
purchase of special bearer existing in the market, instead
bonds issued by the of strictly applying the
government. The object of the principles laid down by
Act was ostensibly to recover previous judgments, and
illegal money and channelize upheld the Act as intra vires
it into economic planning. The Article 14.
petitioner contended that the
act creates a false distinction
between those who have paid
taxes regularly, and those
who have hoarded black
money, and operates to the
Page 3 of 9
Conclusion
detriment of the former.
4. Ekta Shakti Foundation v The question before the Court The Court did not agree with
Government of NCT of Delhi, was whether if a departure the petitioner NGO, and held
AIR 2006 SC 2609 [LNIND had been made by the State that Article 14 could not be
2006 SC 520] in a few cases from the interpreted to mean that if a
eligibility criteria for person derived benefit by
enlistment as an NGO for the illegality, similar persons
Detailed Scheme for Capacity could plead that a benefit
Building of Self Help Groups from the infraction of law
to Prepare and Supply must be allowed to be
Supplementary Nutrition retained. In the opinion of the
under the Integrated Child Court, one illegality could not
Development Service, be compounded by permitting
another NGO could claim similar illegal or illegitimate or
departure from the eligibility ultra vires acts. Hence, the
criteria as a matter of right Court construed Article 14to
under Article 14. have a positive mandate.
5. State of Maharashtra v Indian The question before the Court The Court held the distinction
Hotel & Restaurants was whether a distinction made to be illusory, and held
Association, (2013) 8 SCC made by the joint operation of that dances in prohibited
519 [LNIND 2013 SC 665] Section 33A (1) of the establishments was not only
Bombay Police Act, 1951, limited to sexual
which totally prohibited dance propositioning, but
performances in eating encompassed many more
houses, permit rooms or beer facets to it. Secondly, the
bars, and Section 33B, which Court emphasized that the
allowed such dances in distinction sought to be made
establishments where entry on the basis of the class of
was restricted to members people frequenting both
only and three-starred or establishments militated
above hotels, was ultra against Article 14 and was
viresArticle 14 or not. prima facie discriminatory.
The Court has, in this case,
It was argued by the State chosen a stricter construction
that the dance performed in of Article 14 and the tests
the prohibited establishments prescribed by previous cases
took the form of sexual to arrive at this decision.
propositioning, and that the
class of crowd at the
permitted establishments was
different from the crowd in
prohibited establishments.
Hence, as per the State,
there was an intelligible
differentia at play in the Act.
Articles 15 and 16
Case
6. M R Balaji v State of Mysore, The State of Mysore passed The Court held this
AIR 1963 SC 649 [LNIND an order under which reservation of 68% seats to
1962 SC 320] backward classes were be inconsistent with Article 15
divided into two categories, (4), and held that Article 15
backward classes and more (4) envisaged backwardness
backward classes. The order that was social and
reserved 68% of the seats in educational, and not social or
Page 4 of 9
Conclusion
engineering and medical educational. Further, the

colleges, and other technical Court considered the idea of
institutions, for the reservations under Article 15
educationally and socially (4) to be an exception to
backward classes and Article 15 (1), and held that
Scheduled Castes and the interests of the weaker
Scheduled Tribes, and left sections of society had to be
only 32 per cent seats for the adjusted with the interests of
merit pool. This allocation the community as a whole.
was challenged by the The Court went on to
petitioners. prescribe that reservations
generally ought not to exceed
50%.
7. Air India v Nergeshmeerza, According to the regulations The Courts invocation of

(1981) 4 SCC 335 [LNIND of Air India, an air hostess Article 15 and anti-
1981 SC 366] could be terminated from discrimination was rather
service on the following peculiar and in passing. The
grounds: Court held that termination on
the basis of pregnancy was
(a) On attaining the age of 35 an insult to Indian
years; womanhood, the most
cherished idea of them all,
and hence, the provision
(b) On marriage if it took
ought to be struck down as
place within four years of the
discriminatory. However, the
service; and
Court then proceeded to
increase the number to three
(c) On first pregnancy. pregnancies, finding that
suitable to both business
The same regulations had not interests of the company and
been made for the domestic the upbringing of the children.
airlines company operated by
the government. More The Courts interpretation and
significantly, the conditions of application of Article 15in this
termination for male air case has been often criticized
stewards were different in all as a half-hearted attempt.
respects. The petitioner
challenged this difference to
be in violation of Article 15, as
it amounted to discrimination
on the basis of sex alone.
8. IndraSawhney v Union of The Government issued an In a break from Balaji, the

India, AIR 1993 SC 477 office memorandum Court held that Article 16 (4)
introducing the economic was not an exception to
criterion in granting 27% Article 16 (1), but a
reservations within manifestation of the idea of
government jobs, and equality. The Court observed
reserving another 10% of that reservations could be
vacancies for the socially & accommodated in the non-
educationally backward discrimination provision of
classes. These reservations Article 16 (1) as well. On the
were challenged as being in question of backwardness,
violation of Article 16 (1), and the Court observed that the
the Court was confronted with backward classes of citizens
the question of whether referred to in Article 16 (4)
economic backwardness were socially backward
qualified as backwardness classes of citizens whose
under Article 16. educational and economic
backwardness was a
consequence of their social
Page 5 of 9
Conclusion
backwardness. Hence, the

economic criterion by itself
could not identify a class as
backward unless the
economic backwardness of
the class is on account of its
social backwardness. Thus,
the Court interpreted Article
16to mean that a sole
economic criterion would not
suffice under Article 16.
9. Air India Cabin Crew v The question before the Court The Court interpreted Articles
Yeshaswinee Merchant, AIR was whether fixing the age of 15 and 16 to mean that when
2004 SC 187 [LNIND 2003 retirement from flying duties read together, they create a
SC 548] of Air hostesses at the age of prohibition on direct
50 years with an option to discrimination between
them to accept posts for members of different sexes.
ground duties after 50 and up The test prescribed by the
to the age of 58 years was Court under these Articles
discriminatory and ultra vires was to check whether the
Articles 15 and 16. females would have received
same treatment with males
but for their sex. In the
opinion of the Court, the two
Articles did not prohibit
special treatment of women.
However, subsequent to this

interpretation and on the
basis of the fact that the air
hostesses had signed a
service agreement agreeing
to these conditions, the Court
held that the service
conditions were not ultra vires
Articles 15 and 16.
10. Ashoka Kumar Thakur v The Court had to consider the The Court held the impugned
Union of India, (2008) 6 SCC validity of the Central Act and the Amendment to be
1 [LNIND 2008 SC 873] Educational Institutions intra vires the Constitution,
(Reservation in Admission) and within the bounds of
Act, 2006, and the equality laid down by
Constitution (Ninety-third) previous judgments. The
Amendment Act, 2005, which Court observed that both
had introduced Article 15 (5) Article 15 (4) and 15 (5)
in the Constitution. The operate in different areas.
petitioner challenged the Act Article 15 (5) did not exclude
and the Amendment inter alia 15 (4) of the Constitution, as
on the grounds of violation of they were both enabling
the principle of equality, and provisions, operating in their
that Articles 15 (4) and 15 (5) own field, and the validity of
were contradictory and could any legislation made on the
not stand together as both basis of Article 15 (4) or 15
Articles contained an (5) would have to be
exclusionary clause excluding examined on the basis of
the operation of the rest of provisions contained in such
Article 15. legislation or the special
provision that may be made
under Article 15 (4) or 15 (5).
The Court further observed:
Page 6 of 9
Conclusion
It is a well settled principle of

constitutional interpretation
that while interpreting the
provisions of Constitution,
effect shall be given to all the
provisions of the Constitution
and no provision shall be
interpreted in a manner as to
make any other provision in
the Constitution inoperative or
otiose. If the intention of the
Parliament was to exclude
Article 15 (4), they could have
very well deleted Article 15
(4) of the Constitution.
11. Anuj Garg v Hotel Association The Court was considering The Court employed the
of India, (2008) 3 SCC 1 the vires of Section 30 of the standard of strict scrutiny,
[LNIND 2007 SC 1420] Punjab Excise Act, 1914, hitherto restricted to
which prohibited employment American Courts, to test
of any man under the age of legislations suspect of
25 years or any woman in flagrantly violating the
any part of such premises in mandate of Article 15 . The
which liquor or intoxicating Court held that such a
drug is consumed by the restriction was clearly in
public violation of the letter of Article
15, and hence, the impugned
provision was struck down.
12. Salil Bali vUnion of India, The question before the Court The Court held that the
(2013) 7 SCC 705 [LNIND inter alia was the definition of definition of child occurring in
2013 SC 659] child under Article 15 (3) . Article 15, as well as the 2000
This question arose in the Act, was in consonance of
context of the application of biological and scientific data.
the Juvenile Justice Act, Hence, the definition
2000, to juveniles irrespective accorded in the 2000 Act, a
of the crime committed to legislation enacted through
them. This absolute the enabling provisions of
application of the Act became Article 15 (3), was intra vires
controversial in wake of the the Constitution. Hence, the
rape and consequential petitions were dismissed.
murder occurring in Delhi in
December 2012, in which one
of the accused was a
juvenile.
Article 19
Case
13. Romesh Thapar v State of Under Section 9 (1-A) of the The Court observed that
Madras, AIR 1950 SC 124 Madras Maintenance of where a law purported to
[LNIND 1950 SC 27] Public Order Act, 1949, the authorise the imposition of
petitioners publication, a restrictions on a fundamental
magazine called Cross- right using language wide
Roads, was banned from enough to cover restrictions
entry and publication in the both within and outside the
erstwhile Madras State. The limits of constitutionally
Page 7 of 9
Conclusion
petitioner challenged this ban permissible restrictions, it was

as being in violation of Article not possible to uphold it.
19 (1)(a), and not a Hence, as Article 19 (2) had
reasonable restriction under allowed the imposition of
Article 19 (2). restrictions on the freedom of
speech and expression only
in cases where danger to the
State was involved, an
enactment which was
capable of being applied to
cases where no such danger
could arise would have to be
held as unconstitutional .On
the basis of these
declared the impugned
provision to be ultra vires the
Constitution.
14 Hamdard Dawakhana v The Court had to consider a The Court held that
Union of India, [1960] 2 SCR challenge to the Drugs and advertisements related to
671 [LNIND 1959 SC 230] Magic Remedies commerce or trade were not
(Objectionable propagating of ideas, and
Advertisement) Act, 1954, on advertising of prohibited
the basis of the fact that the drugs or commodities of
object of the Act i.e. which the sale was not in the
prevention of self- medication interest of the general public
and self-treatment by could not be speech within
prohibiting instruments which the meaning of freedom of
may be used to advocate the speech. Thus, the right to
same, revealed it to be a advertise would not fall within
restriction outside the bounds Article 19 (1)(a) and hence,
of Article 19 (2). ought not to be tested on
Article 19 (2) . The Court then
proceeded to examine the
impugned Act under the wider
scanner of Article 19 (6), and
held it to be intra vires the
Constitution.
15. Municipal Corporation of Section 466 (l)(D)(b) of the The Court observed that in
Ahmedabad v Jan Bombay Provincial Municipal considering the validity of the
Mohammed, AIR 1986 SC Corporation Act, 1949, impugned law imposing
1205 [LNIND 1986 SC 135] conferred on the Municipal prohibition on the carrying on
Commissioner power to make a business or a profession,
standing orders, rules and Courts ought to attempt an
bye- laws. One of such evaluation of its direct and
powers extended to fixation of immediate impact upon the
days and hours during which fundamental rights of the
any market, slaughter house citizens affected, and the
or stockyard may be kept larger public interest sought
open for use. The appellant to be ensured in the light of
had fixed 7 days in total on the object sought to be
which slaughterhouses had to achieved, the necessity to
be shut. The respondent restrict the citizens freedom,
alleged an infringement of the inherent pernicious nature
Article 19 (1)(g) of the of the act prohibited or its
Constitution, since the capacity or tendency to be
closure of the slaughter harmful to the general public,
house adversely affected his and the possibility of
trade. achieving the object by
imposing a less drastic
Page 8 of 9
Conclusion
restraints. The Court held that

the expression interests of
general public used in Article
19 (6) included public health
as a concern. Apart from this
justification, the Court allowed
extraneous considerations
such as the fact that M.K.
Gandhi and Mahavir were
apostles of non-violence, and
hence, non-vegetarian food
ought to be abstained from on
their anniversaries. On the
basis of these reasons, the
Court held the prohibition to
be intra vires the Constitution.
16. Khoday Distilleries v State of The question before the Court The Court read the principle
Karnataka, (1995) 1 SCC 574 was whether restrictions of res extra commercium in
[LNIND 1994 SC 970] under Article 19 (6) could also Article 19 (6) and held that
take the character of absolute trade in noxious goods such
prohibition. as liquor could be regulated
by the state to any extent,
including a situation of
absolute prohibition.
17. C. Venkatachalam v The question before the Court The Court held that the
Ajitkumar C Shah, (2011) 9 was whether the restriction restriction imposed was
SCC 707 [LNIND 2011 SC imposed by Section 29 of the reasonable, and that it was
825] Advocates Act, 1961, i.e. only imposed to ensure that
advocates could practice law, proceedings in Consumer
was reasonable or not. This Forums are conducted in an
question arose when the orderly and professional
Consumer Forum denied the manner if authorized agents
right of appearing as are involved.
authorized agents to non-
advocates.
18. Jatya Pal Singh v Union of It was argued by the The Court interpreted Article
India, (2013) 6 SCC 452 petitioners the right to 19 (1)(a) strictly, and held that
[LNIND 2013 SC 478] communication was a facet of the right to communicate,
freedom of speech and while being recognized as a
expression under Article 19 facet of free speech and
(1)(a) of the Constitution of expression, could not be
India. By way of this arrogated to be included
argument, the petitioners within Article 19 (1)(a) and
sought to establish that VSNL hence, one could not say that
was performing a public VSNL was executing a public
function and was hence, function.
amenable to writ jurisdiction
of the Supreme Court under
Article 32.
Articles 29 and 30177
Case
19. State of Madras v The Court was considering a The Court held that the right
Champakam Dorairajan, AIR notification issued by the provided in Article 29 (2) was
Page 9 of 9
Conclusion
1951 SC 226 [LNIND 1951 erstwhile Madras state that not a community right, but an
SC 27] effected reservations for Non- individual right to not be
Brahmin Hindus, Muslims, discriminated against. Hence,
Christians etc. in educational the right was sacrosanct, and
institutions. This notification any appeal to the directive
had been challenged as principles, in the opinion of
being in violation of the the Court, was not mandated,
principle of non-discrimination as the right under Article 29
in admission to educational (2) trumped all considerations
institutions, enshrined in of Part IV. On the basis of
Article 29 (2). these observations, the Court
struck down the impugned
notification as ultra vires
Article 29 (2).
20. VR Sheerama Rao v The 16th Amendment to the The Court agreed with the
Telugudesam, AIR 1983 AP Constitution disallowed the political party, and held that
96 [LNIND 1982 AP 338] use of language as a means Article 29 (1) embodied the
to garner votes. On the basis Indian citizens right to
of this, it was argued that the conserve ones own language
formation of the Telugu by way of enlisting political
desam Party was ultra vires support for that cause.
the Constitution as it was a Political appeals made for
political party created on the conserving ones language
basis of a linguistic identity. either at the time of elections
The political party argued that or before them or after clearly
it had the right to form such fell within the protection of
parties on the basis of Article Article 29 (1). Hence, in the
29 of the Constitution. opinion of the Court, the 16th
Amendment could not be
understood as authorising the
forbidding of the exercise of a
right guaranteed in absolute
terms by Article 29 (1) to
conserve ones own language.
*For judicial decisions on article 21 see Part II supra and Part IV infra.
176 . For cases on Article 21 see Part IV (Precedents).
177 . For more cases on Articles 29 and 30 see part IV infra.
End of Document
Introduction
NS Bindra
Edition > Part III The Contextual Dimension of Interpretation > CHAPTER 14 General and
Special Statutes
Introduction
Statutes can be classified as General and Special. The distinction between General and Special Statutes is often a
difficult question to resolve. The classification has to be made by taking into account the context of the case and the
subject matter of the statute. For example, it may be argued, as he says, that the Contract Act which is applicable to
all is general in relation to the Labour Act which is limited to the relationship of the employer and the employee; and
in another sense the Labour Act which applies to all concerns will be general in relation to the labour employed in
essential services or providing essential supplies.2 Where a specific power is conferred without prejudice to the
generality of the general powers already specified, the particular power is only illustrative and does not in any way
restrict the general power.3
In Damji Valji Shaw v Life Insurance Corpn,4 the Court held that the provisions of Section 41 of the Life Insurance
Corporation Act 1956, a special Act, would override the provisions of Section 446 of the Companies Act 1956,
which is a general Act. Similarly, inUnion of India v India Fisheries Pvt Ltd,5Section 49E of the Income Tax Act,
1922, being a general provision has been held to give way to the special provision of ss 228 and 229 of the Indian
Companies Act 1913. In TM Dharmarajan v Union of India,6 the contention that Rule 48 of the Defence and Internal
Security of India Rules, 1971, being a general law, must give way to the Prevention and Publication of
Objectionable Matter Act, 1976, which was a special law, did not find favour with the court. The Court held that
when there was a special provision made by the legislature in the matter of a presumption to be drawn in particular
prosecutions, the drawing of presumption in those prosecutions would be regulated by the special provisions and
not by the general provision.7
The creation of a special statute for a particular constituency can cause questions of constitutionality to be raised. In
Salil Bali vUnion of India8 the petitioners moved the Supreme Court contending that for offences such as rape and
murder, juveniles should be tried under the general penal law and not under the special Juvenile Justice Law and
they asked that the protection granted under the special law to persons up to the age of 18 years should be
removed.
The petitioners were of the view that Parliament had exceeded its mandate when it adopted eighteen as the upper
limit for categorising a juvenile or a child, in accordance with the Beijing Rules, 1985, and the U.N. Convention,
1989, without taking into account the socio-cultural economic conditions and the legal system for administration of
criminal justice in India. The special law the petitioners contended needed to be in conformity with the Constitution
of India.
The Additional Solicitor General in response submitted that the Juvenile Justice (Care and Protection of Children)
Act, 2000, was enacted after years of deliberation and in conformity with international standards in order to secure
the best interests of the child with the primary object of social reintegration of child victims and children in conflict
with law, without resorting to conventional judicial proceedings which existed for adult criminals.
The Union further urged that Article 15 (3) of the Constitution empowered the State to make special provisions for
women and children, and the Juvenile Justice (Care and Protection of Children) Act, 2000, was an effort in that
direction and hence in conformity with the provisions of the Constitution. Juveniles, the State contended needed to
be treated differently from adults so as to give such children, who for some reason had gone astray, an opportunity
to realize their mistakes and to rehabilitate themselves and rebuild their lives.
Page 2 of 2
Introduction
The Court accepted the arguments of the State and noted that special legislation on juvenile crime needed to fix the
age of understanding at eighteen years because scientific data that indicated that the brain continues to develop
and the growth of a child continued till he reached at least the age of eighteen years and that it was at that age that
a person can be held fully responsible for his actions. The special law was restorative not retributive in nature and
aimed to re-ingrate children in conflict with the law into mainstream society. Such a special effort was legitimate
because specialist in child psychology and behaviour inform that the redemption and restoration of children in
mainstream society is feasible till the age of 18 years.
2 .Labour Commr v Mysore Iron and Steel Works Labour Assn AIR 1952 Mys 21, p 23: in this case looking at the
Preambles to the two Acts, it maybe said with more justification that in the particular context the Labour Act is a general
Act and the Essential Services Act is a special Act.
3 .Om Parkash v Union of India AIR 1971 SC 771, pp 773-74, per Jaganmohan Reddy J; DK Trivedi & Sons v State of
Gujarat AIR 1986 SC 1323 [LNIND 1986 SC 50], (1986) 1 SCJ 475, (1986) (Supp) SCC 20, (1986) 2 Cur CC 481,
1986 (3) Supreme 1, (1986) 2 UJ 301 (SC), (1986) 2 27 Guj LR 1250; quoting with approval Emperor v Sibnath Banerji
AIR 1970 SC 2097 [LNIND 1970 SC 367].
4 . AIR 1966 SC 135 [LNIND 1965 SC 120], (1965) 2 SCJ 371.
5 . AIR 1966 SC 35 [LNIND 1965 SC 460], (1965) 2 SCJ 248 [LNIND 1965 SC 460].
6 . 90 LW 145.
7 .State v Kapur Chand AIR 1958 Bom 311 [LNIND 1957 BOM 86], p 313.
8 . (2013) 7 SCC 705 For the relevance of this case within the rubric of fundamental rights see table 3.1 supra
End of Document
Special Provisions Followed by General Act
NS Bindra
Special Statutes
A general statute is presumed to have only general cases in view, and not particular cases which have otherwise
been already provided for by a special or local Act. A general statute may repeal a prior special Act, without
expressly naming it, when the provisions of both cannot stand together, and it is clear the legislature intended to
effectuate such repeal. A general law does not abrogate an earlier special one by mere implication. Where there
are general words in a later Act which are capable of reasonable and sensible application without extending them to
subjects specially dealt with by the earlier legislation, the earlier and special legislation cannot be held to have been
indirectly repealed, altered or derogated from merely by force of such general words, without indication of a
particular intention to do so.
Maxwell has stated:9
Having already given its attention to the particular subject and provided for it, the legislature is reasonably
presumed not to intend to alter that special provision by a subsequent general enactment unless that intention
manifested in explicit language, or there be something which shows that the attention of the legislature had been
turned to the special Act and that the general one was intended to embrace the special cases provided for by the
previous one, or there be something in the nature of the general one making it unlikely that an exception was
intended as regards the special Act. In the absence of these conditions, the general statute is read as silently
excluding from its operation the cases which have been provided for by the special one.
In Municipal Council v TJ Joseph,10 the appellant, under Sections 286 and 287 of the Municipalities Act, prohibited
the use of any other public place or public street within the Municipal limits as a bus stand or a halting place. The
respondents who were using that bus stand, were served with notices demanding the payment of the charges due
from them under Section 286 . The validity of the action was challenged by the respondent. Section 286 (1) read as
follows: The Municipal Council may construct or provide public landing places, halting places and cart-stands and
may levy fees for the use of the same. It was argued that the Municipalities Act was impliedly repealed by the
Travancore-Cochin Motor Vehicles Act, 1914. Section 72 of the 1914 Act read as follows:
Government or any authority...may...determine places at which motor vehicles may stand either indefinitely or for a
specified period of time, and may determine the places at which public service vehicles may stop for a longer time
than is necessary for the taking tip and setting down of passengers.
The appellant contended that the Municipalities Act was a special Act whereas the Motor Vehicles Act was a
general Act, by virtue of which, an argument that the general law had impliedly repealed the special law could not
be sustained.The Supreme Court agreed with the appellants partially, and held that a case of implied repeal was
not made out, and the provisions ought to be construed harmoniously. The Court observed:
Of course, there is no rule of law to prevent repeal of a special by a later general statute and, therefore, where the
provisions of the special statute are wholly repugnant to the general statute, it would be possible to infer that the
special statute was repealed by the general enactment. A general statute applies to all persons and localities within
its jurisdiction and scope as distinguished from a special one which in its operation is confined to a particular locality
and, therefore, where it is doubtful whether the special statute was intended to be repealed by the general statute
the court should try to give effect to both the enactments as far as possible.
Page 2 of 2
9 . Maxwell, ninth edn, p 184; followed in Siba Singh v Sunder Singh 3 Lab LJ 522, 526, AIR 1921 Lah 280; Ghulam
Mahommad v Rajeshwar AIR 1941 Lah 364; Govind Ram v Kashi Nath (1936) ILR 58 All 505, AIR 1936 All 239;
Corporation of Madras v Madras Electric Tramways Ltd AIR 1931 Mad 152 [LNIND 1930 MAD 155], p 156; Montreal
Corpn Montreal Industrial Land Co Ltd AIR 1932 PC 252, p 254; quoting Barker v Edgar [1898] AC 749 ;
Somasundara v MP Co-op Society AIR 1950 Mad 711 [LNIND 1950 MAD 50]: general law would not prevail over
specific enactment.
10 . AIR 1963 SC 1561 [LNIND 1963 SC 43].
End of Document
General Act Followed by Special Act
NS Bindra
Special Statutes
In Corporation of Madras v Electric Tramways Ltd,11 the Court was considering the apparent conflict between the
Madras City Municipality Act (general) and the Tramways Act (special). It was argued that the Electric Tramways
Company was not subject to the Municipal Act, but was governed by the Tramways Act. The Court finally construed
the Acts harmoniously, and held that the Company was governed by the provisions of the Municipality Act. On the
construction of special Acts that come after general Acts, Reilly J. incisively observed:
If the legislature makes a special Act dealing with a particular case and later makes a general Act, which by its
terms would include the subject of the special Act and is in conflict with the special Act, nevertheless, unless it is
clear that in making the general Act the legislature has had the special Act in its mind and has intended to abrogate
it, the provisions of the general Act do not override the special Act. If the special Act is made after the general Act,
the position is even simpler. Having made the general Act, if the legislature afterwards makes a special Act in
conflict with it, we must assume that the legislature had in mind its own general Act when it made the special Act
and made the special Act, which is in conflict with the general Act as an exception to the general Act.
In Hakam Khudayar v Emperor,12 the Court had to decide whether there was a conflict between Section 27 of the
Evidence Act, 1872, and Section 162 of Criminal Procedure Code, 1898, as amended in 1923. Din Mahommad J.
held:
I am, therefore, of opinion that the Evidence Act is not a special law, but a general Act which...applies to the whole
community and is unlimited both in its area and as regards individuals in its effect... that being an earlier Act, it has
been abrogated to that particular extent with which we are at present concerned by the enactment of Section 162 at
a later period. Consequently, statements which were, prior, to the enactment of Section 162, admissible in evidence
in the circumstances specified in Section 27, cannot now be used as evidence for any purpose whatever.
In Gopalji v Shree Chand,13 the Court was considering whether children, who were being taken care of by their
maternal relations after the death of their mother, could be sent back to their father under Section 491 of the Code
of Criminal Procedure, 1898 (no corresponding provision in the Code of 1973).
The respondent argued that the application was improper, as Section 491 was a general provision that dealt with
applications of the nature of habeas corpus, and that a proper application would have been under the Guardians
and Wards Act, 1890. The Court relied on previous judgments to hold as follows:
That the power under Section 491, Criminal P. C. is a general power of the nature of a habeas corpus. The power
under the Guardians and Wards Act is a power under a Special Act dealing with a special subject, that is, the
subject of minors... where there was a special Act dealing with a special subject, resort should be had to that Act
instead of to a general provision which was exercisable or which was available under extraordinary circumstances
only.
In Harihara Singh v Harihar Patnaik,14 the Court had to consider whether the definitions of landlord and tenant
given in the Orissa Tenants Protection Act, 1948, could be extended to lands belonging to rulers who were not
landlords at any point in time, so as to afford the same protection to tenants on those lands. It was argued that for
lands of rulers, the Orissa Merged States (Law) Act, 1950, had been enacted. As it was a special enactment which
Page 2 of 2
expressly made provisions in respect of the private lands of the ruler and creates a machinery for the decision of
disputes between him and his tenants in respect of Khamar lands, reliance ought to be placed on that statute
instead of the 1948 Act. The Court agreed with this argument, and held:
... where there are provisions in a special Act which are inconsistent with a prior general Act, the provisions of the
general Act must yield place to those of later special enactment. The Orissa Merged States (Laws) Act of 1950 is
admittedly a special enactment which declares the laws that are to be in force in the merged areas, and introduces
modifications and amendments to the existing law. The provisions of the Acts extended to the State areas must be
read as subject to those made in the special Act. The Legislature could not have intended at the time the Orissa
Tenants Protection Act was passed that it should apply to the tenants of State areas. The definitions of “landlord”
and “tenant” given in the Act should, therefore, be extended only to those classes of persons who answer the
description of landlord and tenant in those areas, and not to a Ruler who was not a landlord at any time.
11 . AIR 1931 Mad 152 [LNIND 1930 MAD 155], p 156, (1931) ILR 54 Mad 364; Antulal v R Pal Singh AIR 1958 MP 7
[LNIND 1957 MP 4], p 8.
12 . AIR 1940 Lah 129, p 152, (1940) ILR Lah 242; the principle is that a general Act is to be construed as not repealing a
particular one, that is one, directed towards a special object: Laxmi Narain v Panchanan Khan AIR 1949 Pat 78 per
Ramaswamy J; it is patent that O 21, r 55, is framed [in a] wider language; it does not restrict the class of persons who
may make the deposit, and to that extent is not inconsistent with s 224, Orissa Tenancy Act 1913: Ramanugrah Jha v
State of Bihar AIR 1966 Pat 97.
13 . AIR 1955 All 28 [LNIND 1954 ALL 118].
14 . AIR 1950 Ori 101.
End of Document
Presumption
NS Bindra
Special Statutes
Presumption
Where a general intention is expressed, and also a particular intention which is incompatible with the general one,
the particular intention is considered to be an exception to the general one. Even when the later or later part of the
enactment is in the negative, it is sometimes reconcilable with the earlier one by so treating it. If, for instance, an
Act in one section authorised a corporation to sell a particular piece of land and in another prohibited it from selling
any land, the first section would be treated, not as repealed by the sweeping terms of the other, but as being an
exception to it.15 When the legislature has given its attention to a separate subject, and made provision for it, the
presumption is that the subsequent general enactment is not intended to interfere with the special provision unless
it manifests that intention very clearly.16
In Siba Singh v Sunder Singh,17 the question for decision was whether the suit was governed by Article 162 of the
Punjab Loans Limitation Act, 1904, or by Article 75 of the Indian Limitation Act, 1908. Shadi Lal CJ. held that the
1904 Act ought to apply, and observed:
In other words we have on the one side Article 75 of the Indian Limitation Act which in express terms governs all
suits based on bonds payable by installments and containing a default clause, [and] on the other hand, there is
Article 162 of the Punjab Act which is a provision applicable to all suits based on bonds payable by installments by
containing no such clause. Which of these two provisions is to prevail? Now the rule of interpretation of statutes is
that a general statute must yield to a special Act applicable to a particular locality. A general statute is presumed to
have only general cases in view, and not particular cases which have already been provided for by special or local
Act.
In Nai Bahu v Ram Narayan,18 the Court was considering whether a decree for eviction of a tenant would be
passed under Order XXIII, Rule 3 of the Code of Civil Procedure, 1908, or under the Madhya Pradesh
Accommodation Control Act, 1955. The Court held that the latter Act, having the character of special law, would
prevail over the general law laid down by the CPC. The Court observed:
It is well-settled that where the Rent Control and Restrictions Acts are in operation, a landlord cannot obtain eviction
of the tenant unless he can satisfy the requirements of the provisions in those Acts. The general law of landlord and
tenant to that extent will give way to the special Act in that behalf.
In Padam Chand Jain v Chief Controlling Revenue Authority,19 the question before the Court was whether the
definition of mortgage deed under the Transfer of Property Act, 1882, or the Indian Stamp Act, 1899, would be
considered when it came to ascertainment of stamp duty on the document. The Court held that where a statute
created a special liability (like the Stamp Act), the special definition of any term given in such a statute ought to
supersede and prevail over the ordinary connotation of that term in which it was understood in common law (like the
Transfer of Property Act).
Penal Provisions
It is ordinarily desirable that when an act or omission is made penal by two Acts, one general and other special, the
sentence should be passed under the special Act.
Page 2 of 2
Presumption
In Omprakash v State,20 the question before the Court was whether Section 409 of the Indian Penal Code, 1860,
was being repealed by the Prevention of Corruption Act, 1947. The Court observed that under Section 26 of the
General Clauses Act, 1897, if an Act constituted an offence under two or more separate enactments, the offender
was liable to be prosecuted and punished under either or any of these enactments, but would not be liable to be
punished twice for the same offence. Hence, it was implicit in Section 26 that two separate enactments could exist
side by side, although both made the same act punishable as an offence. On the basis of these observations, the
Court held that if the legislature intended to repeal Section 409 by the enactment of the Prevention of Corruption
Act, 1947, it would have expressly said so in the special Act itself. In the opinion of the Court, there must appear
some strong reason to suggest that the previous enactment which had not been expressly repealed by the
subsequent Act stood repealed by implication. The mere fact that under the special Act, the accused had been
given certain privileges not available to him under the general law, would hardly be a good reason for inferring
repeal by implication.
Provisions relating to property
In Ramanuj Bhan v Manraj Kuer,21 it was argued that a the widow had only a life interest under the Oudh Estates
Act, 1869, and that she could not make any transfer or lease which would endure beyond her lifetime. The
argument was based on Section 22 of the 1869 Act, under which a widow was entitled to succeed to a settled
estate and hold it according to the provisions of the Act. However, under Sections 16 and 17 of the Oudh Settled
Estates Act, 1917, the person entitled to and in possession of a settled estate had limited powers of transfer for
public purposes and for granting agricultural leases. Hence, the entitlement under the 1869 Act was qualified to the
extent of the 1917 Act.The Oudh Chief court agreed with this contention, and observed:
It appears to us that Sections 16 and 17 apply in terms to any person who is, for the time being, entitled to and in
possession of a settled estate and we have already shown that such a person may be a widow who succeeds to the
estate on an intestacy. The Act of 1917 is a special Act relating to a special class of estate in Oudh and if there is
any conflict between the powers given to the holder of a settled estate under the Act of 1917 and the power
conferred upon a widow who succeeds under Section 22 of the Act of 1869 then the provisions of the special Act
must override the provisions of the Act of 1869.
15 .Anand Reddi v State of Andhra Pradesh AIR 1959 AP 144 [LNIND 1958 AP 114]; Maxwell, Interpretation of Statutes,
eleventh edn, pp 168-69: principle being enunciated in De Winton v Brecon Corpn (1859) 28 LJ Ch 598, p 600; Taylor v
Oldham Corpn (1876) 4 Ch D 395; Churuchill v Crease (1828) 130 ER 1028; Nagpur KK Samaj v Corpn of City of
Nagpur AIR 1959 Bom 112 [LNIND 1958 BOM 147].
16 .Barker v Edgar [1898] AC 748.
17 . AIR 1921 Lah 280, p 282; Thammayya v Rajah Tyadapusapati AIR 1930 Mad 963 [LNIND 1930 MAD 56]; Secretary
of State v Hindustan Co-op Insurance Society Ltd AIR 1931 PC 149, p 153.
18 . AIR 1978 SC 22 [LNIND 1977 SC 296].
19 . AIR 1970 All 644, per Mukherjee J.
20 . AIR 1955 All 275 [LNIND 1954 ALL 236]; Amarendra Nath Roy v State AIR 1955 Cal 236 [LNIND 1955 CAL 3];
(1952) ILR Punj 96 contra.
21 . AIR 1955 Oudh 198, p 206, (1935) ILR 10 Luck 606.
End of Document
Ordinarily no Repeal by Implication
NS Bindra
Special Statutes
It is a well recognised rule of interpretation that where there is a general law and a special law relating to a
particular class of objects, the general law should be so applied as not to affect the special provisions unless an
intention to abrogate the special law can be spelt out from the provisions in the general law. The rationale behind
the presumption against repeal by implication is that the legislature has complete knowledge of the existing laws on
the subject matter while enacting a law, and therefore, when it does not provide a repealing provision, the intention
is clear not to repeal the existing legislation. It is also based on the theory that the legislature did not intend to
create any confusion by retaining conflicting provisions. Therefore, when the court applies the presumption, it does
no more than give effect to the intention of the legislature by examining the scope and the object of the two
enactments and by comparing their provisions. The matter in each case is one of construction and comparison of
the two statutes. When a new Act contains a repealing section mentioning the Acts which it expressly repeals, the
presumption against implied repeal of other laws is further strengthened on the principle of expressio unius
(personae vel rei) est exclusio alterius. The presumption is, however, rebutted and repeal by necessary implications
inferred when the provisions of the later Act are so inconsistent with or repugnant to the provisions of the earlier Act
that the two cannot stand together. To determine whether a later statute repeals by implication an earlier, it is
necessary to scrutinise the terms and consider the true meaning and effect of the earlier Act. If the two statutes can
be read together and some application can be made of the words in the earlier Act, a repeal will not be inferred, and
instead, the two statutes will be construed harmoniously.22
In Ram Nath v Hazari Lal,23 the question before the Court was whether the Transfer of Property Act, 1882, was
impliedly repealed to the extent of its provisions on leases by the Central Provinces Tenancy Act, 1898. The Court
observed that a general statute could be treated as impliedly repealed by a local or special statute, because
ordinarily the general law of the country was not altered by special legislation made without particular reference to
it. Hence, the Court held that the Transfer of Property Act enacted the general law of transfer for India, whereas the
Central Provinces Tenancy Act was nothing more than a subsequent local legislation made for a particular purpose
and with reference to a particular locality.
In Banwari Lal Radha Mohan v Punjab State Co-op Supply and Marketing Federation Ltd,24 the Delhi High Court
held that that the Delhi High Court Act was a general law and the Arbitration Act, 1940, a special law. Hence, which
act came earlier and which came later was held to be an irrelevant consideration. The Court observed:
The principle will have to be kept in view whether the right created by law, that is, Section 10 of the Delhi High Court
Act, being later in point of time can confer a right of appeal without repealing Section 89 of the Arbitration Act which
is earlier in point of time. The doctrine of repeal by implication is not available. Both Section 10 of the Delhi High
Court Act and Section 39 of the Arbitration Act have to be construed harmoniously. On this principle of harmonious
construction it has been held that an order under Section 5 of the Delhi High Court Act being a judgment within the
meaning of Section 10 of that Act, appeal against it is specifically barred, which was otherwise impermissible on a
mere reading of Section 39 of the Arbitration Act.
22 .Kishorebhai Khamanchand Goyal v State of Gujarat (2003) 12 SCC 274 [LNIND 2003 SC 928].The same principle was
reiterated in Maya Mathew vs State of Kerala (2010) 4 SCC 498 [LNIND 2010 SC 190].
Page 2 of 2
23 . AIR 1929 Nag 246, p 249; Wiltshire County Valuation Committee v Marlborough and Ramsbury Rating Authority
[1948] 1 All ER 694: exemption from poor rate no abrogated by later general Act, unless it was addressed in plain
language to the former.
24 . AIR 1983 Del 402 [LNIND 1983 DEL 150].
End of Document
Repeal by Necessary Implication 25
NS Bindra
Special Statutes
Repeal by Necessary Implication 25
It is no doubt true that it is one of the canons of the interpretation of statutes that repeal by implication of an earlier
enactment is not to be favoured, especially when the earlier enactment dealt with a particular subject. But if the later
statute is so worded that the repeal flows from it as a necessary consequence, it is the duty of the court to give
effect to it. If a provision of law contains something which is intrinsically germane to the determination of the point at
issue between the parties, it must be construed as a rule of evidence (adjective law). On the other hand, if it is not
in itself relevant for the purpose of determining the point in controversy between the parties but by itself it leads to a
positive conclusion or makes a particular kind of inference irresistible, it acquires the shape of substantive law.
25 . For a more detailed consideration of this dimension see part II chapter 9 supra.
End of Document
Conflict between Special and General Statutes
NS Bindra
Special Statutes
In case of conflict between the two statutesone special and the other generalthe tests to determine which would
prevail have been elucidated by the Supreme Court in Ajoy Kumar v Union of India:26
(i) The legislature has [the] right to alter a law already promulgated through subsequent legislation.
(ii) A special law may be altered, abrogated, or repealed by a later general law by an express provision.
(iii) A later general law will override a prior special law if the two are so repugnant to each other that they
cannot co-exist even though no express provision in that behalf is found in the general law.
(iv) It is only in the absence of a provision to the contrary and of a clear inconsistency that a special law will
remain wholly unaffected by a later law.27
The question sometimes arises, when there is a conflict between two special Acts, each of which may be described
as special in some particular sense, as to how far the later Act should prevail over the earlier Act. In such cases, it
would seem that the rule is that the court should lean against repeal of the earlier Act by implication and unless it is
absolutely clear that the operation of the earlier Act has to be curtailed by the later Act, the previous Act should be
held to continue in force, even though the later Act may be regarded as special in some other sense. Specialness in
respect of locality is given greater importance rather than specialness in respect of subject matter, otherwise it
would be impossible to compare the degree of specialness.28 In Maruti Udyog Ltd v Ram Lal,29 the Supreme
Court observed that while pronouncing on the competing reach of overriding clauses in special statutes, it is well-
settled that when both statutes containing non-obstante clauses are special statutes, an endeavour should be made
to give effect to both of them. In case of conflict, the later in time shall prevail. In Kannu Neelakantan v
Ramakrishna Pillai,30 the Court observed that when a statute provides for the forum for adjudication of certain
matters and provisions are made regarding the details thereof, a subsequent statute cannot, in the absence of
inconsistency or express terms in that behalf, operate to abrogate any of the provisions of the earlier Act. It is an
equally well established principle of construction that exclusion of civil courts jurisdiction will not be taken for
granted in the absence of express words in or necessary intendment of the statutory provision to that effect.
Exclusion of civil courts jurisdiction will be, however, assumed where a statute prescribes a special forum for
adjudicating particular classes of causes of action. This is on the principle that the special excludes the general.31
The rule is, therefore, clear that a special Act does not derogate from another special Act without express words of
abrogation.
In Thammayya v Rajah Tyadapusapati,32 the Court was considering whether the limitation period for filing an
appeal against a decree would be under Section 191 of the Madras Estates Land Act (30 days) or under Rule 56 of
the Agency Rules, 1860, for districts (6 weeks). In this case, the appellant had filed an appeal within 6 weeks but
after 30 days. The Court held that the applicable period of limitation would be that prescribed under Rule 56 i.e. 6
weeks. The Court observed:
The general rule is, the later statute repeals the earlier Statute, if both are equally general. But this rule is subject to
an exception that, if the later Act is a general Act, but the earlier Act is a special Act, the earlier Act is generally not
repealed by the later Act... the question then arises, when there is a conflict between two such special Acts each of
which may be described as special in some particular sense, how far the later Act should prevail over the earlier
Act. In such cases, it would seem that the rule is that the Court should lean against repeal of the earlier Act by
implication and, unless it is absolutely clear that the operation of the first Act has to be curtailed by the later Act, the
Page 2 of 2
previous Act should be held to continue in force, even though the later Act may be regarded as special in some
other sense.
In Union of India v Satyabati,33 the question before the Court was whether in case of an accident that led to an
injury to the workman, the Workmens Compensation Act, 1923, or the Fatal Accidents Act, 1855, would apply. It
was argued that since the 1923 Act dealt specifically with compensation to be paid to workmen in the event of
injury, the 1855 Act was impliedly repealed from application in such cases. The Court repelled this argument, and
held that the special provisions made under the 1923 Act would not abrogate the rights accrued under the 1855 Act.
Hence, a workman making a claim under the special Act also had an alternative remedy in the civil court under the
Fatal Accidents Act.
For more illustrations on how Courts address the conflict between general and special statutes see Table 3.2
26 . (1984) 3 SCC 127 [LNIND 1984 SC 88].

27 .Prahladhbai Rajaram Mehta v Pophatbhai Haribhai Patel (1995) 2 Guj LR 1752, (1995) 2 Guj LH 473, (1996) 1 Guj CR
564.
28 .Thammayya v Rajah Tyadapusapati (1931) ILR 54 Mad 92, AIR 1930 Mad 963 [LNIND 1930 MAD 56], pp 968-69.
29 . (2005) 2 SCC 638 [LNIND 2005 SC 81].
30 . AIR 1955 Tr&Coch 260.
31 .VCK Bus Service v Sethna AIR 1965 Mad 149 [LNIND 1964 MAD 271], p 151, per Veeraswami J.
32 . AIR 1930 Mad 963 [LNIND 1930 MAD 56], 968-69, (1931) ILR 54 Mad 92; Gola v Emperor AIR 1929 Nag 17; King-
Emperor v Indu Bhusan AIR 1926 Cal 819, (1923) ILR 53 Cal 524.
33 . AIR 1966 Pat 130.
End of Document
Special and General Provisions in Same Statute
NS Bindra
Special Statutes
Where there is in the same statute a specific provision and also a general provision that, in its most comprehensive
sense, would include matters embraced in the former, the particular provision must be operative and the general
provision must be taken to affect only such cases within its general language as are not within the provisions of the
particular provision.34 When there are two sections in a statute, one dealing specially with any particular subject
which is also included in some of the provisions of another section, which is couched in general terms, the
provisions of this latter section should not affect the provisions of the former section unless there is a specific
provision to the contrary in the statute itself.35 Where there are two articles (limitation) which may possibly govern
a case, one more general and the other more particular and specific, the latter article ought to be adopted.36
In Subodhchandra v Income-tax and EPT Commr,37 the Court had to consider whether an expenditure in the
nature of bonus or commission paid to an employee for services rendered, would be covered by Section 10 (2)(x) of
the Income Tax Act, 1922, or under Section 10 (2)(xv). The former provision dealt with bonuses paid to an
employee out of profits, whereas the latter dealt with expenditure solely for the purposes of the business. The Court
held that the validity of the expenditure in this case could only be determined by the test laid down in Section 10
(2)(x) and not the test laid down in Section 10 (2)(xv). The Court observed that it was an accepted canon of
construction that when a statute dealt with a special case, it was not permissible to contend that the special case
would also fall within the general provision in the statute.
In Public Prosecutor v K Velayudhan,38 it was held that the Code of Criminal Procedure, 1973, had not completely
occupied the field of criminal procedure in the matter of search warrants, and when there was a special provision
like Section 29 in the Madras Prohibition Act, which governed searches without warrant, the special provision ought
to be applied instead of the general provision.
In State of West Bengal v Mohammad Safi,39 the question before the Court was whether a person, who had been
acquitted by a Special Court for want of jurisdiction, and later tried and convicted after a government notification
vesting jurisdiction in the special Court, has been tried twice within the meaning of Section 403 of the Code of
Criminal Procedure, 1898. In his appeal to this Court, the appellant contended that since he was tried and acquitted
upon the same facts by the Special Judge, his trial over again for the same offence was barred by Section 403 .
The Court repelled this argument, and held that the general rule under Section 403, was qualified by the provisions
under Section 411 of the Code, which permitted appeal only for a fine of more than two hundred Rupees. Hence,
the limitations placed on the right to appeal would be considered as special law, that would limit the general law of
Section 403.
34 .Mulji Tribhovan Sevak v Dakore Municipality AIR 1922 Bom 247, (1922) ILR 46 Bom 663; Harnam Singh v State of
Punjab AIR 1960 Punj 186, p 191; PV Naik v State of Maharashtra AIR 1967 Bom 482 [LNIND 1966 BOM 40], p 491,
per KK Desai J; State v Gulab Singh AIR 1965 All 300 [LNIND 1964 ALL 76], per Uniyal J; Uma Shankar v Bihar State
Co-op Marketing Union Ltd AIR 1985 Pat 46.
35 .Baldeo Singh v State AIR 1951 MB 149; Vithalji Madhavaji v Income-tax Commr AIR 1948 Mad 353; Ko Maung Gyi v
Daw Tok (1928) ILR 6 Rang 474, AIR 1928 Rang 249; Bhana Mekan v Emperor AIR 1936 Bom 256; Union Insurance
Page 2 of 2
Society v Mahommad Karam Ilahi Khan AIR 1934 Pesh 37; Ram Nath v King-Emperor AIR 1925 All 230, ILR 47 All
268; Darshan Hosiery Works v Union of India (1981) 22 Guj LR 533.
36 .Magundappa v Javali AIR 1965 Mys 237, p 238, per Tukol J; Manichvasagam v Muthuveeraswami AIR 1963 Mad 362
[LNIND 1963 MAD 16], p 364, per Ram Chandra CJ: court would choose that article which keeps alive the remedy;
Bodh Raj v Dy Commr AIR 1962 J&K 62, p 66, per Wazir J.
37 . AIR 1953 Bom 234.
38 .(1955) Mad LJ 70; Brij Bhukan v SDO, Siwan ILR 33 Pat 690, AIR 1955 Pat 1: the Bihar Land Encroachment Act is a
special or local law and it cannot be said that there is any specific provision in Cr PC which can affect this special law.
39 . AIR 1966 SC 69 [LNIND 1965 SC 102]
End of Document
Conflict to be Reconciled
NS Bindra
Special Statutes
It is also well-settled that different provisions of the same statute, which are apparently inconsistent with one
another, should be so construed as to give effect to all the provisions, so as to avoid a repugnancy.40 When there
are two provisions having the force of law and regulating the same subject, they should, if possible, be so construed
as to be consistent with each other.41 Where there is a particular enactment and a general enactment in the same
statute and the latter, taken in its most comprehensive sense, could overrule the former, the particular enactment
must be operative and the general enactment must be taken to affect only the other parts of the statute to which it
may properly apply. Where there are two conflicting provisions of the legislature and the question is which one must
be taken to govern the case, it is the duty of the court to see the terms of which provision are more appropriate to
the circumstances of the case in order to decide the provision that governs the rights of the parties. Hence, where
the rights of the parties have been expressly laid down in an Act, specifically appropriate to classes of transactions
exactly similar to those which are the subject of inquiry, it must be clearly made out that a general Act which is
applicable not to the particular class of transaction or persons before the court but to a body of persons amongst
whom the parties maybe brought, governs the case and it must be very clearly shown that such general Act is
intended to override the special Act.42 Where the legislature passes a later Act without reference to an earlier Act
and that earlier Act is one which has been in force for a long time and is, therefore, well-known, it seems
reasonable and proper that one should try to construe the two Acts consistently it is possible to do so.43 The
provisions, contained in a statutory enactment or in the rules and regulations framed there under, have to be
construed so as to be in harmony with each other and where, under a specific section or rule, a particular subject
has received special treatment, such provision will exclude the applicability of any general provision.44 Hence, in
Krishna v Govardhnaniah,45 the Court held that when it has to ascertain what a particular word used in a statute
means and the scope of its content, it would be legitimate to examine the sense in which it is used in other
enactments. Thus in the construction of the word Court in the Criminal Procedure Code, 1898, it would be legitimate
to look into the Evidence Act, 1872, and try to find out in what sense the word is used in that Act. And, if the context
and circumstances justify it, one may assume that the word is used in the same sense, but not otherwise.
In Sarat Chandra Mohanti (Dr) v State of Orissa,46 the Court held that Section 43 of the Orissa Homeopathic Act,
1956, which was a special provision dealing with reservation of certain appointments to registered homeopathic
practitioners, had to be harmoniously construed with Section 29 (b) of that Act, and so construed, the position was
that while in regard to institutions covered by Section 29 (b), institutional qualifications of registered homeopathic
practitioner was not necessary, such a qualification was a condition precedent for the field limited by Section 43 .
Hence, the qualification was held to be required under the special provision.
In Re: Jivandas Savchand,47 the Court was considering whether an offence of criminal breach of trust could be
tried where the property was misappropriated, or where the property was received. Section 179 of the Code of
Criminal Procedure, 1898, only permitted the trial to be conducted by the Court in whose local limits the property
was misappropriated. However, Section 181 stated that if the offence was one of criminal breach of trust,
jurisdiction would be conferred on Courts within whose local limits the property was misappropriated, or the property
was received. The Court held that both Courts would have jurisdiction, and observed:
Where you find a section dealing with a particular form of crime, it will require strong words to show that any section
of more general application is intended to deal also with that particular crime.
Page 2 of 2
40 .Kameshwar Singh v Province of Bihar AIR 1950 Pat 392, p 418; Amar Chand Roy v Prasanna Dasi AIR 1921 Cal 603:
effort must be made to reconcile them; Iyotirindra Narayan v Purna Chandra AIR 1950 Assam 161-62: to be reconciled
with each other so far as possible by reading one as qualification to the other.
41 . Re B An advocate of Benares AIR 1933 All 241, pp 143-44, (1933) ILR 55 All 432; Syed Abdul Azeezkhan v Divisional
Accountant S Rly (1966) 2 Mad LJ 5, (1966) 79 Mad LW 269: as to the relative scope of special and general provisions
in the same statute; Subash Chander v State of Haryana AIR 1992 P&H 20.
42 .Karachi Municipality v Karachi Electric Supply Corpn Ltd AIR 1926 Sind 115: the general law should be given effect to
if there is no special law to the contrary; Municipal Board, Lucknow v Deb AIR 1932 Oudh 193, (1933) ILR 8 Luck 1.
43 .King-Emperor v Raja Probhat Chandra AIR 1927 Cal 432, (1927) ILR 54 Cal 863.
44 .Maharashtra SBOS & HIS Education v Paritosh AIR 1984 SC 1543 [LNIND 1984 SC 173], (1984) 4 SCC 27 [LNIND
1984 SC 173], (1984) 86 Bom LR 428 [LNIND 1984 SC 173].
45 . AIR 1954 Mad 822 [LNIND 1954 MAD 33].
46 .(1981) 51 Cut LT 371.
47 . AIR 1930 Bom 490, p 492, (1931) ILR 55 Bom 59.
End of Document
Strict Construction
NS Bindra
Special Statutes
Strict Construction
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 objects of the Act, and as not altering the law beyond.48 Where an Act
vests a special jurisdiction in an authority divesting the parties of certain rights which they could exercise under the
general law, the provisions of such an Act must be strictly construed, and if there exists no provisions in the Act for
the exercise of certain jurisdiction, it shall have to be held that such jurisdiction cannot be exercised by that
authority.49 The maxim leges posteriores priores contrarias abrogant (that is, the provisions of a subsequent law
always take precedence, and override the provisions of a previous law) is subject to the maxim generalia
specialibus non derogant.50
In Mahalakshmi Metal Industries v K Suseela Devi,51 the Court had to consider whether the process of eviction
under Section 10 of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, could have restricted the
application of the process specified in the Transfer of Property Act, 1882. The 1960 Act allowed for a special
process of eviction which was more tedious to the landlord. The Court held that the 1960 Act could not be
considered to be restricting the application of the general right under the 1882 Act. The Court observed:
It should also be remembered that this is a special piece of legislation causing inroad into the general principles of
law as enunciated by the Transfer of Property Act. A special legislation like this cannot be interpreted in a wide way
so as to further infringe the general right available under the general law. If this background is kept in mind, most of
the problems would not arise.
48 .Ram Nath v Hazari Lal AIR 1929 Nag 246, p 249.
49 .Shamsher Bahadur v State of Uttar Pradesh AIR 1964 All 395 [LNIND 1962 ALL 58], p 405, per DS Mathur J.
50 .Parasram Gidandas v Tarachand Amardinomal AIR 1936 Sind 209; see also Nagendra Chandra v Probhat Chandra
AIR 1942 Cal 607, p 609.
51 .(1982) 2 Mad LJ 333.
End of Document
Conclusion
NS Bindra
Special Statutes
Conclusion
The chapter demonstrates that the categorization of general and special is far from fixed and depending upon the
point of dispute the same statute can be categorized as general or special. Consequently, the operation of the rule
whereby the special overrides the general keeps altering. The chapter also shows that the sequence in which the
statutes are enacted is as important as the nature of the statute. Thus a special statute being enacted after a
general statute is more easily perceived as an exception to the rule. In Anusaya Lal vs State of Uttarakhand52 and
others the Government of Uttarakhand promulgated the Uttarakhand Horticulture and Food Processing Subordinate
(Group-C) Service Rules, 2009 modified the Uttarakhand Government Servants (Criterion of Recruitment by
Promotion) Rules, 2004 in the manner in which promotions would occur from Grade IV to Grade III. Whilst earlier
the promotion was on the basis of seniority, the new rules required aspirants to pass a written examination. The
Uttarakhand High Court held that ordinarily the later special rules would override the earlier general rules; this
consequence did not occur in the particular because Uttar Pradesh State Reorganisation Act, 2000 provided that in
case any service conditions being changed to the detriment of the employees, the permission of the central
government would be obtained. Since such permission was not obtained the special rules could not become
operational and hence the earlier general law continued to occupy the field. This case thus demonstrated that a
special law obtains its special status only after it comes into being after fulfilling the special procedure by which it
has to be enacted.
However since both the general and the special are expressions of legislative will, the primary effort of Courts is to
try and save both kinds of enactments by bounding their area of operation instead of ousting any one from the
legislative arena. The principle of implied repeal comes into play only when absolutely necessary.
Table 3.2 Conflict between General and Special Statutes
S. No Name and General Law Special Law Conflict between Decision of the
Citation of the the provisions Court
Case
1. A.H. Desai v State Section 177 - Section 182 - The question The Court held
of Mysore Code of Criminal Code of Criminal before the Court that Section 177
AIR1956 Mys 46 Procedure, 1898 Procedure, 1898 was whether the was fully qualified
general jurisdiction by Section 182,
conferred by when a situation
Section 177i.e. such as that
where the offence envisaged in the
was committed latter had
was qualified by occurred.
Section 182i.e.
conferral of
jurisdiction on
multiple Courts
when the place of
offence was not
determined.
Page 2 of 5
Conclusion
2. Venkatesan v Income Tax Act, Sea Customs Act, The question The Court held
Nihal Chand 1961 1878 before the Court that the amount
AIR 1962 Cal 258 was whether an could not be taxed
[LNIND 1961 CAL erroneously paid as income from
157] customs duty business, and the
which ought to be special Act would
refunded under the prevail even if it is
1878 Act ought to antecedent to the
be taxed as general Act.
income from
business under the
1961 Act.
3. Abharan Chandra Bengal Tenancy West Bengal Non- Whether non- The Court held
Saha v Sanat Act, 1885 Agricultural agricultural that the right would
Kumar Sen AIR Tenancy Act, 1949 tenancies would be able to the
1964 Cal 460 be subject to the landlord under the
[LNIND 1963 CAL 1885 Act i.e. would general law
179] the right of pre- irrespective of the
emption available 1949 Act.
under the general
law be available to
non-agricultural
tenancies.
4. State of Gujarat v Section 169 - Section 173 - The question was The Court held
Shah Lakhamshi Code of Criminal Code of Criminal whether beyond that no such power
Umarshi Procedure, 1973. Procedure, 1973. the general could be read
AIR1966 Guj 283 powers of the under Section 173,
magistrate, he and the general
could order the powers under
investigating Section 169 were
officer to submit a exhaustive.
chargesheet if he
disagreed with the
findings of the
police.
5. Mongibai Hariram Bombay Land Bombay Rents, The question The Court held
v State of Requisition Act, Hotel and Lodging before the Court that the 1957 Act,
Maharashtra AIR 1948 House Rates was whether an being a special
1966 SC 882 Control Act, 1957 order of eviction legislation
[LNIND 1965 SC against a rent operating on a
268] defaulter in a species of
paying-guest like property, would
accommodation apply over the
would be under general Act.
the 1948 Act or
1957 Act.
6. Carona Sahu Co v Transfer of Rajasthan The process of The special law

VK Goyal Property Act, 1882 Premises (Control eviction was will prevail over
AIR 1979 Raj 1 of Rent and different in both the general law.
[LNIND 1978 RAJ Eviction) Act, 1950 statutes.
70]
7. Adarsh Krishi Essential Defence of India The maximum The 1971 Rules
Sewa Kendra v Commodities Act, Rules, 1971 price of fertilizers were special law
Government of 1955 prescribed was and had been
Madhya Pradesh different in orders enacted as a war-
AIR 1981 MP 44 passed under the time measure.
[LNIND 1980 MP Act and the Rules. Hence, they would
Page 3 of 5
Conclusion
109] prevail over the

1955 Act.
8. RS Raghunath v Karnataka Civil Karnataka General The question The Court held
State of Karnataka Services (General Service (Motor before the Court that the general
(1992) 1 SCC 335 Recruitment) Vehicles Branch) was whether the rules were fully
[LNIND 1991 SC Rules, 1977 Recruitment promotion of those qualified by the
516] Rules, 1976 employed in the special rules, and
Motor Vehicles the rules
Branch would be applicable for
governed by the promotion for the
general rules or particular branch
the special rules. would be the
This controversy special rules
arose because the enacted for the
former rules branch.
prescribed merit,
and the latter
prescribed
seniority-cum-
merit, as the
grounds for
promotion.
9. Collector of Section 11A - Rule 57-I - The question The Court held
Central Excise v Central Excise Act, before the Court that the Rules
Tata Engineering 1944 Central Excise was whether a six were a self-
and Locomotive Rules, 1944 month period of contained code,
Works 1999 (65) limitation and being of the
ECC 11 prescribed in the character of
Section would be special law, the
applicable to the general law under
collection of Section 11A would
wrongly availed have no
MODVAT under application.
Rule 57-I.
10. Collector of Section 11A - Rule 57-I - The question The Court held
Central Excise v Central Excise Act, before the Court that the Rules
M/S Raghuvar 1944 Central Excise was whether a six were a self-
(India) Ltd. Rules, 1944 month period of contained code,
(2000) 5 SCC 299 limitation and being of the
[LNIND 2000 SC prescribed in the character of
886] Section would be special law, the
applicable to the general law under
(Confirmed the collection of Section 11A would
decision of the wrongly availed have no
High Court in MODVAT under application.
Collector of Rule 57-I.
Central Excise v
Tata Engineering
and Locomotive
Works)
11. M. Babu Rao v Andhra Pradesh Recovery of Debts The question The Court held
Deputy Registrar Co-operative Due to Banks & before the Court that the provisions
2005 (4) ALT 327 Societies Act, Financial was whether of the 1964 Act
1964 Institutions Act, matters were incompatible
1993 concerning debts with the 1993 Act,
of co-operative and hence had to
banks were to be read down as
adjudicated under the 1993 Act was
Page 4 of 5
Conclusion
the 1964 Act or the a Central Act.

1993 Act. Hence, the Court
conferred
jurisdiction on the
DRT established
under the 1993
Act, negating the
jurisdiction of the
Deputy Registrar,
established under
the 1964 Act.
12. Gujarat Urja Sick Industrial Recovery of Debts The question The Court
Vikash Nigam Ltd Companies Due to Banks & before the Court accepted that the
v Essar Power Ltd (Special Financial was whether an latter Act was both
(2008) 4 SCC 755 Provisions) Act, Institutions Act, order under the lexspecialis and
[LNIND 2008 SC 1985 1993 1985 Act would lex posterior, yet
681] have the effect of the object and
restricting the purpose of the
jurisdiction of the 1985 Act, as well
Debt Recovery as the non-
Tribunal obstante clause in
established under both Acts, was
the 1993 Act. considered by the
Court in holding
that the 1985 Act
would prevail over
the 1993 Act.
13. Board of Wakf, Article 226 - Wakf Act, 1995 The question The Court held
West Bengal v Constitution of before the Court that the Wakf Act
Anis Fatma India was whether a was a recent
Begum matter relating to a enactment, and for
(2010) 14 SCC Wakf should, in the special
588 [LNIND 2010 the first instance, purpose of
SC 1127] be filed in the adjudicating Wakf
Wakf Tribunal, or related disputes.
could a civil court Hence, a Wakf
or a High Court dispute ought to
consider the be entertained in
matter. the first instance
by the Wakf
Tribunal.
14. M/S Spectrum Arbitration and Electricity Act, The question The Court held
Power Generation Conciliation Act, 2003 before the Court that the 2003 Act
v M/S 1996 was whether the was a special
Transmission 1996 Act would legislation, and
Corporation of govern arbitration hence arbitration
India (2011) proceedings proceedings
between licensees conducted by
(available at and generating virtue of its
http://aptel.gov.in/j companies. provisions would
udgements/10%20 only be governed
augustFinal%2090 by the Act, and the
_of_2011.pdf) 1996 Act had no
application in such
arbitrations.
15. Official Liquidator Companies Act, Recovery Officer The question The Court held
v Allahabad Bank 1956 under the before the Court that the 1993 Act
(2013) 4 SCC 381 Recovery of Debts was whether the was a special
Page 5 of 5
Conclusion
[LNIND 2013 SC due to Banks and Company judge, provision and a

1110] Financial awarded self-contained
Institutions Act, jurisdiction under code and hence,
1993 the 1956 Act, the tribunal had
could pass an exclusive
order to set aside jurisdiction to deal
an order of auction with such matters.
or sale passed by Hence, the
the DRT. Company judge
would have no
jurisdiction in such
matters under the
1956 Act.
52 . Decided on 21.10.2011, Writ Petition No. (S/S) 463 of 2010 relying upon Maya Mathew v State of Kerala (2010) 4
SCC 498 [LNIND 2010 SC 190].
End of Document
Documents (74)
1. Introduction
Narrowed by:
2. Substantive and Procedural Laws

Narrowed by:
3. Rules of Construction
Narrowed by:
4. Procedural Law and Retrospective Effect

Narrowed by:
5. Amending Statutes
Narrowed by:
6. Reasons for Amending Statutes

Narrowed by:
7. Effect of Amendment on Parent Statute

Narrowed by:
8. Construction of Amending Statutes

Narrowed by:
9. Cautious Interpretation
Narrowed by:
10. Alteration in Law

Narrowed by:
11. When an Amendment Takes Effect

Narrowed by:
12. Effect of Amendment on Judicial Decisions

Narrowed by:
13. Effect of Invalidity of Amendment on Original Act

Narrowed by:
14. Codifying Statutes

Narrowed by:
15. Consolidating Statutes

Narrowed by:
16. Construction of Consolidating Statutes
Narrowed by:
17. Enabling Statutes

Narrowed by:
18. Inference from Negative Words

Narrowed by:
19. Inference from Affirmative Words

Narrowed by:
20. Power Conferred within Specified Purposes

Narrowed by:
21. Anticipatory Provisions
Narrowed by:
22. Conclusion
Narrowed by:
23. Introduction
Narrowed by:
24. Beneficial Statutes and Rule of Beneficent Construction

Narrowed by:
25. Remedial Statutes and their Interpretation

Narrowed by:
26. Interpretation ought to Prevent a Failure of Intention

Narrowed by:
27. Illustrations of Welfare Legislation

Narrowed by:
28. Illustrations from Socio-economic and Labour Legislations

Narrowed by:
29. Conclusion
Narrowed by:
30. Introduction
Narrowed by:
31. Expropriating Statutes

Narrowed by:
32. Emergency Legislation and Public Order

Narrowed by:
33. Penal Statutes

Narrowed by:
34. Benefit to the subject in case of doubt and Standards of compliance

Narrowed by:
35. Where Two Interpretations Possible

Narrowed by:
36. Evolution of common standards of interpretation and the discarding of strict interpretation
Narrowed by:
37. The rule of strict construction today
Narrowed by:
38. Law as it Exists on the Date of the Judgment

Narrowed by:
39. Conclusion
Narrowed by:
40. Introduction
Narrowed by:
41. Taxation only by Express Words

Narrowed by:
42. Rule to Determine Tax Liability
Narrowed by:
43. Literal Construction

Narrowed by:
44. Strict Construction

Narrowed by:
45. Fair Interpretation

Narrowed by:
46. Exemptions from Taxation

Narrowed by:
47. Ambiguous Words

Narrowed by:
48. Intention of the Legislature how Far Effectuated

Narrowed by:
49. Substance and not Form to be Taken into Consideration

Narrowed by:
50. Tax Planning and Tax Evasion

Narrowed by:
51. Retrospective Effect91

Narrowed by:
52. Constitutional Validity

Narrowed by:
53. Conclusion
Narrowed by:
54. Chapter 19
Narrowed by:
55. Precedents and Interpretation

Narrowed by:
56. Introduction
Narrowed by:
57. Juristic Opinion on Precedents

Narrowed by:
58. Reliance on Precedents in Pre-Independence India
Narrowed by:
59. Binding Value of Privy Council Decisions in Post Independence India

Narrowed by:
60. Doctrine of Precedent after the Constitution

Narrowed by:
61. Whether Supreme Court bound by its own decisions

Narrowed by:
62. Binding force of Supreme Court Obiter

Narrowed by:
63. Precedents to Guide Interpretation
Narrowed by:
64. Legislative Power to Override Precedent

Narrowed by:
65. Decisions from Different Benches and Bench Strength

Narrowed by:
66. Overruling of Precedents

Narrowed by:
67. Large Benches and the Uncertainty of Precedent

Narrowed by:
68. Case Studies on Operation of the Theory of Precedent in Specific Areas of law
Narrowed by:
69. Right to Life and Liberty : The Chequered Jurisprudence of Article 21

Narrowed by:
70. Interpreting the Text of Article 21

Narrowed by:
71. Fundamental Rights: Self-contained Codes?

Narrowed by:
72. Conclusion
Narrowed by:
73. Appendix The General Clauses Act 1897

Narrowed by:
74. The General Clauses Act 1897(A)

Narrowed by:
Introduction
NS Bindra
Edition > Part III The Contextual Dimension of Interpretation > CHAPTER 15 Substantive and
Procedural Laws, Amending, Codifying, Consolidating and Enabling Statutes
Introduction
Statutes can also be classified according to their nature and function. The characterization of a statute as
substantive or procedural with the attendant interpretational consequences is first examined in this chapter. Next
the chapter explains the difference between amending, codifying, consolidating and enabling statutes and then
elaborates on the relation between such like characterization of a statute and its interpretation.
End of Document
Substantive and Procedural Laws
NS Bindra
Law defines the right which it will aid and specifies the way in which it will aid. So far as it defines, thereby creating,
it is Substantive Law. So far as it provides a method of aiding and protecting, it is Adjective Law.1 The adjective law
is also termed as procedure which is a term used to express the mode of proceeding by which a legal right is
enforced, as distinguished from the law which gives or defines the right and which, by means of the proceeding, the
court is to administer the machinery as distinguished from the product.2 In other words, the expression procedure
means the manner and form of enforcing the law.3 In the exceptional cases in which an injured party is allowed to
redress his own wrong, adjective law points out the limits within which such self-help is permissible. In all other
cases it announces what steps must be taken in order to duly set in motion the machinery of the law courts for the
benefit either of a plaintiff or a defendant.No litigant has a vested right that his appeal should be heard by a
particular number of judges. The provision of an Act prescribing the powers of single judge and division courts are
only matters affecting procedure. There is a distinction between a right of action and a right of action to be
conducted in a particular way. The former is a vested right while the latter is merely a matter of procedure.4
In Dove Investments v Gujarat Industrial Investment Corporation,5 the Court observed that ordinarily a procedural
provision would not be mandatory even if the word shall is employed therein unless it causes prejudice. However,
even if a statute is directory in nature the same should be substantially complied with. The court opined that what
would amount to requirements of such a substantial compliance would depend on the facts and circumstances of
each case6.
According to Salmond,7 the law of procedure may be defined as that branch of the law which governs the process
of litigation. It is the law of actionsusing the term action in a wide sense to include all legal proceedings, civil or
criminal. All the residue is substantive law, and relates, not to the process of litigation, but to its purpose and subject
matter. Substantive law is concerned with the ends which the administration of justice seeks; procedural law deals
with the means and instruments by which those ends are to be attained. The latter regulates the conduct and
relation of courts and litigants in respect of the litigation itself, the former determines their conduct and relations in
respect of the matters litigated.
Holland, in his book on Jurisprudence, explaining the scope adjective law says:8
A remedial right is in itself a mere potentiality, deriving all its value from the support which it can obtain from the
power of the State. The mode in which that support may be secured, in order to [realise] a remedial right, is
prescribed by that category of law which has been called adjective because it exists only for the sake of substantive
law but is probably better known as procedural.
In Girdharilal Sons v K Bappini Gowder,9 the question before the Court was whether Section 74 of the Indian
Partnership Act, 1932, which saved vested rights accrued prior to the commencement of the Act, would save a right
to institute a suit of an unregistered firm, which was barred by Section 69 of the Act. It was argued that Section 69
was in the nature of procedural law, and hence, ought to be construed as not affecting the remedy occurring before
the enforcement of the Act. The Court did not agree with this interpretation, and observed that Section 69 was not a
procedural but a substantive provision. Thus, the Court held (on the basis of retrospective operation and vested
rights) that the effect of Section 74 was to save the right to file a suit prior to the commencement of the Act,
notwithstanding Section 69.
Page 2 of 2
In G Vijayalakshmi v GPS Sastry,10 the Court was considering its power to transfer a suit under section 25 of the
Civil Procedure Code, 1908, and whether Section 25 got excluded by Sections 21 (Application of the CPC to
proceedings under the Act) and 21A (Power to transfer petitions in certain cases) of the Hindu Marriage Act, 1955.
The Court observed that Section 21 did not make any distinction between the substantive and procedural aspects
of the CPC, and hence, the exclusion under Section 21 ought to be construed strictly. The Court held that Section
21 did not completely exclude the operation of Section 25.
1 . Holland, Jurisprudence, Ch VII.
2 . Poyser v Minor LR 7 QBD 333, per Lash J.
3 . AK Gopalan v State [1950] SCR 407, p 464, per Mukherjea J.
4 . Chellappan v State (1959) Mad LJ 271 (Cr): it follows that the provision in the High Court Act of 1959 empowering a
single judge to hear an appeal of the category in question must have retrospective operation so as to apply to pending
appeals.
5 . (2006) 2 SCC 619 [LNIND 2006 SC 75].
6 . For a detailed analysis of mandatory and directory provisions see Part II, chapter 8 supra.
7 . Salmond, Jurisprudence, tenth edn, pp 475-76, TW Arnold, Rule of Substantive Law and Procedure in the Legal
Process, 1932, 45; Harvard Law Review, p 617; WW Cook, Substance and Procedure in the Conflict of Law, 1932 p
42; Yale Law Journal, p 358.
8 . Holland, Jurisprudence, thirteenth edn, 1924, pp 358-59; Wharton in his Law Lexicon explains it thus: The mode in
which successive steps in litigation are taken.
10 . AIR 1981 SC 1143 [LNIND 1981 SC 159]: case under the Hindu Marriage Act 1955.
End of Document
Rules of Construction
NS Bindra
There is a difference in the manner of construction between a law dealing with substantive rights, which are already
vested, and a law relating to procedure. There is no vested right in procedure but the case of vested rights is
different.11 A rule of procedure enacted in a statute must, moreover, be liberally construed so as to lead to the
smooth working of the scheme of the statute.12 It is a general rule relating to the construction of statute that in the
absence of an express provision, an adjective law cannot control the provisions of substantive law.13 While
interpreting a procedural law, the court also takes into consideration the impact it is calculated to have on the
course of litigation and decision making.14 It stands to reason that the procedure provided in a statute for
enforcement of substantive rights conferred thereby should be construed as far as possible so as to give effect to
and not to nullify those rights.15 A mere procedural provision ought not to be allowed to whittle down or modify a
substantive provision of law.16 Procedural enactments should be construed liberally and in such manner as to
render the enforcement of substantive right effective.17 Unless there is compulsion, the procedural law should be
read to advance the cause of justice and should not be construed strictly so that the vested rights of the parties, to
get a matter adjudicated on merits, are frustrated. The surest test for determining whether a provision in mandatory
or directory is to see whether a sanction is provided upon its infringement.18 According to Lord Penzance in
Kendall v Hamilton:19
Procedure is but the machinery of law, after all the channels and means, whereby law is administered and justice
reached. It strangely departs from its proper office when, in place of facilitating, it is permitted to obstruct, and even
extinguish, legal rights and is thus made to govern where it ought to subserve.
In MV Vali Press v Fernandee Lopez,20 the Court observed:
Rules of procedure are not by themselves an end but the means to achieve the ends of justice. Rules of procedure
are tools forged to achieve justice and are not hurdles to obstruct the pathway to justice. That construction of the
rule of procedure, which promotes justice and prevents it miscarriage by enabling the court to do justice in myriad
situations, all of which cannot be envisaged, acting within the limits of permissible construction, must be preferred to
that which is rigid and negatives the ends of justice. The reason is obvious: procedure is a means to subserve and
not rule the cause of justice.
In Sangram Singh v Election Tribunal, Kotah,21 the question before the Court was whether the Election Tribunal
was bound by the Code of Civil Procedure, 1908, and as a result, could not allow a party to make an appearance
after passing anex-parte order. The Court held that as it was a question of procedure, and hence, the Court ought
to construe the concerned provision liberally and every effort ought to be made to not deprive the tribunal of its
discretion to permit a party to make an appearance. The Court observed:
A code of procedure is a body of law designed to facilitate justice and further its ends, and should not be treated as
an enactment providing for punishments and penalties. The laws of procedure are grounded on the principle of
natural justice which requires that men should not be condemned unheard, that decisions should not be reached
behind their backs, that proceedings that affect their lives and property should not continue in their absence and
that they should not be precluded from participating in them. Subject to clearly defined exceptions the laws of
procedure should be construed wherever reasonably possible, in the light of that principle. The court is invested
Page 2 of 3
with the widest possible discretion to see that justice is done to all concerned. No hard and fast rule can be laid
down; and the court in the exercise of its judicial discretion will have, in a given case, to determine what
consequences are to follow from non- appearance. An order awarding costs, or an adjournment, or the
consideration of the written statement and the framing of the issues on the spot, can in some cases meet the ends
of justice. In other cases, more drastic action may be called for...By ends of justice is meant not only justice to the
parties but also to witnesses and others who may be inconvenienced. The convenience of the witnesses, which
deserves the greatest consideration, is ordinarily lost sight of in this class of case. Justice strongly demands that
this unfortunate section of the general public compelled to discharge public duties, usually at loss and
inconvenience to themselves should not be ignored in the over-all picture of what will best serve the ends of justice;
and it may well be a sound exercise of discretion in a particular case to refuse an adjournment and permit the
plaintiff to examine the witnesses present and not allow the defendant to cross-examine them.
In Amarjit Singh Kalra v Pramod Gupta,22 the Court was construing Order XXII, Rule 4 of the Code of Civil
Procedure, 1908, which dealt with the procedure to be followed in the case of death of one of the defendants or the
sole defendant. The controversy arose because it was argued that a delay in bringing the legal representatives on
record would lead to the abatement of the suit. The Court disagreed with the argument, and condoned the delay.
On the construction of procedural provisions, the Court observed:
With the march and progress of law, the new horizons explored and modalities discerned and the fact that the
procedural laws must be liberally construed to really serve as handmaid, make it workable and advance the ends of
justice, technical objections which tend to be stumbling blocks to defeat and deny substantial and effective justice
should be strictly viewed for being discouraged, except where the mandate of law, inevitably necessitates it.
Consequently, having regard to the nature of the proceedings under the Act and the purpose of reference
proceedings and the appeal therefrom, the Courts should adopt a liberal approach in the matter of condonation of
the delay as well as the considerations which should weigh in adjudging nature of the decree, i.e., whether it is joint
and inseverable or joint and severable or separable...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 merits of
substantial rights of citizen 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 or sanctify miscarriage of justice.
In Rupadhar Pujari v Gangadhar Bhatra,23 the Court was considering whether a person was validly nominated as a
duly elected candidate under Section 38 of the Representation of the People Act, 1951. This controversy arose
because the other candidate, who had been disqualified from contesting the election, argued that the other
candidate could not be declared as the duly elective candidate under Section 38, and the procedure prescribed for
such a declaration ought to be construed strictly. The Court rejected the contention because it viewed the argument
as a technical objection which was raised to defeat and deny substantial and effective justice.
In N Balaji v Virendra Singh,24 the Court was construing the provisions relating to limitation under Sections 74 (2)
and 74 (3) of Multi State Cooperative Societies Act, 1984. The Court observed:
It follows from the decision by the Constitution Bench that the procedure would not be used to discourage the
substantial and effective justice but would be so construed as to advance the cause of justice.
In Mahadev Gharge v Special Land Acquisition Officer,25 the matter dealt with Order XLI (Appeals) of the CPC.
Rule 22 allows the respondent to file cross objections to the decree under appeal within one month from the date of
service on him or his pleader of notice of the day fixed for hearing the appeal, or within such further time as the
Appellate Court may see fit to allow. The question before the Court was the interpretation of the discretion vested in
the Court to waive the limitation period mentioned in the section.
The Court held that strict construction of a procedural law was called for where there was complete extinguishment
of rights, and liberal interpretation was required with provisions where discretion was vested in the courts to balance
the equities between the parties to meet the ends of justice. The Court relied on various precedents to hold that
procedural laws are intended to control and regulate the procedure of judicial proceedings to achieve the objects of
justice and expeditious disposal of cases. On the basis of these doctrines of interpretation, the Court held that the
respondent must furnish sufficient cause for the Court to condone delay.
For more illustrations on the difference procedural and substantive law see Table 3.3.
Page 3 of 3
Limitation Act
The provisions in the Limitation Act cannot necessarily be taken as formulating or effecting principles of substantive
law. In fact, if the history of the several amendments carried out in the articles of the Limitation Act is looked into, it
will be noticed that the amendments, particularly regarding the starting point of limitation, have been affected more
with a view to avoid difficulties encountered in the practical application of the amended articles than with a view to
change the principles of substantive law.
In Union of India v West Coast Paper Mills Ltd,26 it was held that despite the rigours of Section 3 of the Limitation
Act, 1963, it should be construed in a broad-based and liberal manner placing reliance on the observation of Vivian
Bose J. inState of Uttar Pradesh v Mohammad Nooh27 that justice should be administered in a common sense
liberal way and be based on human values rather than on narrow and restricted considerations hedged around with
hair-splitting technicalities.
11 . Manendra Raut v Darsan Raut (1952) ILR 31 Pat 446, AIR 1952 Pat 341.
12 . Ram v Ram Narain (1953) All WR 143 (HC) ; Somulu v Venkatashwamy (1962) 2 Andh WR 138; Qazi Vemt Ullah v
Sixth Addl Dist Judge, Gorakhpur AIR 1993 All 126 [LNIND 1992 ALL 373].
13 . Collector of Broach v Ochhavlal All 1941 Bom 158-59, (1941) ILR Bom 147; Huri (Mst) v Roshan AIR 1923 Sind 5.
14 . Ram Jas v Surendra Nath AIR 1980 All 385 : case under the Evidence Act, ss 90 and 90 A.
15 . Palam Goundan v Peria Goundan AIR 1941 Mad 158 [LNIND 1940 MAD 319], p 160.
16 . Rustam Dinshaw Petal v State of Bombay (1933) 55 Bom LR 268.
17 . Velluswami v Raj Nainar AIR 1959 SC 422 [LNIND 1958 SC 148], p 426; Chitra Kumar v Ganga Ram 1966 Jab LJ
1028; Amritsar Improvement Trust v Ishri Devi (1979) Rev LR 307, (1979) Cur LJ 246, (1979) 81 Punj LR 354, (P&H)
(Civ).
18 . Naran Anappa Shethi v Jayanthilal Chunilal Shah AIR 1985 Guj 205.
19 . [1879] 4 AC 504 , p 525; procedure is the judicial process for enforcing right and duties recognised by substantive
law and for justly administering the remedy and redress for disregard or infraction their; Sibbach v Wilson & Co 85 LED
479, 312 US 1, per Roberts J.
20 . AIR 1989 SC 2206 [LNIND 1989 SC 453].
21 . AIR 1955 SC 425 [LNIND 1955 SC 2], p 429; Central Bureau of Investigation, Spl Investigation Cell, New Delhi v
Anupam J Kalkani (1992) Cr LJ 2768 (SC).
22 . (2003) 3 SCC 272 [LNIND 2002 SC 821].
23 . (2004) 7 SCC 654 [LNIND 2004 SC 1033]
24 . (2004) 8 SCC 312 [LNIND 2004 SC 1034].
25 . [2011] 8 SCR 829 [LNIND 2011 SC 509].
26 . (2004) 2 SCC 747 [LNIND 2004 SC 264]; see also LS Synthetics v Fairgrowth Financial Services Ltd (2004) 11SCC
456: similar ruling on according a broad construction to limitation statutes.
27 . [1958] SCR 595 [LNIND 1957 SC 99].
End of Document
Procedural Law and Retrospective Effect
NS Bindra
Procedural Law and Retrospective Effect
It is no doubt true that nobody has a vested right in procedural law, that is to say, when change is made in a
procedural law it takes retrospective effect. But this is not always true. The Supreme Court, in Vinod Gurudas
Raikar v National Insurance Co Ltd,28 held that, the right to claim benefit of provision for condonation of delay is
governed by the law in force at the time of delay, though there was no change in the duration of delay. Where a
suit, in its initial stage, was pending in the trial court and a change was effected by amendment of the procedure to
be followed in the trial of the suit, the changed procedure should be followed, because no right of any person would
be affected at that stage. But when, by the enforcement of the amendment, the validity of a judicial order validly
passed is affected, it cannot be given retrospective effect if proceeding has reached the appellate stage.
28 . AIR 1991 SC 2156 [LNIND 1991 SC 435].
End of Document
Amending Statutes
NS Bindra
Amending Statutes
There are different definitions of the term Amendment as it applies to legislation. Sometimes it is used in the sense
of change of something proposed in a bill. However, the term amendment is used therein in the sense of an Act
which changes the law. A law is amended when it is, in whole or in part, permitted to remain, and something is
added to or taken from it, or it is in some way changed or altered to make it more complete or perfect, or make it
suitable to accomplish the object or purpose for which it was made, or some other object or purpose.29 It is an
alteration or change of something established as law. When the legislature amends an Act by deleting something
which was there, then in the absence of an intention to the contrary, the deletion must be taken to be deliberate.30
The power of adaptation is limited to the making of formal or verbal changes in the Act so as to make it applicable
to new administrative set up in that area. Under the guise of adaptation no authority can make any essential change
in the Act, nor alteration in the policy.31
Sutherland says:32
Any change of the scope or effect of an existing statute, whether by addition, omission, or substitution of provisions,
which does not wholly terminate its existence, whether by an Act purporting to amend, repeal, revise, or
supplement, or by an Act independent and original in form, is treated as amendatory. And it is the effect, not the
name given to an Act that determines its character. If a subsequent statute does, in fact, modify and change the
proceedings to be had under a former Act, the latter Act is an amendment of the earlier Act and must be so
regarded and treated, although it is not so called in the Act itself...The distinction between repeal and amendment
as these terms are used by courts is arbitrary. Naturally the use of these terms by the court is based largely on how
the legislature has developed and applied these terms in labelling their enactments. When a section is being added
to an Act or a provision added to a section, the legislatures commonly entitled the Act as an amendment...When a
provision is withdrawn from a section, the legislatures call the Act an Amendment particularly when a provision is
added to replace the one withdrawn. However when an entire Act or section is abrogated and no new section is
added to replace it, legislatures label the Act accomplishing this result a repeal. Thus as used by the legislatures
amendment and repeal may differ in kindaddition as opposed to withdrawal or only in degreeabrogation of part of a
section as opposed to abrogation of a whole section of an Act. The arbitrary distinction has been followed by the
courts and they have developed separate rules of construction for each. However they have recognised that
frequently an Act purporting to be an amendment has the same qualitative effect as a repealthe abrogation of an
existing statutory provisionand have therefore applied the term implied repeal and the rules of construction
applicable to repeals to such amendments.
Since an amendatory Act alters, modifies or adds to a prior statute all courts should hold, according to
Sutherland,33 that a repealed Act cannot be amended, that is, no court will give effect to a repealed law because
the legislature attempted to amend it. The reference to the repealed statute is dismissed as surplusage and the will
of the legislature as embodied in the provisions of the attempted amendments are enforced as an independent Act.
But where it is clear that the legislature enacted the amendment as part of a plan in which the continued vitality of
the provisions of the repealed statute is fundamental and necessary, or where such an intention is indicated by the
fact that the amendment is unintelligible or incomplete without reference to and enforcement of the repealed Act,
the provisions of the attempted amendment are not enforced.
While dealing with the amendments of the constitutional statutes, Sutherland further makes the following
observation:
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Amending Statutes
Amendments are frequently used to cure an unconstitutional enactment but clearly no court will enforce the
amendment unless the law as amended is constitutional...If the provisions of the attempted amendment are
intelligible, complete, considered and constitutional, it is evident that the legislature did not intend their enforcement
to be dependent on the continued legal existence of the original Act and the court will enforce the new provisions as
an original Act... If the intent of the legislature appears to be otherwise, as where the provisions of the attempted
amendment are unintelligible or incomplete without reference to the unconstitutional Act, the attempted amendment
will be held invalid...Probably a majority of the courts have rejected the theory that unconstitutional Act has no
existence, at least for the purpose of amendment. The unconstitutional Act physically exists in the official statutes of
the state and is there available for reference, and as it is only unenforceable, the purported amendment is given
effect. If the law as amended is constitutional it will be enforced...Amendment offers a convenient method of curing
a defect in an unconstitutional Act.
Crawford34 observes thus:
There is likewise a conflict in the authorities whether a statute which is unconstitutional in its entirety, can be
amended. Some authorities hold that such a statute cannot be amended, for the reason that if the original
enactment is completely unconstitutional, there is nothing to amend, since an unconstitutional Act, being void, has
no existence as a law. Other authorities, however, adhere to the view that a statute unconstitutional in its entirety,
may be amended, provided the amendment qualifies as a complete and independent statute in aid of itself...But
where a statute is unconstitutional in part only, it may be laid down, as a general rule, undoubtedly in all
jurisdictions, that the statute may be amended by obliterating the invalid provisions or by correcting those which
violate the Constitution...Of course, if the amendatory statute is wholly void, the statute sought to be amended is not
affected but remains in force. It is as inoperative as if it had never been enacted; or the Act sought to be amended
is, at least, reinstated in its effectiveness upon the established invalidity of the amendment.
In Bhagat Ram Sharma v Union of India,35 the Court was considering an amendment to Regulation 8 (3) of the
Punjab State Public Service Commission (Conditions of Service) Regulations, 1958. The amendment used the
expression substituting, due to which it was argued that the amendment ought to have retrospective effect, as the
amendment didnt purport to change the law. Rather, the amendment sought to clarify the law. The Court rejected
this contention, and observed:
It is a matter of legislative practice to provide while enacting an amending law, that an existing provision shall be
deleted and a new provision substituted. Such deletion has the effect of repeal of the existing provision. Such a law
may also provide for the introduction of a new provision. There is no real distinction between repeal and an
amendment...Amendment is, in fact, a wider term and it includes abrogation or deletion of a provision in an existing
statute. If the amendment of an existing law is small, the Act professes to amend; if it is extensive, it repeals a law
and re-enacts it. An amendment of substantive law is not retrospective unless expressly laid down or by necessary
implication inferred.
29 . US, ex rel Palmer v Lapp (1917) 244 Fed 377.
30 . HV Kamath v Election Tribunal AIR 1958 MP 168 [LNIND 1957 MP 55], p 173; DR Fraser & Co v Minister of National
Revenue [1949] AC 24.
31 . Dandapani v State of Orissa AIR 1962 Ori 17 [LNIND 1961 ORI 7], p 19, per Narasimham CJ.
32 . Sutherlands Statutory Construction, third edn, vol 1, p 477.
33 . Sutherland, Statutory Construction, Third edn, Vol 1, pp. 328, 335.
34 . Crawford, Statutory Construction, Third edn, Vol 1, pp. 172-73.
35 . AIR 1988 SC 740 [LNIND 1987 SC 761], (1987) (5) JT 476 SC.
End of Document
Reasons for Amending Statutes
NS Bindra
Reasons for Amending Statutes
It is not necessary to hold that in every case where the legislature amends the law, that it does so because for the
amendment, the effect would have been something different. There are innumerable cases in the history of
legislation where the legislature has added or deleted words in order to clarify the position.36 Amendments are
often made to clear up ambiguities and such amendments which are intended to prevent misinterpretation do not in
themselves alter the law in any way.37 In tax legislation, it is far from uncommon to find amendments introduced at
the instance of the revenue department to obviate judicial decisions which the department considers to be attended
with undesirable results.38 Repealing and amending Acts are enacted by the legislature from time to time in order
to repeal enactments which have Ceased to be in force or have become obsolete or the retention thereof as
separate Acts is quite unnecessary. The principal object of such Acts is to excise dead matter, prune off
superfluities and reject clearly inconsistent enactments. An Act of this kind may be regarded as legislative
scavenger.39
36 . Kikabhoy v Income-tax Commr AIR 1950 Bom 6, p 9, Midnapur Zamindary Co v Secretary of State AIR 1938 Cal 804,
p 811; Helvering v New York Trust Co 292 US 455, 78 L Ed 1361.
37 . Secretary of State v Purnendu Narayan Roy (1933) ILR 60 Cal 123,p 135: their lordships did not assent to the
proposition that any amendment made in the language of any legal enactment must be taken to import a change in the
law.
38 . Fraser & Co v Revenue Minister AIR 1947 PC 120.
39 . Mohindar Singh v Harbhajan Kaur AIR 1955 Punj 141: the provisions of s 4 of the Cr PC (Amendment) Act 1952,
make it quite clear that although the Act of 1949 has been repealed, the substantive portion of the Act which was
incorporated in Cr PC and which became a part and parcel of it, continue to remain intact; the Act of 1952 was enacted
with the sole object of getting rid of a certain quantity of obsolete matters.
End of Document
Effect of Amendment on Parent Statute
NS Bindra
Effect of Amendment on Parent Statute
The purpose of an amending Act is to plant the necessary amendments in the parent or the main Act, and once
such planting has been effected, the planting Act (the amending Act), having served its purpose, need not any more
remain there to tend the plant, as it were, the plant has taken root, in the main Act, and thereafter, the amending Act
has only to be repealed and if an amending Act is so repealed by a repealing Act, the repeal does not affect the
plant, the amendment already planted in the main Act. Therefore the repeal of an amending Act does not affect the
amendments which have already been brought into the main Act.40
In Dasu Khan v Mohan Bhagat,41 the Patna High Court was considering amendments made in 1951 and 1956 to
the Ranchi District Tana Bhagat Raiyats Agricultural Lands Restoration Act, 1948, which enlarged the definition of
Tana Bhagats to include all lands, and omitted all reference to aboriginals in the unamended Act. It was argued that
the 1948 Act was ultra vires Article 299 of the Constitution, and hence it ought to be eclipsed and inapplicable. Per
contra, it was argued that the effect of the amendments was to completely re-enact the 1948 Act at a later date.
Due to the inclusion of Article 31, it was argued that the re-enacted 1948 Act was constitutionally valid. The Court
observed:
The question ultimately depends on ascertaining the intention or will of the Legislature with a view to decide
whether the reference to the unconstitutional parent Act in the amending Act is merely for the purpose of
identification so that the amending Act when construed with the provisions of the parent Act referred to therein may
be held to be a complete law on the subject...Hence merely because the Legislature in India followed the
established practice of drafting an amending Act by naming the omissions and insertions to be made to the parent
Act, it does not necessarily follow that the Legislature did not intend the amending Act to be a complete law on the
subject and as a re-enactment of the old Act subject to such modifications as may be made in the amending Act,
The amending Act cannot stand isolated and must be held to have formed part of the parent Act after incorporating
the amendments.
Hence, the Court held that the amendments could not be considered as having re-enacted the 1948 Act.
40 . Raman Sahadevan v Kesvan Nair AIR 1973 Ker 136-37, per Raghavan, CJ; Khuda Bux v Caledonian Press AIR 1954
Cal 484 [LNIND 1954 CAL 62], p 486, per Chakravarti CJ.
41 . AIR 1966 Pat 425.
End of Document
Construction of Amending Statutes
NS Bindra
In interpreting an amendment, it is not proper to assume that the legislature intended to make any basic departure
from the existing law, unless the language employed either expressly or by necessary implication suggests that
interpretation is the most appropriate one. Ordinarily an amendment is intended to carry out the immediate
legislative objective.42 Generally, a local amendment of one state cannot be used in interpreting the same
provision (not so amended) in another state.43
Sutherland observed thus:44
In interpreting an amendatory Act, the courts have followed the principles of construction used in the interpretation
of an original Act, making special use of certain principles of interpretation particularly applicable to an amendatory
Act; but in addition they have developed at least one principle of construction peculiar to an Act purporting to
change an existing statute. Thus, as in the case of original Acts, the object in construing an amendatory Act is to
determine the legislative intent. To do so, the court will reach the amendment as a whole. Words of common use
will be construed in their natural, plain and ordinary meaning. If possible, effect must be given to every word. The
amendment will be given a reasonable construction: a literal construction which would lead to absurd
consequences will be avoided. When the intent of the legislature is not clear from its language, the court will
consider surrounding circumstances. The court will examine the title of the amendment. It will consider records of
legislative proceedings and reports of legislative committees concerning the amendments; also previous judicial
and executive construction thereof. Statutes in pari materia will be looked at and amendments of procedural
statutes will be liberally construed.
Crawford45 summarises the position thus:
Of course amendments or amendatory statutes are subject to the rules and principles of construction applicable to
original enactments. For instance, the only legitimate recourse to construction is to ascertain the legislative
intention. In ascertaining this intent the court may not only examine the body of the statute, but its caption. Statutes
in pari materia may also be resorted to for assistance. Executive as well as judicial construction may likewise be of
assistance. And the evil sought to be remedied by the amendment may be considered as some indication of the
legislative intent.
In Morisetty Bhadraiah v Sales-tax Appellate Tribunal,46 the question before the Court was whether under Section
21 (6) of the Andhra Pradesh General Sales Tax Act, 1964, from which the words and penalty, if any were deleted
by a 1957 amendment, a penalty was required to be paid prior to preferring an appeal. It was argued by the
appellant that the effect of the amendment i.e. deletion of the aforementioned expression, was to remove the
obligation of paying the penalty before preferring an appeal. The Court agreed with this contention, and observed:
Although this Court is not at liberty to construe an Act of the Legislature by the motive which influenced the
Legislature, yet when the history of a provision of law tells the Court what the object of the Legislature was in
changing the provision, the Court has to see whether the terms of the section are such as would fairly carry out that
object and no other, and to read the section with a view to finding out what it means, and not with a view to
extending it to something that was expressly intended not to apply. The golden rule in such cases to follow is to first
find out what was the provision before the section was amended; secondly, what was the defect in the previous
Page 2 of 2
section; thirdly, what remedy the Legislature adopted to cure the defect and lastly to find out the true reason of the
remedy now adopted by the Legislature. If the Court views the section as amended from the abovesaid perspective,
there would be no difficulty in so construing the section which would suppress the mischief and advance the
remedy. Incidentally, it shall suppress subtle inventions and evasions for continuance of the mischief and would add
force and life to the cure and remedy according to the true intent of the Legislature.
In Ganpat Giri v Second Addl District Judge,47 the Code of Civil Procedure, 1908, prior to its amendment by the
Code of Civil Procedure (Amendment) Act, 1976, under sub-rules (1) and (3) of Rule 72, Order XXI laid down that
no holder of a decree in execution of a property is sold will, without the express permission of the Court, bid for or
purchase the property and that where a decree-holder purchases, by himself or through another person, without
such permission, the court may, on the application of the judgment-debtor or any other person whose interests are
affected by the sale, by order set aside the sale. Through the aforementioned Amendment, the sub-rules were
deleted. It was argued that the effect of deletion was to restrict the power of courts to order the sale to be set aside.
The Court agreed with the appellant, and observed:
Section 97 of the amending Act shows that it deals with the effect of the amending Act on the entire Code; both the
main part of the Code consisting of sections and the first schedule to the Code which contains orders and
rules...under such circumstances, the Allahabad High Court put the interpretation that any local amendment which
is not modified or amended by the amending Act shall remain operative. However, their view was reversed by the
Supreme Court and it was held that all the local amendments shall cease to operate on the commencement of the
amending Act irrespective of the fact whether such provision is touched by the amending Act or not.
Notwithstanding that the corresponding provision in the Civil Procedure Code was not amended by the Amending
Act 1976, all local amendments by a state legislature or a court which are inconsistent with the amended Code
stood repealed.
In Sone Valley Portland Cement Co v General Mining Syndicate,48 the Court relied on Section 10-A, inserted into
the Bihar Land Reforms Act, 1950, by an amendment in 1964-65, to decide whether the unamended Act intended
to have the effect of divesting a lessee of his interests in a lease of mines or minerals, comprised in the estate or
tenure or part thereof which subsisted immediately before the vesting of a notified estate or tenure, or not. The
Court held that the inclusion of Section 10-A, which divested the lessee of his interest, was indicative of the fact that
the unamended Act did not intend to do the same. The Court observed:
Sometimes light may be thrown upon the meaning of an Act by taking into consideration parliamentary expositions
as revealed by the later Act which amends the earlier one to clear up any doubt or ambiguity. This principle has to
be followed where, as in the instant case, a particular construction of the earlier Act will render the later
incorporated Act ineffectual, or otiose or inept.
For more illustrations on the amending statutes, see Table 3.3
42 . Saleh Mohd v Khanmull AIR 1959 Mys 102, p 106.
43 . Ganpat v Shashikant (1978) 2 SCC 573 [LNIND 1978 SC 66].
45 . Ibid, Vol I, pp 616-17.
46 . (1964) 1 Andh WR 361.
47 . AIR 1986 SC 589 [LNIND 1986 SC 2], (1986) 1 SCC 615 [LNIND 1986 SC 2], (1986) All LJ 271, 1986 UJ 287 (SC),
1986 All WC 181, (1986) Cur Civ LJ 189 (SC), (1986) 12 All LR 165 [LNIND 1986 SC 2], (1986) 1 SCJ 152 [LNIND
1986 SC 2], 1986 BBCJ 35 (SC), (1986) 2 All Rent Cas 80, (1986) 99 Mad LW 481 [LNIND 1986 SC 2].
48 . AIR 1976 SC 2520 [LNIND 1976 SC 298].
End of Document
Cautious Interpretation
NS Bindra
Cautious Interpretation
It is a well-recognised canon of interpretation of amendments intended to bring about desirable change in the law or
to overcome interpretations put on the law by courts that the law existing before the amendment was made must be
considered to continue to be good law, except insofar as amendment makes it clear on the face of it that a change
in the law as it stood before the amendment was intended.49 It may be useful to inquire, as to whether the state of
law at the time when the amending Act was passed, and the object which the legislature had in introducing the
section could throw any light upon its interpretation. This is a permissible matter to look into for the purpose of
construing a statute, provided it is taken with the warning that we must not strain the language of statute unduly by
attempting to bring it within the supposed intention of the legislature.50
49 . Tirupatirayalu v Venkata Subba Rao AIR 1950 Mad 287 [LNIND 1949 MAD 121]: where there have been decided
cases before an Act is amended, if the amendment does not expressly show that the law as interpreted by the
decisions is altered, the rule laid down by the decisions is to be adhered to; Harnandan Rai v Baliram Prasad AIR 1931
Pat 1.
50 . Hussen (Mhd) v Jamini Nath AIR 1938 Cal 97, p 101.
End of Document
Alteration in Law
NS Bindra
Alteration in Law
Ordinarily, by an amendment the legislature must be taken to have intended a change in the law, but it does not
necessarily follow that such is the intendment in every case.51 The legislature may, at any time, in exercise of the
plenary power conferred on it by Articles 245 and 246 of the Constitution render judicial decision ineffective by
enacting a valid law. The legislature, however, cannot, by a bare declaration, without any further elaboration,
overrule, reverse, or set aside any judicial decision.52 There are, however, cases where the legislature departs
from the language previously used without intending to depart from the meaning. The prima facie rule of
construction is that where draftsman uses different words he presumably intended a different meaning. It is,
however, not an invariable rule that from variation of language variation of intention must necessarily be inferred.
Sometimes without there being any change of intention, legislative draftsman uses different language with a view to
improve the graces of the style and to avoid using the same words over and over again.53
Where amendments are used as legislative declarations of the object and intent of prior legislation, that is, to
interpret such legislation, they do not make change in the law as it stood previously.Whether an amendatory Act
adds something to or takes something from the original Act, so as to effect a change in the law, or is merely an
interpretation of the intent of the original Act, depends much on the time when and the circumstances under which,
the amendment is enacted.It is perfectly true that whenever an amended Act has to be applied subsequent to the
date of the amendment, the various unamended provisions of the Act have to be read along with the amended
provisions as though they are part of it.54 This is for the purpose of determining the meaning of any particular
provision of the amended Act. However, this is not the same thing as saying that the amendment must itself be
taken to have been in existence as from the date of the earlier Act. That would be imputing to the amendment
retrospective operation which could only be done if such retrospective operation is given by the amending Act either
expressly or by necessary implication.55
Sutherland observes:
Because it is defined as an Act that changes an existing statute, the court have declared that the mere fact that the
legislature enacts an amendment indicates that it thereby intended to change the original Act by creating a new
right or withdrawing an existing one. Therefore, any material change in the language of the original Act is presumed
to indicate a change in legal rights. The legislature is presumed to know the prior construction of terms in the
original Act, and an amendment substituting new terms or phrase for one previously construed indicates that the
judicial or executive construction of the former terms or phrase did not correspond with the legislative intent and a
different interpretation should be given to the new term or phrase. Thus, in interpreting and amendatory Act there is
a presumption of change in legal rights. This is a rule peculiar to amendments and other Acts purporting to change
the existing statutory law...And as to changing statutory law there is a presumption against the implied repeal or
amendment of any existing statutory prevision. In accord with this conservative attitude, an amendatory Act is not to
be construed to change the original Act or section further than expressly declared or necessarily implied.56
Crawford57 says:
Since an amendment becomes a part of the original statute, both must be construed together as if they constituted
one enactment, even if the amendment occurs merely by implication. Their provisions should be harmonised, if
possible, but where there is irreconcilable conflict, the provisions of the amendment must prevail over those of the
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Alteration in Law
original statute on the theory that the former constitutes the last expression of the will of the legislature. The
amended statute should also be construed as if it had been originally passed in its amended form, since the
amendment becomes a part of the original enactment. And words used in original statute should, at least, be
presumed to be used in the same sense in the new statute. Conversely, a change in the phraseology creates a
presumption that the legislature intended a change of meaning. Indeed, the mere fact that the legislature enacts an
amendment is of itself an indication of an intention, as a general rule, to alter the pre-existing law. A portion of an
amended statute, however, which has been left unchanged, is not affected by the amendment.58 And obviously, in
the absence of a contrary intention, an amendatory statute will not have a wider scope than the original statute, but
should be construed to have the same operation. For instance, where an Act purports to amend a particular section
of a general law, it is limited in its scope to the subject-matter of the section proposed to be amended. And as we
have already indicated the previous judicial construction becomes a part of the amended statute, where the terms
construed are retained in a subsequent amendment. In fact, it may be presumed that the legislature intended to
adopt the prior construction of the unamended portions. Moreover, in construing the amended statute, the court
should consider the change sought to be effected by the legislature. The amendatory Act should be construed in
relation to the conditions created by the amended Act as well as the objects and purpose of the Act itself as therein
defined. In short, regard must be had for the law as it was before being amended, and the amendatory Act should
be construed to repress the evils under the old law and to advance the remedy provided by the amendment. A
deliberate separation of the two parts of the old sectionapplying a restriction to one and not the otherindicates that a
change was intended. This is in accord with the presumption that a proviso refers only to the provision to which it is
attached.59
In Ukakhasia v State of Manipur,60 the Court was considering Section 116 of the Indian Penal Code, 1860, and laid
down that where there was no express provision made for the punishment of an abetment of an offence punishable
with imprisonment, the accused would be punished as provided in the section. Under Section 165-A, inserted by the
Criminal Law (Amendment) Act, 1952, the legislature provided for the punishment of abetment in bribery cases, and
abetment had been made a substantive offence. The Court held that even if two sets of provisions be deemed to be
co-existing and the result of this co-existence would be destructive of the object for which the new law was passed,
the earlier would be repealed by the later. Hence, the effect of Section 165-A was to ensure that abetment to
bribery could not be punished under Section 116.
In Sukhnandan Lal v Raj Kali,61 sub-clauses (c) and (d) were introduced in Section 9 (5) of the Uttar Pradesh
Encumbered Estate Act, 1934, by the amending Act of 1939. The amended Section 9 provided for an alternate
remedy for the creditor to get relief against non-applicant debtors. Under Section 13 of the Act, there could be a
discharge of a debt from a non-applicant debtor. It was argued that Section 13 of the Act ought to be interpreted in
light of the amendment, thus restricting the scope for discharge. The Court did not agree with this contention, and
held that the interpretation of Section 13 should not be dependent on the effect of the provisions of Section 9 (5) (c)
and (d). It ought to continue to bear the same interpretation which it would have borne without those provisions.
Amendment not to Incorporate Something Inconsistent with or Repugnant to Object of Act
In State v Ardeshir,62 the Court was considering the ambit of the expression premises occurring in Section 2 (m) of
the Factories (Amendment) Act, 1954. The Court held that guidance may be derived from the expression premises
or building occuring in Section 7 (1)(bb) of the Act. The Court observed that if premises under the Act were to mean
only buildings, it would be scarcely appropriate to use the expression premises or building in Section 7 (1)(bb). It
was further observed that by an amendment, the legislature would not incorporate something in the Act which
would be inconsistent with or repugnant to the object of the Act.
Amendment in Procedural and Substantive Provisions
As already observed the amending Act does not affect rights which have been vested or obligations which have
been defined before the amending Act came into operation, but no person has a vested right in the procedure of a
court and consequently an Act which merely regulates procedure governs all proceedings that are pending at the
time when the Act comes into operation provided that existing orders are not deprived of their finality and that the
application of the provisions does not work injustice. If the amending Act is a remedial one it should be construed as
widely as possible to give effect to the intention of the legislature in as many cases as possible insofar as this can
be done without injustice to the parties.63 Thus where an amending Act lays down a rule of procedure, it ordinarily
affects pending actions. Hence, where a document which is inadmissible under the law at the time the suit is
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Alteration in Law
pending in the trial court is made admissible by an amending Act when the appeal is pending, the appellate court
can admit the document.64
In Shiabuddinsah Mohiuddinsah Akki v Godag Betgiri Municipal Borough,65 the Court observed that in every case
the language of the amending statute had to be examined to find out whether the legislature clearly intended even
pending proceedings to be affected by an amending statute. Section 3 of the Bombay Municipal Boroughs
(Amendment) Act, 1954, provided that all elections to the office of the President or Vice-President, held on or after
the said date and before the coming into force of this Act, shall be deemed to be valid, and hence the Court held
that the amendment was clearly intended by the legislature to apply to all cases of election of President and Vice-
president, whether or not the matter had been taken to court. In BG Chavan v State of Bombay,66 reading Section
23 (1) of the original Bombay Municipal Boroughs Act, 1925, as amended in 1954, the position was that the
councillors elected at a general election under the Act for three years would now hold office for a term of four years.
The Court held that it would not be true to say that this is giving retrospective effect to the amendment. In the
opinion of the Court, the amendment dealt with a future event, namely, the election of the councillors, and it was
this future event that was altered or modified by the amendment.
51 . Midnapore Zamindary Co v Secretary of State AIR 1938 Cal 804, p 811: Introduction of new words into an existing
section may alter meaning of the words already there; but no such alteration can result unless: (a) the requirements of
the English language demand it; or (b) those requirements permit it and the section demands it; Lord Howard de
Walden v IRC [1948] 2 All ER 825, p 830, per Lord Uthwatt.
52 . Hari Singh v Military Estate Officer [1973] 1 SCR 515 [LNIND 1972 SC 281], AIR 1972 SC 2205 [LNIND 1972 SC
281]; Govt of Andhra Pradesh v Hindustan Machine Tools Ltd [1975] SCR Supp 394, AIR 1975 SC 2037 [LNIND 1975
SC 192]; IN Saxena v State of Madhya Pradesh [1976] 2 SCR 237, AIR 1976 SC 2250 [LNIND 1976 SC 25]; Misrilal
Jain v State of Orissa AIR 1977 SC 1686 [LNIND 1977 SC 202]; Utkal Constructions & Joinery Pvt Ltd v State of
Orissa AIR 1987 SC 2310 [LNIND 1987 SC 669], (1987) (5) JT 1 (SC), (1987) Raj LR 652, (1987) 8 IJ Rep 461.
53 . Grison Knitting Works v Laxmi Commercial Bank Ltd AIR 1960 Punj 98, p 107, per Tek Chand J.
54 . Shambhu Dayal v State of Uttar Pradesh (1979) All LJ 95 (SC).
55 . Ram Narain v Simla Banking and industrial Co Ltd [1956] SCR 603 [LNIND 1956 SC 48], pp 613-14, per
Jagannadhadas J; Thakorelal v Gujarat Revenue Tribunal AIR 1964 Guj 183 [LNIND 1963 GUJ 66], p 190, per
Bhagwati J.
57 . Crawford, Statutory Construction, third edn, vol III, pp 617-19.
58 . Ramlal v State of Uttar Pradesh (1978) All LJ 1197.
59 . United States v Mcclure 83 L Ed 296, p 299, 305 SC 472, per Black J.
60 . AIR 1956 Mani 9; Maxwell, Interpretation of Statutes, tenth edn, p 168.
61 . AIR 1954 All 463.
63 . Bigan Singh v Zaffer Hussain AIR 1940 Pat 567.
64 . Sohan Lal v Atal Nalu AIR 1933 All 846; see also Banwari Lal v Gopi Nath AIR 1931 All 411: it is not correct to apply
an Act which is passed subsequent to the trial of the case to the procedure in the case; no recital in an amending
statute, however, can avoid that which has been declared by the court to have been done rightly under the law; Balaji
Singh v Gangamma AIR 1927 Mad 85 [LNIND 1926 MAD 247]-86.
65 . AIR 1955 SC 314 [LNIND 1955 SC 13].
66 . AIR 1955 Bom 334 [LNIND 1955 BOM 12]: it was, however, held that no question could arise of the term of office of
the President being extended by reason of the extension of the duration of the municipality as the second proviso to s
19 as amended by Act 35 of 1954 did not apply to this case.
Page 4 of 4
Alteration in Law
End of Document
When an Amendment Takes Effect
NS Bindra
The amendment Act, though it lays down that it would be decided to have been always in force since the date of the
enactment of the original Act, does not invalidate a decree already passed and set aside in appeal. The amendment
Act in such a case is to be given retrospective effect but only after its enforcement as before its enforcement there
could not possibly be any question of giving retrospective effect to it.67 Where the Court Fees Act was amended so
as to enhance the fee payable on a review petition between the date of the suit and the petition for review, it was
held that the amendment did not affect the court fee payable on the review petition.68 And when the letters patent
were amended curtailing the right of appeal after the suit had been filed, the amended provisions were held to be
not applicable to such a case.69
In Corpus Juris,70 the following general observations are made on this topic:
In accordance with the rule generally applicable to legislative enactments, unless required in express terms, or by
clear implication, an amendatory Act will be construed prospectively and not retrospectively and the parts not
altered are considered as having been the law from the time they were enacted. So also where a statute, or a
portion thereof, is amended by setting forth the amended section in full, the provisions of the original statute, that
are repealed are to be considered as having been the law from the time they were first enacted, and the new
provisions or the changed provisions are to be understood as enacted at the time the amended Act takes effect not
to have any retrospective operation. Proceedings instituted, orders made, and judgments rendered, before the
passage of amendment will, therefore, not be affected by it, but will continue to be governed by the original statute.
However, in accordance with the rule applicable to statutes generally, amendments which are purely remedial
operate retrospectively, and those which merely cause changes in the adjective or procedural law apply to all cases
pending and subsequent to their enactment, whether the cause accrued prior to or subsequent to the time the
change became effective unless there is a saving clause as to existing litigation, or accrued causes of action. But
amendments causing changes in the adjective or procedural law will not operate retrospectively so as to affect a
proceeding entirely closed before the amendment became effective.
Sutherland observes:71
Since an amendment changes an existing statute, the general rule of statutory interpretation that the surrounding
circumstances are to be considered is particularly applicable to the interpretation of amendatory Acts. The original
Act or section and conditions thereunder must be looked at. Judicial and executive interpretation of original Act
especially must be considered. The court will determine what defects existed in the original Act, which defects the
legislature intended to ease, and then construe the amendment so as to reduce or eliminate the defect intended to
be remedied...In determining the effect of an amendatory Act on transactions and events completed prior to its
enactment, it is necessary to distinguish between provisions added to the original Act by the amendment, and
provisions of the original Act repealed by the amendment, and provisions of the original Act re-enacted
thereby...However, as in the case of the original Acts, in the absence of a saving clause or statute or some other
clear indication that legislative intent is to the contrary, provisions added by the amendment that affect procedural
rightslegal remediesare construed to apply to all cases pending at the time of its enactment and all those
commenced subsequent thereto, whether the substantive rights sought to be enforced thereby accrued prior or
subsequent to the amendment, unless a vested right would thereby be impaired. But the new provisions will not
affect a proceeding entirely closed before the amendment became effective. In accordance with the rule applicable
to repealing Acts, the general rule against the retrospective construction of statutes does not apply to those
Page 2 of 2
provisions of the original Act repealed by the amendment, whether affecting substantive or procedural rights. In the
absence of a saving clause or statute, or some other clear indication that the legislative intent is to the contrary, all
rights dependent on the repealed provisions of the original Act which had not vested or been prosecuted to
completion prior to the enactment of the amendment are destroyed.
In Salem (Mhd) v Umaji,72 the Court held that the amendment to Section 9 of the Hyderabad Money Lenders Act
affected substantive rights and the provisions relating to dismissal of suits applied to transaction entered into after
the amendment of Section 9 and not before. Similarly, in Collector v Habibullah Din,73 The amendment in the
Jammu and Kashmir Land Requisition Act introduced by Act 34 of 1960 in regard to the rate of interest is
prospective in operation and would not apply to the proceedings resulting in an award given before coming into
force of the aforesaid amendment. In Fazluddin v Zubaida Khanam,74 the Calcutta High Court held that where
during the pendency of a suit for ejectment and an application under Section 17 (3) of the West Bengal Premises
Tenancy Act, 1956, the aforementioned provision was amended, the proceedings ought to be governed by the
unamended Section 17 (3) and not by the new amending Act.
67 . District Board Muzaffarpur v Upper India Sugar Mills Ltd AIR 1957 All 527 [LNIND 1957 ALL 33], p 535, per Desai J.
68 . Nandi Ram v Jogendra Chandra AIR 1924 Cal 881, p 884.
69 . Sadar Ali v Doiluddin AIR 1928 Cal 640; converse case: Gosta Behari v Nawab of Murshidabad AIR 1932 Cal 207.
70 . Corpus Juris, volume 59, pp 1181-84.
71 . Sutherland, Statutory Construction, third edn, vol I, pp 416-17.
72 . AIR 1955 Hyd113 .
73 . AIR 1967 J & K 44, per Ali J.
74 . (1962) 66 CWN 849.
End of Document
Effect of Amendment on Judicial Decisions
NS Bindra
Effect of Amendment on Judicial Decisions
A change in law can affect the decision of a court only to the extent that the decision becomes contrary to law, but
where the change in law does not touch the question already decided by the competent court, the judicial decision
is not affected by such amendment. The approval of legislature of a particular judicial construction put on the
provisions of an Act on account of its making no alteration in those provisions, is presumed only when there had
been a consistent series of cases putting the same construction on the same provisions.75 A full bench of the
Allahabad High Court observed as follows:76
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 has been judicially put on them under the repealed Act because the
legislature is presumed to be aware of the construction which the courts have put up on these words.
75 . Purshottamdas Dalmia v State of West Bengal AIR 1961 SC 1589 [LNIND 1961 SC 188].
76 . Talib Hussain v First Addl District Judge AIR 1986 All 196 [LNIND 1985 ALL 296], (1986) All LJ 845, (1985) All WC
1001, (1986) 12 All LR 113, 1986 All CJ 1, (1986) UPLJ 116, (1986) 1 All Rent Cas1.
End of Document
Effect of Invalidity of Amendment on Original Act
NS Bindra
Effect of Invalidity of Amendment on Original Act
In Truax v Corrigan, the majority of the US Supreme Court observed:77
When an amendatory exception to a statute proves unconstitutional, the original statute stands wholly unaffected by
it.
77 . (1921) 257 U. S. 312.
End of Document
Codifying Statutes
NS Bindra
Codifying Statutes
Codifying Acts are Acts passed to codify the existing law. That is not merely to declare the law upon some particular
point, but to declare in the form of a Code the whole of the law upon some particular subject.78
In Corpus Juris,79 it is stated:
The purpose of a revision or codification of law is to make them as certain as practicable and to enable every citizen
readily to find where they are and what they declare, by publishing them in a systematic, condensed, but clear and
comprehensive form. A revision or codification of statutes is something more than a restatement of the substance
thereof in different language. It implies a re-examination of them, and is applied to a restatement of the law in a
corrected and improved form, which restatement may be with or without material change. Revision or codification of
laws may be effected by the omission of some laws, by changing words or phrases for the purpose of harmony or
brevity without in fact changing the meaning, or by the incorporation of new and material matter, and may operate
to change the existing law. The code or revision is intended to take place of law as previously formulated, and to
include all the statute law of the state of a general or permanent nature up to the date of its adoption, unless it is
otherwise provided in the code or revision, or in the Act of the legislature adopting it; and it must be considered and
treated as comprising all the statute law on the subjects indicated by the various titles in the code or revision. If the
system is defective in any of its parts, the remedy is to be found in legislative amendment...A mere change of
phraseology, or punctuation, or the addition or omission of words in the revision or codification of statutes, does not
necessarily change the operation or effect thereof, and will not be deemed to do so unless the intent to make such
change is clear and unmistakable. Usually a revision of statutes simply reiterates the formal declaration of
legislative will. No presumption arises from changes of this character that the revisers or the legislature in adopting
the revision intended to change the existing law; but the presumption is to the contrary, unless an intent to change it
clearly appears. The reasons assigned are that the changes made by the revision may usually be accounted for by
the desire to render the provisions more concise and simple, and to bring the laws into some system and uniformity.
Nevertheless, it is an equally well-recognised doctrine that changes of the character under consideration appearing
in a code or revision may have the effect of changing the existing law; and must be given that effect where the
legislative intent to make a change appears clearly and unmistakably, as where no effect can be given to the new
language otherwise, or where the language used in the revision cannot possibly bear the same construction as the
revised Act. And where there is a material change between the original Act and the provisions thereof in the code or
revision, this difference must be given effect, even though not noted by the revisers in an explanatory note. And the
mere intention of the legislative body to compile existing laws without altering them does not require the courts to
give to a particular section a construction in opposition to the positive provisions thereof in order to conform to the
pre-existing statute.
Crawford has put the matter thus:80
The object of a revision or codification...is to clarify existing statute law and make it easily found. Consequently it is
really more than a mere restatement. A re-examination of the existing statute law is necessarily implied. But the
restatement may be in the original language of the statute. Or words and phrases may be altered, new matter
incorporated, and statutes even omitted from the revision or codification. And after the revision or codification has
been adopted, it becomes the reservoir of all the statute law on the subjects indicated by various titles; the revision
being a substitute for the displacing the former law. As a result, any errors must be corrected by legislative
amendments after the revision or code has been enacted into law...Not only may the statutes composing the
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Codifying Statutes
codification be relocated but their language may also be changed. Generally, however, the revision is simply a re-
statement of existing statute law, either in the same or in substantially the same language. Where this is true, the
old statutes are continued without any change in their meaning. But in many instances, the language of existing
statutes are substantially altered; words may be added or omitted; phraseology and punctuation changed. In such
instances, however, there is a presumption that the legislature did not intend to change the meaning of the statute,
unless the intent to do so is clearly apparent. Where it is the intent of the legislature to make a change in the
statutes meaning it must be given effect...A code is simply a part of the statutory law and has no higher standing or
sanctity than an ordinary statute. Like many other legislative enactments, a code or revision should be subjected to
a liberal construction in order to promote the objects for which it was enactedto clarify existing statutesalthough the
liberality of construction should not be extended so far as to annul any of the codes provisions or to defeat the
intention of the legislature as revealed in any particular section or portion thereof...Of course, the provisions of the
revision of code should first be examined in order to ascertain their meaning, but where the language is ambiguous
and uncertain, the original statutes, as well as those in pari materia may be resorted to for assistance in seeking the
legislative intent...Accordingly, where there is ambiguity in the revised statutes, it should be construed as
expressing the law as it was prior to the revision, unless the court finds a clear intention to alter the old law.
Furthermore, the judicial construction of a statute later incorporated in a codification or revision may be referred to
for assistance, since the courts interpretation of the law under such circumstances, by adoption, becomes a part of
the code or revision. Even a change in the language of phraseology of a statute included in a codification or revision
will not, as a general rule, alter the law, unless the change be so material or radical as to indicate an intention on
the part of the legislature to modify the law, or unless the intention to change clearly appears from the language of
the revised statute, and specially when considered in connection with the subject-matter and the legislative history.
Sutherland has opined:81
A statute incorporated into a code is presumed to be incorporated without change even though it is re-worded and
re-phrased and in the organisation of the code its original sections are separated. Where, however, the legislative
intent is clear that a change in the law is intended, the new provision prevails. In case of ambiguity it is permissible
to resort to the prior legislative history of the Act, the form and language of the prior statute, prior interpretation and
all matters in pari materia in order to arrive at the true meaning of the Codes provision.
The British Parliament passed the Bills of Exchange Act, 1882, which was an Act to codify the law relating to bills of
exchange, cheques and promissory notes. In Bank of England v Vagliano,82 Lord Herschell in discussing the
opinions of the court of appeal, said:
The purpose of such a statute surely was that on any point specifically dealt with by it, the law should be
ascertained by interpreting the language used instead of, as before, by roaming over a vast number of authorities in
order to discover what the law was, extracting it by a minute critical examination of the prior decisions, dependent
upon a knowledge of the exact effect even of an obsolete proceeding such as a demurrer to evidence. I am, of
course, far from asserting that recourse may never be had to the previous state of the law for the purpose of aiding
in the construction of the provisions of the code. If, for example, a provision be of doubtful import, such resort would
be perfectly legitimate. Or, again, if in a code of the law of negotiable instruments words be found which have
previously acquired a technical meaning, or been used in a sense other than their ordinary one, in relation to such
instruments, the same interpretation might well be put upon them in the Code. I give these as examples merely;
they, of course, do not exhaust the category. What, however, I am venturing to insist upon, is that the first step
taken should be to interpret the language of the statute and that an appeal to earlier decisions can only be justified
on some special ground.
Lord Halsbury in the same case observed:83
It seems to me that, construing the statute by adding to it words which are neither ground therein nor for which
authority could be found in the language of the statute itself, is to sin against one of the most familiar rules of
construction, and I am wholly unable to adopt the view that, where a statute is expressly said to codify the law, you
are at liberty to go outside the code so created, because before the existence of that code another law prevailed.
In Nilmani Kar v Raja Sati Prasad Garga Bahadur,84 the Court was considering Section 52 (6) of the Bengal
Tenancy Act, which laid down that rent for tenancy would be paid in accordance with measurements made at the
time when the tenancy originated. It was argued that the Court ought to look at the history of the provision, and the
Page 3 of 4
Codifying Statutes
state of the Act prior to the inclusion of the provision, to ascertain its true meaning. The Court rejected this
contention, and as regards the difference between interpretation of codifying and amending statutes, observed as
follows:
In the case of a codifying Statute, there may sometimes be a presumption that a particular provision was intended
to be a statement of the existing law rather than a substituted enactment, and from this point of view an enquiry into
the pre-existing law may conceivably be useful where the language of the codifying Statute is open to doubt. In the
case of an amending Statute, on the other hand, the manifest intention is to alter the pre-existing law, and
speculation that the law was intended to be altered only in a certain repack or to a particular extent, must usually
rest on a slender basis.
In Chand Dhawan v Jawaharlal Dhawan,85 the Court was considering whether the Hindu Marriage Act, 1955, could
be resorted to interpret the obligations of maintenance under the Hindu Adoptions and Maintenance Act, 1956. The
controversy arose because the wife claimed maintenance when a final decree of dissolution or separation had not
yet been passed. It was argued that the expression any decree occurring in Section 25 of the 1955 Act, which
imposed an obligation on the husband to pay maintenance to the wife, ought to be used to construe Section 18 of
the 1956 Act to mean that the husband ought to pay maintenance on the passing of any decree during divorce
proceedings. The Court rejected this contention, and held:
Where the statute expressly codifies the law, the court as a general rule, is not at liberty to go outside the law so
created, just on the basis that before its enactment another law prevailed. Now the other law in the context which
prevailed prior to that was the unmodified Hindu law on the subject. Prior to the year1955 or 1956 maintenance
could be claimed by a Hindu wife through court intervention and with the aid of the case law developed. Now with
effect from December 21, 1956, the Hindu Adoptions and Maintenance Act is in force and that too in a codified
form. Its preamble too suggests that it is an Act to amend and codify the law relating to adoptions and maintenance
among Hindus...The court is not at liberty to grant relief of maintenance simplicitor obtainable under one Act in
proceedings under the other. As is evident, both the statutes are codified as such and are clear on their subjects
and by liberality of interpretation inter-changeability cannot be permitted so as to destroy the distinction on the
subject of maintenance.
In Board of Trustees v M/S Sriyanesh Knitters,86 it was argued that the Major Port Trusts Act, 1963, was not a
complete code in itself as regards the contractual relations between wharfingers and shippers, and that the right of
general lien under Section 171 of the Indian Contract Act, 1872, would be available to wharfingers even after the
enactment of the 1963 Act. The Court agreed with this contention, and held:
The preamble of the Act does not show that it is a codifying Act so as to exclude the applicability of other laws of
the land. Even if it is a codifying Act unless a contrary intention appears it is presumed not to be intended to change
the law...Furthermore where codifying statute is silent on a point then it is permissible to look at other laws.
A court can order the deletion of irrelevant, scandalous or defamatory material found in a Will provided that such
expunction does not affect the bequest made by the testator. The fact that the Succession Act requires the probate
court to only pronounce upon the authenticity of the Will in no way obliterates the inherent power of the court to
provide equitable relief87.
In Radhika Narang v Kuldeep Narang,88 the Delhi High Court was required to consider whether subsequent to the
enactment of the Hindu Adoption and Maintenance Act, 1956 a wife could activate her right under customary Hindu
law and seek maintenance from the coparcenary property. The division bench of the Delhi High Court reversed the
decision of the Single Judge and ruled that the Hindu Adoption and Maintenance Act that was not exhaustive of the
law relating to maintenance amongst Hindus. Since the Act does not make any provision for the maintenance of a
coparceners wife from the coparcenary property; hence this right under Hindu Customary Law survives even after
the enactment of the statute.
78 . Craies, Statute Law, Fourth edn, p 61; Tiruvengada v Tripura Sundari (1926) ILR 49 Mad 728, AIR 1926 Mad 906
[LNIND 1926 MAD 55], p 908.
Page 4 of 4
Codifying Statutes
79 . Corpus Juris, Vol 59, p 887.
81 . Sutherland, Statutory Construction,vol 3, third edn, p 255.
82 . [1891] AC 107; Wilkinson v Wilkinson (1879-80) ILR 4 Bom 843, AIR 1923 Bom 321, p 351 ; Gopal Naidu v King-
Emperor (1923) ILR 46 Mad 605, AIR 1923 Mad 523, p 525.
83 . Ibid., p. 120.
84 . 61 Ind Cas 82 (1920).
85 . (1993) 3 SCC 406 [LNIND 1993 SC 485].
86 . (1999) 7 SCC 359 [LNIND 1999 SC 1590], AIR 1999 SC 2947 [LNIND 1999 SC 1590], This judgment was relied upon
in Commissioner of Wealth Tax., v Zainab Noorul Sayeed 2003 (4) ALD 758, 2003 (2) ALT 610, (2003) 184 CTR (AP)
596 [LNINDORD 2003 AP 35], and Ganesh Prasad Agarwal v Unknown decided on 18th Jan, 2010
http://www.indiankanoon.org/doc/1280155.
87 .HPS Chawla vs NPS Chawla AIR 2006 Del 53 [LNIND 2005 DEL 657].
88 . 156 (2009) DLT637.
End of Document
Consolidating Statutes
NS Bindra
Consolidation is the combination in a single measure of all the statutes relating to a given subject-matter and is
distinct from codification in that the latter systematises case-law as well as statutes.89 According to Craies on
Statute Law,90 consolidation is the reduction into a systematic form of the whole of the statute law relating to a
given subject, as illustrated or explained by judicial decisions. If an Act is instituted to consolidate previous statutes,
the courts may lean to a presumption that it is not intended to alter the law, and may solve doubtful points by aid of
such presumption of intention rejecting the literal construction.91
Craies further says:92
In construing a consolidation prior statutes repealed, but reproduced in substance, are regarded as in pari materia,
and judicial decisions on the repealed statute are treated as applicable to substantially identical provisions of the
repealing Act...The effect of most of these Acts may be described as purely literary. Insofar as the Act is purely a
consolidation Act, although it may repeal the reproduced enactments, the repeal is merely for the purpose of
rearrangement, and there is no moment at which the substance of the older enactments ceases to be in force,
although it is true that its ancient form was destroyed by the process of reproduction and repeal. The consolidation
merely places together in a later volume of the Statute Book enactments previously scattered over many volumes.
But it must not be forgotten that it is almost inevitable that in the process of consolidation the re-arrangement of the
former Acts and the modernisation of the language should, to some extent, alter the law. And often a consolidation
Act is not a statute merely collecting into one chapter any original or principal Act with subsequent amendments and
codifications, but involves the co-ordination and simplification of former enactments.
Odgers opines:
Consolidating Acts are Acts to comprehend in one statute the provisions contained in a number of statutes and
which codify the law on some subject as far as they go.93
Lord Watson discounted the proposition that, in dealing with a consolidating statute, each enactment must be
traced to its original source, and when that is discovered must be construed according to the state of circumstances
which existed when it first became law. In Administrator-General of Bengal v Prem Lal Mullick,94 it was observed:
The proposition has neither reason nor authority to recommend it. The very object of consolidation is to collect the
statutory law bearing upon a particular subject and to bring it down to-date, in order that it may form a useful code
applicable to the circumstances existing at the time when the consolidating Act is passed.
89 . Paton, Jurisprudence, p 186: the object of consolidating Acts is to consolidate in one Act the provisions contained in a
number of statutes; they may be regarded as Acts codifying the statute law upon a subject; Craies, Statute Law, fourth
edn, p 61.
90 . Craies, Statute Law, fourth edn, p 305.

Page 2 of 2
91 . Maxwell, Interpretation of Statutes, twelfth edn, pp 22-25; IRC v Hinchy [1960] 1 All ER 505, p 512 (HL).
93 . Odgers, Construction of Deeds and Statute, Second edn, p. 226-27:

By these Acts a number of prior statutes are usually repealed but reproduced in substances, it being, as we shall see, a
presumption that it is not the intention of the legislature to alter the law by a consolidating Act but merely to collect it
and fit it together in one Act, unless an intention to alter it plainly appears.
F Swan v Pure Ice Co [1935] 2 KB 265, p 274.
94 . 22 IA 116.
End of Document
Construction of Consolidating Statutes
NS Bindra
When the consolidating Act re-enacts in .an orderly form the various statutes embodying the law on the subject, it is
not necessary or proper to resort to, or
consider, the earlier legislation on the subject.1 Where words or expressions in a statute are plainly taken from
earlier statute in pari materia which have received judicial interpretation, it must be assumed that parliament was
aware of such interpretation and intended to be followed in later enactments.
Distinction between Codification and Consolidating Statutes
The distinction to be drawn between statutes which codify and those which consolidate the law is that in construing
the latter there is a presumption that the law was not intended to be altered so that regard may be had to decisions
on the construction of the earlier enactments which are consolidated, even if the words used are not identical; but
this presumption must yield to plain words to the contrary, where statutes are replaced by others which consolidate
them with amendments. However, the same rules do not apply. Where earlier legislation has been profoundly
altered by amending legislation before consolidation or a provision in an earlier statute is replaced by a provision in
different terms in a later one, decisions on the earlier provision cannot affect the construction of the later, and the
earlier statute cannot generally be resorted to for the purpose of bringing within the purview of the new statute
anything omitted therefrom. Where a consolidating statute re-enacts sections that have come into existence at
different previous dates, the statute must be construed on the same principles as one which enacts the provisions
in question for the first time; but, if there is inconsistency in the section of a consolidating statute, it may be proper
to look at the respective dates of their first enactment to explain the inconsistency. Where provisions of a
consolidating Act have their origin in different legislation, the same words may bear different meanings in different
provisions.2
According to Craies, Statute Law3 following consequences ensue in relation to the interpretation of a consolidating
statute:
(i) The courts will lean against any presumption that such an Act was intended to alter the common law.4
(ii) Decisions on the older enactments are usually accepted as conclusive in the construction of the substituted
section in the later Act, even, it would seem, although the words would, if used for the first time in the
substituted section of the later Act, presumably bear another sense.5
(iii) statutes not expressly repealed continue in force without modification, so far as stated in the provision last
set forth.
Amending and Consolidating Statutes
The words consolidate and amend often occur in statutes repealing and re-enacting provisions which
have been there before its enactment. These are generally used when the experiences gathered by
the working of a statute, the interpretation placed on the statute by judicial decision, the lacuna and
defects in the statutes, which have been discovered in the course of years, have to be altered and
amended and put in clearer form.6
Page 2 of 3
The law relating to legal practitioners came up for consideration before a bench seven judges of the
Allahabad High Court in Shantanand v Basudevanand,7 wherein Niamatullah J. observed:
Act 18 of 1879 (Legal Practitioners Act) consolidated and defined all powers of a disciplinary character
which it was intended the High Court should exercise over legal practitioners. The object of the Act,
noted in the very first line is to consolidate and amend the law relating to legal practitioners. The
preamble recites the expediency to amend and consolidate such law. It should be noted that it does
not merely consolidate pre-existing law, but also amends it, which taken with consolidation of it implies
both addition to and derogation from the pre-existing law. It follows that it is complete code in itself as
regards the subject it deals with.
In Mercury Press v Ameen Shacoor,8 the court considered Section 70 (2)(b) of the Karnataka Rent
Act, 1999, and held that the moment the rent control law ceased to apply to a premises, the landlord
became entitled to sue for possession, or for the eviction of the tenant under general law. Though the
old Act did not confer any rights on a landlord but only restricted the absolute right of the landlord
under the provisions of the Transfer of Property Act, 1882, if an order of eviction had already been
passed under the old Act, then the right to evict the tenant had been acquired by the landlord and a
corresponding obligation or liability had been incurred by the tenant to vacate the premises or be
evicted from the premises under the order of eviction.9
It was alternatively argued by the petitioners that since Section 70 (2) (c) of the new Act mandated that
all other cases and proceedings pending in respect of premises to which this Act does not apply shall
stand abated it would mean where a revision proceedings, is pending, not only the revision but also the
order against which the revision is filed would stand abated. To further this contention counsel relied on
the Supreme Court judgment holding the same under a Consolidating Act.
Disagreeing with the said line of argument, the court observed:
(i) There is a marked difference in regard to interpretation of consolidating statutes, codifying statutes
and statutes replacing an existing law.10
(ii) If the intention of the Legislature was to abate even the orders from which revisions arose, the Legislature
would have used the words any proceeding pending, either before the Court of first instance or in revision,
in respect of a premises to which this Act does not apply, shall stand abated as from the date of
commencement of the Act.11
1 . Williams v Permanent Trustee Co of New South Wales [1906] AC 249, p 252, Rex v Abrahams [904] 2 KB 859, p 863;
Taylor v Corpn of Oldham 4 Ch D 395, p 405; Bennett v Minister for Public Works (NSW) 7CLR 372, p 379.
2 . Halsburys Law of England, fourth edn, vol 44, para 893, p 546; Maybury v Plauman 16 CLR 468, p 479.
3 . Craies, Statute Law, fourth edn, pp 306-07.
4 . IRC v Hinchy [1960] 1 All ER 505, p 512 (HL).
5 . O Toole v Scoott [1965] 2 All ER 240, pp 246-47 (PC).
6 . KP Condayi v Sales-tax Officer AIR 1967 Ker 47.
7 . AIR 1930 All 225 [LNIND 1930 ALL 3], p 247, (1930) ILR 52 All 619; followed in Banney Khan v Chief Inspector of
Stamps (1976) All LR 482.
8 . 2003 (3) Karlj 50.
9 . Ibid, para 20
10 . Para 27
Page 3 of 3
11 . Ibid.
End of Document
Enabling Statutes
NS Bindra
Enabling Statutes
Craies12 has observed that many statutes are passed to enable something to be done which was previously
forbidden by law, with or without prescribing the way in which it is to be done. Such statues are passed for a variety
of purposes. In order to discuss the rules which regulate the effect of a statute of this class, we may conveniently
consider the question under the following heads:
(i) Statutes which prescribe or regulate the way in which something is to be done.
(ii) Statutes which grant to private individuals powers for carrying out some public work.
(iii) Statutes which enable bye-laws and rules to be made.
(iv) Statutes which empower the crown to do something, not comprises within the prerogative.
(v) As respects enactments falling under heads (i)-(iv) the question may also arise whether the enactment is
permissive or obligatory.
Craies opined:13
One of the first principles of law with regard to the effect of an enabling Act is that the legislature enables something
to be done, it gives powers at the same time, by necessary implication to do everything which is indispensable for
the purpose of carrying out the purpose in view. It is also an established rule of construction that when a negative
condition in the shape of non-existence of a certain fact is prescribed as an essential prerequisite to a particular
legal result, the condition is deemed to be satisfied if the existence of the fact has been rendered impossible by
circumstances.14
Crawford observed:15
As a general rule, in the interpretation of statutes, the mention of one thing implies the exclusion of another thing. It,
therefore, logically follows that if a statute enumerates the things upon which it to operate; everything else must
necessarily, and by implication, be excluded from its operation and effect. For instance, if the statute in question
enumerates the matters over which a court has jurisdiction, no other matters may be included. Similarly, where a
statute forbids the performance of certain things only those things expressly mentioned are forbidden. So also, if
their performance in any other manner than that specified, or by any other person than one of those named is
impliedly prohibited.
Sutherland in his Statutory Construction,16 says:
The rule of expressio unius exclusio alterius est may be used advantageously in some case in determining whether
a statute should be construed as mandatory or permissive. As applied in this connection is that if a statute provides
one thing, a negative of all others is implied. Where a statute granted authority to do a thing and prescribed the
manner of doing it, the rule was clearly set out that the provision as to the manner of doing the thing was
mandatory, even though the doing of in the first place was discretionary.
Maxwell opined:17
Statutes which authorise persons to do acts for the benefit of others. or, as it is sometimes said, for the public good
Page 2 of 2
Enabling Statutes
or the advancement of justice, have often given rise to controversy when conferring the authority in terms simply
enabling and not mandatory.
In Haji Zakaria Suleman v Collector,18 the Court was considering whether the Bombay Rents, Hotel and Lodging
House Rates (Control) Act, 1947, awarded the Rent Controller with the discretion to dismiss an application for
default or for non-compliance with orders. The Court held the statute to be an enabling statute qua the Rent
Controller inasmuch as it provided powers of adjudication. Hence, the Rent Controller had an implied power
essential to the proper exercise of his jurisdiction to dismiss applications.
In M.V. Elisabeth and others v Harwan Investment And Trading19 the appellant vessel left the port without issuing
bills of lading or other documents required by the Respondent company for the goods shipped by it. On reaching
the port of destination, despite directions to the contrary from the respondent company the appellants handed over
the goods to the consignee. The respondents proceeded against the appellants for acting in breach of duty and
committing conversion of the goods entrusted to them.
In the proceedings before the High Court, the appellant raised a preliminary objection as to jurisdiction stating that
the suit against a foreign ship owned by a foreign company not having a place of residence or business in India,
could not proceed on the admiralty side of the High Court by an action in rem in respect of a cause of action by
reason of a tort or a breach of obligation arising from the carriage of goods from an Indian port to a foreign port. The
power of the High Court on the admiralty side was confined to the provisions of the Admiralty Court Act, 1861 made
applicable to India by the Colonial Courts of Admiralty Act, 1890 read with the Colonial Courts of Admiralty (India)
Act, 1891. On the other hand the respondents contended that every person had a right to approach the Court of the
land for appropriate remedy in respect of claims against a foreign ship and its owner.
The Supreme Court did not accede to the contention of limited admiralty jurisdiction and ruled that apart from
statutes, the powers of that Court were derived from custom and practice and the principles developed by common
law and equity as well as by the generally recognised principles of civil law. There was no reason why those
principles could not be drawn upon to enrich and strengthen the jurisprudence of the country.
In Usha P. Kulkarni, Aurangabad v Department of Income Tax20 the practice of getting the service effected on the
respondent-assessee in a revenues appeal wherein notices of hearing could not be served on the assessee by post
was held to be in conformity with the judicial powers and jurisdiction of the Tribunal as it did not in any manner run
contrary to any provisions of the Statute 21.

13 . Ibid p 239; Gopalaswami v Secretary of State (1934) ILR 57 Mad 237, AIR 1933 Mad 748 [LNIND 1933 MAD 65], p
750; Re Dudley Corpn (1845) 13 M&W 706, p 721: although such a meaning cannot be implied in relation to
circumstances arising accidentally only; Doyle v Falconer (1886) 4 Moo PCC 203 (NS).
14 . Rai Ram Taran Banerji v DJ Hill 1949 FCR 292, p 308, per Mukherjea J; Campbell v Earl of Dalhousie (1868) LR 1 HL
259.
15 . Crawford, Statutory Construction, pp 334-51; Blackburn v Flavelle [1831] 6 AC 628 , p 634.
16 . Sutherland, Statutory Construction third edn, vol 3, pp 117-18.
17 . Interpretation of Statutes, eleventh edn, p 231.
18 . AIR 1963 Bom 233 [LNIND 1961 BOM 47], (1962) ILR Bom 441, (1962) 64 Bom LR 483.
19 . AIR 1993 1014.
20 . Decided on 26.6.2012 http://www.indiankanoon.org/doc/95131239/
21 . For similar proposition see Tirumala Construction, v Department of Income Tax decided on 2 December, 2010
http://www.indiankanoon.org/doc/60108371/
End of Document
Inference from Negative Words
NS Bindra
Inference from Negative Words
If the requirements of a statute which prescribes the manner in which something is to be done are expressed in
negative language, that is to say, if the statute enacts that it shall be done in such a manner and in no other, such
requirements are, in all cases absolute and neglect to attend to them will invalidate the whole proceeding.22
In Caterall v Sweetman,23 the validity of a marriage was in question which provided that no marriage between
Presbyterians and Catholics should be solemnised until one or both of such persons, as the case may be, shall
have signed a declaration in writing.
Dr. Lushingtonj, opined:
The words in this section are negative words and are clearly prohibitory of the marriage being had without the
prescribed requisites, but whether the marriage itself is void...is a question of very great difficulty. It is to be
recollected that there are no words in the Act rendering the marriage void and I have sought in vain for any case in
which a marriage has been declared null and void unless there were words in the statute expressly so declaring
it...From this examination of these Acts I draw two conclusions. First, that there never appears to have been a
decision where words in a statute relating to marriage, though prohibitory and negative, have been held to enter a
nullity unless such nullity was declared in the Act. Secondly, that, viewing the successive marriage Acts, it appears
that prohibitory words, without a declaration of nullity were not considered by the legislature to create a nullity.
Hence, the marriage in question was held to be valid.
22 . Craies, Statute Law, fifth, edn, p 243; see also chap 20 for recent case law on the import of negative language.
23 . (1845) 9 Jur 954.
End of Document
Inference from Affirmative Words
NS Bindra
Statutory enactments although expressed in affirmative language, are sometimes treated as having a negative
implication and that their provisions, as Lord OHAGAN said in R v All Saints, Wigan24though affirmative in words,
are not necessarily so, if they are absolute, explicit and peremptory.25 Where the power is coupled with a duty of
the person to whom it is given to exercise it, then it is imperative.26 Sometimes a statute, passed for the purpose of
enabling something to be done, gives a discretionary power to the persons who are to carry out the purposes of the
statute.27 That discretion like other judicial discretion must be exercised according to common sense and
according to justice, and if there is no indication in the Act of the ground upon which the discretion is to be
exercised, it is a mistake to lay down any rules with a view to indicating the particular grooves in which the
discretion should run.28 Discretion means when it is said that something is to be done within the discretion of the
authorities that something is to be done according to rules of reason and justice, not according to private opinion;
according to law, and not humour. It is to be too arbitrary, vague and fanciful, but legal and regular. And it must be
exercised within the limit, to which an honest man competent to the discharge of his office ought to confine
himself.29
Lord Wrenbury observed in Roberts v Hopwood:30
A person in whom is vested a discretion must exercise his discretion upon reasonable grounds. A discretion does
empower a man to do what he likes merely because he is minded to do so...he must, in the exercise of his
discretion do not do what he likes but what he ought. In other words, he must, by use of his reason, ascertain and
follow the course which reason directs.
Craies observed:31
But the conditions in an enabling Act which have been prescribed for the purpose of protecting or benefiting the
public cannot be dispensed with.
In Ex p Stephens,32Section 10 of 38 and 39 Vict, c 91, provided that a trade-mark might consist of inter alia, any
special and distinctive words of combination of letters used as a trade-mark before the passing of this Act. Jessel
MR. held that a distinctive word which had not been used as a trade-mark before the passing of the Act could not
be so used after the passing of the Act. He observed:
Otherwise it would be contravening the well-known rule that when there is a special affirmative power given which
would not be required because there is general power, it is always read to import the negative, and that nothing
else can be done. Therefore the power to use as a trade-mark a word used before the passing of the Act clearly
negatives the conclusion that a distinctive word can be so used if the word was not so used before the passing of
the Act.
In DLF Qutab Enclave Complex Educational Trust v State of Haryana,33 DLF purchased free-hold land at Gurgaon
in Haryana for setting up a colony. It applied for and was granted licence in terms of the provisions of the Haryana
Development and Regulation of Urban Areas Act 1975. It created a trust wherefore sites were earmarked for
constructions of schools and community buildings in the complexes. The said sites vested in the trust by reason of
Page 2 of 3
a deed. The trust entered into agreements of lease with interested entities. These entities also applied for approval
and were granted building plans by the state. The state issued a letter to the DLF directing it to ensure that no other
right be created in favour of these entities on community site, in respect whereof third party right had been created
earlier. The issue before the court was whether with a view to achieve the object of the Act, should the regulatory
provisions contained therein be construed as a total prohibition on transfer of land not only in relation to those which
are required for development works but also to schools, hospitals, community centers and other community
buildings.
The appellant contended that the Act and the rules framed thereunder or the conditions of license do not provide for
imposition of any embargo on transfer of the lands, in question to third parties so long the user of the land conforms
to the provisions of the Act, rules or the terms and conditions of the license. By reason of Section 3 (3) of the Act
the licensee was merely obligated to construct or get constructed schools, hospitals, community centers etc. and
thus, in terms thereof no prohibition has been imposed as regard transfer. The respondent state replied that
although there was no express bar on transfer of lands by the owners, on creating third party or interest in favour of
other entities, the same must be inferred having regard to the scheme of the said Act. Such scheme would appear
from the interpretation clauses of the Act, namely, from Section 7 of the Act, as also the rules framed thereunder
and the licenses granted. If the state could take over the lands without payment of any compensation under the
Act,34 it must necessarily be held that it has also the concomitant right to keep control which would include
imposing restriction on transfer of the said land. The owner of the land was not entitled to exercise any right over
the property and its right to use the same was restricted to get constructions raised through a third party for which
also it has itself to incur costs. The extent of regulation can further be judged by the fact that a coloniser35 is not
entitled to enter into a profitable venture, the reasonable profit being restricted to 15% by the legislature and thus in
the event the owner could create third party and fourth party interests, the same would defeat the very purpose and
object of town planning.
The Court held:36
Though the object of the said Act is laudable and it does not mean that the regulatory provisions should be
construed as a total prohibition on transfer of land. The construction of schools etc, was not developmental work but
construction of amenities.37 The cost of development works indisputably is to be raised from the plot holders, but
as construction of schools, hospitals, community centers and other community buildings do not come within the
purview of the term development works the costs therefore are not to be borne by them...The right of transfer of
land is incidental to the right of ownership. Such a right can be curtailed or taken away only by reason of a statute.
An embargo upon the owner of the land to transfer the same in the opinion of this court should not be readily
inferred. Section 3 (3)(a)(iv) of the Act does not expressly impose any restriction. The same is merely a part of an
undertaking. The statute does not expressly lay down any consequences if the undertaking restricting transfer is
violated. The statute also does not provide that the transfer would be illegal or that the transferee would not derive
any title by reason thereof. A regulatory act must be construed having regard to the purpose it seeks to achieve. A
statute relating to regulation of user of land must not be construed to be a limitation prohibiting transfer of land
which does not affect its user.
For more illustrations on enabling statutes see Table 3.3
24 . [1874] 1 AC 611 , p 629.
25 . Craies, Statute Law, fifth edn, pp 244-46.
26 . Re Bake (1890) 44 Ch D 262; Julius v Bishop of Oxford [1880] 5 AC 214 ; Balak Ram v Sita Ram AIR 1954 HP 6.
28 . Gardner v Jay (1885) 29 Ch D 50, 58.
29 . Sharp v Wakefield [1891] AC 173, p 179; Brij Inder Singh v Kanshi Ram 44 IA 218, pp 225-26; Babu Lal v Emperor
AIR 1938 PC 130, p 134; to be exercised fairly and honestly; Holland v Worley (1884) 26 Ch D 578, p 584.
30 . [1925] AC 578, p 613; IM Lall v Secretary of State (1944) ILR Lah 325, AIR 1944 Lah 240, p 253.
Page 3 of 3
31 . Craies, Statute law, fifth edn, p 250.
32 . [1873] 3 Ch D 659.
33 . (2003) 5 SCC 622 [LNIND 2003 SC 213], para 50.
34 . In terms of s 3 of the Haryana Development and Regulation of Urban Areas Act 1975, a coloniser has to construct
schools, hospitals, community centres and community buildings at its own cost or to get the same constructed by any
other institution at its cost and for the said purpose land have to be set apart. However, in the event the same is not
done within a reasonable time, the state would be at liberty to take over the land and fulfill the said objects as specified
in the sanctioned plan.
35 . A coloniser is defined as an individual, company or association or body of individuals, whether incorporated or not,
owning or acquiring or agreeing to own or acquire, whether by purchase or otherwise land for converting it into a colony
and to whom a licence has been granted under this Act.
36 . DLF Qutab Enclave Complex Educational Trust v State of Haryana (2003) 5 SCC 622 [LNIND 2003 SC 213].
37 . The court made a distinction between amenities and development work The expression Development Work as noticed
hereinbefore is not synonymous with Amenity. The expression Amenity has been used only in proviso appended to cl
(v) of s 3 (3) and r 2 (b) of the rules. Rules are subservient to the Act, although they may be read conjointly with the Act,
if any necessity arises therefor. Even rule 5 specifies the obligation of the coloniser as regard providing for the
development works. The expression amenity as defined in rule 2 (b) of the rules is wider than development works. No
principle of construction of statute suggests that a wider expression used in the rule may be read in the statute
employing narrower expression. Even in the rule the said expressions have been used for different purposes. The
licence, also not postulate that all amenities must be provided by the coloniser at its own expense.
End of Document
Power Conferred within Specified Purposes
NS Bindra
With regard to the effect of statutes which give power to carry out some object which it is assumed will benefit the
public at large like making and working a railway or tramway, one of the most important rules is, that although it is
not obligatory upon persons who have obtained an Act of Parliament enabling them to form themselves either into
an incorporated company or a statutory corporation for some specific purpose, to carry out that purpose, still, if they
do proceed to exercise the powers conferred upon them by the Act which they have obtained. In deciding what may
be done under statutory powers, court of law will always take into consideration the objects for which the statutory
powers have been conferred. If the powers are conferred in order to enable a body of adventurers like a railway
company to construct works which, although of public utility, will or ought to yield to the constructors a lucrative
return, those adventurers will always be compelled to confine their operations strictly to the purposes contemplated
by the enabling statute, whereas if the powers are granted to some public body, like a corporation or vestry, solely
to enable them to carry out some work of public utility or necessity like making a new street or constructing a sewer,
more latitude will be allowed in the exercise of the powers of which have been granted.38
Lord Cranworth observed in Galloway v Mayor of London:39
The principle is this: that when persons embark in great undertakings for the accomplishment of which those
engaged in them have received authority from the legislature to take compulsorily the land of others, making to the
latter proper compensation, the persons so authorised cannot be allowed to exercise the powers conferred on them
for any collateral object, that is, for any purposes except those for which the legislature have invested them with
extraordinary powers. The necessity for strictly enforcing this principle became apparent when it became an
ordinary occurrence that associations should be formed of large numbers of persons possessing enormous
pecuniary resources, and to whom are given powers of interfering for certain purposes with the rights of private
property. In such a state of things it was very important that means should be devised whereby the courts,
consistently with the ordinary principle on which they act, should be able to keep such associations or companies
strictly within the powers, and should prevent them when the legislature has given them power to interfere with
private property for one purpose, from using that power for another purpose...It has become a well-settled head of
equity that any company authorised by the legislature to take compulsorily the land of another for definite object will,
if attempting to take it for any other object, be restrained by the injunction of the court of Chancery from so doing.
However, it is not sufficient for the company to make a mere statement that the purposes for which they are about
to exercise their power of taking lands are within the contemplation of the Act; they must do more than this and
must be prepared with satisfactory evidence to prove this to a court of justice if they are called upon to do so.40
Even if powers are given by Act of Parliament they must be exercised strictly and not extended and yet they are not
to be curtailed.41 Powers conferred by statute cannot be assigned without express statutory permission to do
so.42
38 . Ibid p 260.
39 . 1866 LR 1 HL 34; Lyon v Fishmonger Company [1876] 1 AC 662 : it is well-settled that a public body invested with
statutory powers such as conferred upon the corporation must take care not to exceed or abuse its powers; it must
Page 2 of 2
keep within the limits of the authority committed to it; it must act in good faith and reasonably: per Lord Macnaughten in
Westminister Corpn v L & N Rly [1905] AC 426.
40 . Craies, Statute Law, fifth edn, p 261: at any rate, the benefit of doubt is to be given to those who might be prejudiced
by the exercise of the power which the enactment grants and against those who claim to exercise them; John Earnest v
Jogendra Chandra AIR 1935 Cal 298, p 310, (1935) ILR 62 Cal 886.
42 . Ibid.
End of Document
Anticipatory Provisions
NS Bindra
Anticipatory Provisions
It is a fairly common legislative practice to insert in an Act a provision authorising certain action to be taken in
anticipation of its being brought into force and to be kept ready for operation simultaneously with the bringing into
force of the Act. Such a provision is usually found in many statutes where a certain interval of time is contemplated
by the legislature between the date of the passing of the Act and the commencement of its operation. The exercise
of the powers so conferred in anticipation of the commencement of the Act is perfectly legal and valid.
In Bishnu Charan Mukherjee v State of Orissa,43 the Court was considering the Orissa Municipal Act, 1950, and
whether under the power to hold the election provided in Section 1 (5), came the implication that the Act and rules
framed under it would apply to the election. The Court held that the relevant provisions of the Act would apply to the
election, but the effect of the provision, being an enabling provision, would be limited to the aforementioned
application, and would not extend to applying the entire Act to the process of conducting an election.
43 . AIR 1952 Ori 11 [LNIND 1951 ORI 10].
End of Document
Conclusion
NS Bindra
Conclusion
It is often said that the nature of a product is determined by its substance and not by its description.
The veracity of this proposition comes to the fore in the disputes of categorization between procedural and
substantive statutes. It is the nature of the statute rather than its description which determines whether it is deemed
substantive or procedural. This chapter also demonstrates that the process of making and unmaking law is a
continuous one. Statutes are amended, codified or consolidated in an effort to destroy the old and to create new
norms. However, how much of the old is destroyed by the new remains contentious and therefore invites
interpretation. The interplay between the old and the new informs the interpretational process.
Table 3.3 Substantive and Procedural Statutes
S. No. Name and Citation of Provision and Statute Principle Applied Construction of the
the Case Court
1. N. T. Veluswami Representation of the Liberal Construction of The Court held that the
Thevar v G. Raja People Act, 1951 - 100 Procedural Provisions Election Tribunal had
Nainar (1)(c) the jurisdiction to
AIR 1959 SC 422 entertain grounds of
[LNIND 1958 SC 148] disqualification not
raised before
Returning Officer, as
the said section was a
procedural provision
that would include all
matters of rejection
and disqualification.
2. Indraj Singh v Savitri Uttar Pradesh Retrospective Section 209 was

AIR 1966 All 234 Zamindari Abolition operation of procedural amended to include
[LNIND 1965 ALL 35] and Land Reforms Act provisions damages as a relief to
- Section 209 the plaintiff under a suit
for ejectment. The
Court held that since
the relief prescribed by
the provision was of
the character of
procedural law, it
would operate
retrospectively.
3. Ram Jas v Surendra Evidence Act, 1872 - Independent The question before
Nath Section 90 and Section Construction of the Court was whether
AIR 1980 All 385 90A Substantive and a document admissible
Procedural Provisions under Section 90,
Page 2 of 7
Conclusion
would be controlled by
the provisions of
Section 90-A (which
made documents more
than 20 years old to be
supported by true
copies). The Court held
that Section 90 was
4. United India Insurance Code of Civil Applicability of the The Court had to
Co. Ltd. v Seno Procedure, 1908 - CPC to Tribunals determine whether the
(1998) 118 PLR 171 Order XXVI ; Motor Motor Vehicles
Vehicles Act, 1988 - Accident Tribunal had
Section 166 the discretion to adopt
general principles of
procedure, and
principles of the CPC.
Hence, the application
of the CPC to the
Tribunal could not be in
violation of other laws
and rules.
5. Shaikh Salim v Kumar Code of Civil Liberal Construction of The Court held that the
(2006) 1 SCC 46 Procedure, 1908 - Procedural Provisions Court had discretion to
[LNIND 2005 SC 915] Order VIII, Rule 1 grant more time, and
condone delay, if the
written statement was
filed after the
prescribed time period.
6. Sandeep Rammilan Code of Criminal Liberal Construction of The Court held that the
Shukla v Cgo Complex Procedure, 1973 - Procedural Provisions ideas of fairness and
(Unreported, Bombay Section 154 justice ought to
High Court - 2008) pervade procedural
law, and hence, in the
course of investigation,
the police officer ought
to register an FIR
irrespective of the
information sought to
be entered.
7. Union of India v Ajeet Juvenile Justice (Care Justice, Fairness and It was argued that a
Singh & Protection of Procedural Law General Court Martial
(2013) 4 SCC 186 Children) Act, 2000 could not be held
[LNIND 2013 SC 255] against a person who
had not attained the
age of 18 years, and
such proceedings were
barred by the 2000 Act.
The Court held that the
procedural protection
of the 2000 Act i.e.
separate process for
trial, could not trump
considerations of
fairness and justice.
Thus, the Court Martial
was held to be proper.
Page 3 of 7
Conclusion
Amending Statutes
S. No. Name and Citation of Provision and Statute Amendment Construction of the
the Case Amendment by the
Court
1. S.B. Adityan v S. Representation of the Representation of the The Amendment

Kandaswami Peoples Act, 1951 - Peoples (Amendment) deleted the taking of a
AIR 1958 SC 857 Section 123 Act, 1956 bribe from the list of
[LNIND 1958 SC 69] corrupt practices for
which a candidate
could be disqualified.
On the basis of this,
the Court held that
prior to the
Amendment, taking a
bribe would lead to
disqualification.
2. Sufi Mohd. Akbar And Code of Criminal Code of Criminal It was argued that the
Ors. v State of Jammu Procedure, 1898 Procedure amendment would also
And Kashmir 1960 Crilj (Jammu and Kashmir) (Amendment) Act, apply to the application
223 1956 of the 1898 Act. The
Court held that if the
object of the
amendment was to
apply to proceedings in
Jammu and Kashmir, it
would have explicity
said so. Hence, the
amendment was
strictly construed to
exclude its application
from the state.
3. Burhanpur Tapti Mills M. P. Industrial M. P. Industrial The effect of the

Ltd v Industrial Court Relations Act, 1960 Relations amendment was to
AIR 1965 MP 43 (Amendment) Act, extend the jurisdiction
1961 of the Industrial Court,
which had been
established under a
1939 Act that had been
repealed by the 1960
Act. The Court
observed that the
amendment ought to
be read as if it were
always a part of the
statute, and hence, the
Court held that the
Amendment ought to
be construed to relate
back to the repeal of
the older Act, and
hence, the jurisdiction
of the Industrial Court
was deemed to have
been continued since
the date of repeal.
4. Thiru Manickam And Central Sales Tax Act, Central Sales Tax The amendment had
Page 4 of 7
Conclusion
Co v State of Tamil 1956 - Section 15 (a) (Amendment) Act, the effect of allowing
Nadu 1972 the refund of Sales Tax
AIR 1977 SC 518 for local and not inter-
[LNIND 1976 SC 392] state sales. On the
basis of the
Amendment, the Court
held that the
unamended Act would
clearly have meant that
Sales Tax ought to
have been refunded for
both local and inter-
state sales.
5. Reserve Bank of India Reserve Bank of India Reserve Bank of India The question before
v Cecil Dennis Staff Regulations, 1948 Pension Regulations, the Court was whether
Solomon (2004) 9 SCC 1990 recommendations
461 [LNIND 2003 SC made by the
1050] Governnment to
amend the 1948
Regulations would
have any statutory
effect. The Court held
that such
recommendations
would not have any
binding force or effect,
and the 1990
Regulations would
continue to govern
pensions of
employees.
6. State of M.P. v The Madhya Pradesh Amendment vide The Court had to
Yogendra Shrivastava Employees State Notification dated consider whether the
(2010) 12 SCC 538 Insurance Service 20.5.2003 Amendment, which
[LNIND 2009 SC 1878] (Gazetted) Recruitment changed the rate of
Rules, 1981 NPA from being
decided by the
government to a fixed
rate of 25%, could be
applied retrospectively
to deny the benefits
accruing under the
unamended Act. The
Court held that an
amendment could not
be interpreted to cause
deprivation of accrued
benefits, and hence the
amendment ought to
be interpreted as
applying prospectively.
7. M/S Tata Sky Ltd. v Madhya Pradesh Madhya Pradesh Under the Amendment,
State of M.P. (2013) 4 Entertainment Duty Entertainment Duty the non-payment of
SCC 656 [LNIND 2013 and Advertisements and Advertisements entertainment tax was
SC 464] Tax Act, 1936 Tax (Amendment) Act, made a penal offence.
2009 The Court had to
consider whether the
Act operated on DTH
Broadcasting as well.
Page 5 of 7
Conclusion
In this regard, the

Court held that since
the amendment did not
explicitly apply the
parent Act to DTH
Broadcasting, it could
not be argued that the
Amendment would
apply to DTH
Broadcasting.
Enabling Statutes
S. No. Name and Citation of Provision and Statute Context of the Case Construction of the
the Case Court
1. Catholic Bank v FPS Companies Act, 1913 - The question before It was argued that
Albuquerque Section 152 the Court was whether Section 152 was an
AIR1944 Mad 308 Section 152 had the enabling provision that
effect of confining an opened various
arbitration in which a avenues for companies
limited liability to follow. The Court
company was rejected this
concerned to an contention, and held
arbitration under the that the provision ought
Arbitration Act, 1899, to be interpreted as
or whether the section limiting the scope of
left a company free to arbitration between
follow any of the companies to the 1899
courses contemplated Act, and hence, the
by the Civil Procedure Court had to operate
Code as it stood before within the limits of the
1940. Act. The Court refused
to read Section 152 as
enabling, because in
the opinion of the
Court, this would
defeat the object of the
1899 Act.
2. K. M. Kanavi v The Bombay Municipal Section 200 (1) of the The Court held that the
State of Mysore AIR Boroughs Act, 1925 - Act laid down that the provision could not be
1968 SC 1339 [LNIND Section 200 (1) authorities who may construed as an
1968 SC 114] direct any prosecution enabling section just
were the Standing because of the use of
Committee and the the word may, and held
Chief Officer. The that the prosecution
appellant was was improper because
convicted on the it did not follow the
complaint of the newly mandate of Section
elected President. This 200 (1).
was challenged as
violating the mandatory
procedure of Section
200 (1) . The High
Court held that Section
200 (1) was an
enabling provision, and
was not exhaustive in
listing the authorities
Page 6 of 7
Conclusion
who could direct

prosecution.
3. Gram Panchayat v Andhra Pradesh Section 6 of the Act The Court held that
Government of Andhra General Clauses Act, allowed the Section 6 was an
Pradesh 1891 - Section 6 Government or other enabling provision
AIR 1982 AP 315 authorities make rules intended to facilitate
[LNIND 1982 AP 9] or to issue orders with the making of rules and
respect to the orders before the date
application of an Act of commencement of
that had not come into the enactment, in
force. or with respect to anticipation of its
the appointment of any coming into force.
officer thereunder, Hence, it validated the
such power may be issuance of rules and
exercised at any time orders made after the
after the passing of the passing of the Act but
Act but rules or orders before it comes into
so made or issued force. With this
would not take effect till interpretation of
the commencement of Section 6, the Court
the Act. upheld the validity of
G. O. Ms. No. 411.
It was argued that
Section 6 did not save
G. O. Ms. No. 411 that
was issued 8 months
before the coming into
force of the Andhra
Pradesh Urban Areas
(Development) Act,
1975.
4. India Council of Legal Bar Council of India The question before The Court held that the
Aid and Advice v Bar Rules, 1975 - Rule 49 the Court was whether concerned rule was
Council of India (1) persons who have couched in positive
(1995) 1 SCC 732 completed 45 years of terms i.e. it said that
[LNIND 1995 SC 84] age, be said to the rules could
constitute a class or prescribe the class or
category to entitle the category of persons
Bar Council of India to who may be admitted
debar them from being to the legal profession.
enrolled as advocates. In such a
circumstance, the
provision ought to be
construed as an
enabling provision for
the Bar Council to
make rules regarding
disentitlment from
enrolment of advocates
on the basis of age.
5. Surendran v Cooperative Societies The question before The single judge held
Mavelikara Primary Act, 1969 - Section 37 the Court was whether that Section 37 was an
Co-Op Agricultural an amount due to a enabling provision, that
Committee 2005 (4) Co-operative Society allowed the Co-
KLT 619 [LNIND 2005 from its members be operative Society to
KER 587] recovered from the classify amounts as
Death-cum-Retirement salary, and hence, the
Gratuity, and whether desired deduction
Page 7 of 7
Conclusion
such an amount would could be made. The

qualify as salary under High Court disagreed,
Section 37. and held that the term
salary used in the
relevant provision
refers to periodical and
monthly recurring
payment to be made to
the employee while in
service, and the
expression DCRG
could not be imported
into the provision to
expand the meaning of
the term salary.
6. H.P. Scheduled Tribes Constitution of India - The appellants sought The Court observed
Emp.Fedn v Himachal Articles 16 (4), 16 (4A), the issuance of a that the language of
Pradesh S.V.K.K and 16 (4B) mandamus for the Articles 16 (4) and 16
(Supreme Court - implementation of the (4-A) was in the nature
2013) policy of reservation for of an enabling
backward tribes in the provision. However,
(available at state of Himachal this did not mean that
http://judis.nic.in/supre Pradesh. The question the state would not
mecourt/imgs1.aspx?fil before the Court was implement the policy of
ename=40773) whether Article 16 reservation on the
could be enforced as a basis of the fate of the
matter of right in this 117th Amendment.
case. Hence, the Court held
that the policy of
reservation ought to be
implemented by the
state of Himachal
Pradesh.
End of Document
Introduction
NS Bindra
Edition > Part III The Contextual Dimension of Interpretation > CHAPTER 16 Beneficial and
Welfare Statutes
Introduction (14)
Courts continually declare that the exercise of interpretation is aimed at realizing the intention of the legislature.
When the legislative intention aims to provide benefit then the Courts read the text differently from how they read it
when the intention is to effect deprivation. This chapter examines the manner in which Courts interpret welfare
legislations.
End of Document
Beneficial Statutes and Rule of Beneficent Construction
NS Bindra
Welfare Statutes
Statutes which purport to confer benefit on individuals or a class of persons, by relieving them of onerous
obligations under contracts entered into by them; or which tend to protect persons from oppressive acts of
individuals with whom they stand in certain relations, are called a beneficial legislations. It is the duty of the court to
interpret a provision, especially a beneficial provision, liberally so as to give it a wide meaning rather than a
restrictive meaning which would negate the very object of the rule.1 A beneficial piece of legislation has to be
construed in its correct perspective so as to fructify the legislative intent underlying its enactment. When two views
are possible on the applicability of a legislation to a given set of employees, then the view which furthers the
legislative intent should be preferred to the one which would frustrate it.2 Socio-economic legislation enacted with
the object of securing social welfare is not meant to be interpreted narrowly so as to defeat its object.3 It is true that
beneficial provisions have to be liberally construed, but it is equally true that once the provision envisages the
conferment of benefit limited in point of time and subject to the fulfillment of certain conditions, their non-compliance
will have the effect of nullifying the benefit.4 There is no such rule of construction that a beneficial legislation is
always retrospective in operation, even through such legislation either expressly or by necessary intendment is not
made retrospective.5 The provisions of a welfare legislation cannot be interpreted in such a manner as to bring
about a result so plainly contrary to the object of the legislation. It is not the law that rights other than those created
by a particular statute may be taken away in proceedings under that statute without affording a hearing to those
desiring to be heard. If, however, the statute says that only a category of persons will be heard and no other, then,
of course, no other will be heard.
In KT Rolling Mills v MR Meher,6 the Bombay High Court observed:
The Court takes a middle ground and while preferring in the first instance the application of the canon of literal
construction, does, where necessary, resort to other established principles and rules aimed at furthering the
ascertainment of the true intention and meaning of the law-maker. One effectual way of discovering the import of
dubious expressions is to bear in mind the spirit and reason of the law for that helps to bring out the legislative
intent. This is of particular cogency in interpreting beneficial legislation but it is not the same thing as equitable
construction...The Legislature is not bound to extend a legislation to all cases to which it might possibly reach even
in case of beneficial provisions. It is for the Legislature to consider practical exigencies, relative degrees of harm to
the employer and the workmen and all other material factors and determine the ambit and purview of those
beneficial provisions.
1 .Madan Singh Shekhawat v Union of India (1999) 6 SCC 459 [LNIND 1999 SC 704].
2 .Transport Corpn of Indian v Employees State Insurance Corpn (2000) 1 SCC 426 [LNIND 1999 SC 1101].
3 .State of Uttar Pradesh v RK Modi AIR 1968 All 197.
4 .Noor Hussain &Anor v Financial Commr AIR 1995 J&K 102.
5 .Shyam Sunder &Ors v Ram Kumar (2001) 8 SCC 24 [LNIND 2001 SC 1541].
Page 2 of 2
6 . AIR 1963 Bom 146, 64 Bom LR 645.
End of Document
Remedial Statutes and their Interpretation
NS Bindra
Welfare Statutes
Remedial statutes correct defects in the pre-existing law, statutory or otherwise. The purpose of such statutes is to
keep pace with the views of society. They serve to keep the system of jurisprudence up to date and in harmony with
new ideas or conceptions of what constitutes just and proper human conduct. Their legitimate purpose is to
advance human rights and relationships. Unless legislations perform such functions, they are not entitled to be
known as remedial legislations nor to be liberally construed. Manifestly a construction that promotes improvements
in the administration of justice and the eradication of defects in the system of jurisprudence should be favoured over
one that perpetuates a wrong. It seems proper to assume that the lawmakers intended to advance our laws forward
as far as our conception of justice and proper conduct extend. For this reason alone, if for no other, is remedial
legislation entitled to a liberal construction.7 In most of the cases, applying the rule that remedial statutes are to be
liberally construed, remedial is employed to mean the converse of legislation imposing criminal or other severe
penalties. Therefore, where the burdens imposed by a statute are limited to compensatory damages, the statute is
frequently regarded as remedial. Similarly, legislation providing for the remission of penalties has often been
accorded a liberal construction on the ground that such legislation is remedial in nature. And it is not uncommon to
find decisions referring to remedial statutes in the conflicts sense as meaning the converse of penal legislation.
Sutherland observes:8
But the mere fact that a statute is given liberal interpretation because is a remedial statute is of little value in
statutory construction unless the term remedial has some sort of restrictive meaning. For, if all laws are remedial
(and certainly all statutes are enacted to remedy some defect in existing laws), the rule amounts to nothing more
than a statement that all legislation is to be liberally construed. Possibly the trend, today favours a liberal
construction of all legislation with the view to effectuating the legislative purpose. Traditionally, however, the courts
have been more discriminating, and in selecting a liberal or strict construction the emphasis has usually been
placed upon the persons, things or interest affected by the statute. An examination of the decision will show that the
courts have assumed that the term remedial has a limited meaning in two respects. They are:
(i) usually remedial is used in connection with legislation which is not penal or criminal in nature, in that such
laws do not impose criminal or other harsh penalties.
(ii) the term remedial is often employed to describe legislation which is procedural in nature in that it does not
affect substantive rights.
In Construction and Interpretation of Laws, Blackstone observes in relation to the doctrine under consideration that,
It may also be stated generally that the courts are more disposed to relax the severity of this rule (which is really a
rule of strict construction) in the case of statutes obviously remedial in their nature or designed to effect a beneficent
purpose. Remedial statutes are liberally construed, and in cases of doubt or ambiguity that construction is adopted
which will best advance the remedy provided and help to suppress the mischief against which it was aimed. Starting
from antiquity, this rule has often been invoked by courts, though within well defined limits, to prevent statutes from
becoming nullities or failing to achieve their purposes on account of unskillful or inartistic drafting.
In B Chotey Lal v Fazul Rahman Khan,9 the Court was considering whether the respondents were agriculturists
under the Uttar Pradesh Debt Redemption Act, 1940. This controversy arose because the respondents sought to
amend a decree under Section 9 of the Act. The Court held that the Act was of a remedial nature, and, hence, its
provisions must be interpreted literally so as to promote the object which the legislature had in view in enacting the
law. In the opinion of the Court, the proper interpretation of Explanation II attached to the definition of an
Agriculturist in Section 2 (3) of the Act was that the benefit of a temporary remission of land revenue goes both to
Page 2 of 2
the landlord who actually pays the land revenue as well as to the landlord or proprietor who actually pays the land
revenue as well as to the landlord or proprietor who is assumed to pay the land revenue. In this view, the wakf
estate was also entitled to claim a reduction in the local rate payable in respect of non-revenue paying items of
property comprised in the wakf.
7
. Crawford, Statutory Construction, pp 492, 494.
Remedial statutes, that is, those which rectify defects, and abridge superfluities in the former, law, should be given a
liberal construction in order to effectuate the purposes of the legislature, or to advance the remedy intended, or to
accomplish the object sought, and all
matters fairly within the scope of such a statute should be included, even though outside the letter, if within its spirit or
reason. But, as we have stated elsewhere, a liberal construction does not justify an extension of the statutes scope
beyond the contemplation of the legislature, even if the statute is purely remedial, and liberal construction would
produce a result highly beneficial or desirable.
8 . Third edn, vol III, p 68.
9 . AIR 1954 ALL 176 [LNIND 1950 ALL 100], p 181; Soorvedi v Batchu Venkata Rao AIR 1966 AP 154 [LNIND 1965
AP 58]: a case under Madras Agriculturists Relief Act 4 of 1938.
End of Document
Interpretation ought to Prevent a Failure of Intention
NS Bindra
Welfare Statutes
Even where the usual meaning of the language falls short of the object of the legislature, a more extended meaning
may be attributed to the words, if they are fairly susceptible to it. It may, however, be noted that a statute,
expressed in general and comprehensive terms, and prospective in operation, will be applied to things and
conditions within its general scope, though coming into existence after its enactment, where the language fairly
includes them. This canon has its basis in the usual intention of the legislature that enactments declaring standards
shall have broad coverage. This occurs when the Act deals with a genus and the thing which afterwards comes into
existence is a species of it.10 It would seem that courts are justified in curing a casus omissus by construction
where the law is remedial in its nature and it is ascertained that the legislature had intended to include the omitted
case. Where, however, the statute is subject to strict construction, the refusal of the courts to supply apparent
omissions or oversights is generally justified. An omission would not be supplied in those cases also where the
language of the statute is plain and free from ambiguity, and expresses a single, definite, and sensible meaning.
There is little difference, if any between the purpose and the sprit and reason of the law. Blackstone affirms this in
these words, The most universal and effectual way of discovering the true meaning of a law, when the words are
dubious, is by considering the meaning and spirit of it, or the cause which moved the legislator to enact it.11 The
construction must not, of course be strained to include cases plainly omitted from the natural meaning of the
words.12 Sometimes the governing principle of the remedial enactment has been extended to cases not included in
its language to prevent a failure of justice and consequently of the probable intention.13
According to Maxwell:14
The beneficial spirit of construction is also well-illustrated by cases where there is so far a conflict between the
general enactment and some of its subsidiary provisions, that the former would be limited in the scope of its
operation if the latter were not restricted. An Act which, after authorising the imposition of a local rate on all
occupiers of land in a parish, gives a dissatisfied rate payer an appeal, but at the same time requires the appellant
to enter into recognisances to prosecute the appeal, presents such a conflict. Either it excludes corporations from
the right of appeal because a corporation is incapable of entering into recognisances, or it extend the right to them,
without compliance with the special requirement. The latter would be unquestionably the beneficial way of
interpreting the statute. The general and paramount object of the Act would receive full effect by giving to corporate
bodies the same right of appeal against the burden imposed on them and the subsidiary provision would be
understood as applicable only to those who were capable of entering into recognisances.
In ascertaining the legislative purpose, where the language used is ambiguous or admits of more than one
meaning, recourse may be had, among other things, to circumstances existing at the time of passage of the law,
the occasion for the new law and the evil intended to be cured, the remedy intended to be applied, the law prior to
the enactment of the Act under consideration, and the consequences of the interpretation proposed. In construing
an obscure law, there is no interpretative method more fruitful of result than that which:15
(a) Determines and considers the effect of a suggested construction.
(b) Examines such effect in the focus of the legislative purpose.

Page 2 of 2
11 . 1 B1 Comm 61.
12 . Maxwell, Interpretation of Statutes, 12th edn, p 92.
13 . Maxwell, Interpretation of Statutes, 12th edn, p 74.
14 .Interpretation of Statutes, eleventh edn, pp 75-76; quoting Curtis v Kent Waterworks (1827) 5 LJWC 106; Oriental
Insurance Co v Md Zarija AIR 1995 J&K 81; New India Assurance Co Ltd, Ahmedabad v Mithakhan Dinkkan Netiyar
AIR 1995 Guj 126; Sumitha Rani v Hardev Singh AIR 1995 P&H 300.
15 . Francis Mccaffrey, Statutory Construction, 1953, p 13.
End of Document
Illustrations of Welfare Legislation
NS Bindra
Welfare Statutes
It is probably true that all legislation in a welfare state is enacted with the object of promoting general welfare, but
certain types of enactments are more responsive to some urgent social demands and also have more immediate
and visible impact on social vices by operating more directly to achieve social reforms. The canon of construing a
social legislation is very different from the canon of construing ordinary law. The court cannot countenance any
tactics to circumvent or defeat the provisions of a legislation of this kind. Courts will be justified in even straining the
language of the Act, if found necessary, to achieve the purpose of the legislation. Courts should not only disapprove
all subterfuges to defeat social legislation, they must actively try to prevent such subterfuges so that legislations
succeed in achieving their objectives.16
In Harnam Singh v Surjit Singh,17 in considering an eviction petition for personal use of property and non-payment
of rent, on an evocation of the East Punjab Urban Rent Restriction Act, 1949, the Court held against the tenant, and
observed:
There can possibly be no dispute with the proposition that the Act is a beneficial piece of legislation with an eye to
safeguard the interest of tenants: However, from that it does not follow that the statute has loaded the dice inflexibly
against the landlords and every provision thereof must be construed against them. Indeed there is binding authority
for holding that the Rent Acts are social legislation which while protecting the tenants give co-equal statutory rights
to the landlords as well.
Though the question of striking balance, between the different classes of people, for the benefit of whom the Act
was bought in force was not explicitly mentioned, the court in E Palaniswamy v Palaniswamy18 ruled that the
benefits conferred on the tenants through the relevant statutes can be enjoyed only on the basis of strict
compliance with the statutory provisions. The question before the Court was the eviction of a tenant for non-
payment of rent and personal use of the landlord. The Court held that under Section 8 of the Tamil Nadu Buildings
Act, 1960, the procedure to be followed by the tenant was given step by step. An earlier step was a precondition for
the next step, and the tenant has to observe the procedure as prescribed in the statute. Equitable consideration had
no place in such matters. Section 9 of the Tamil Nadu City Tenants Protection Act, 1921, gave to a tenant who has
put up super structure in the tenanted premises the right to purchase the same at a price to be fixed by the court.
This application was to be made within one month of the service of summons in the eviction suit instituted by the
landlord against such a tenant. Section 3 of the Act further provided that a tenant was entitled to compensation with
respect to any building erected by the tenant on the tenanted premises and the compensation that he gets was only
for that portion of the occupied premises which he hands over to the landlord on ejectment. In this case, the
defendant was not in possession of the suit premises and he had also ceased to be a tenant of the premises. To
press his claim the defendant argued that the Act was a socially beneficial piece of legislation meant for the
protection of the interests of tenants and therefore its provisions should be liberally construed so as to advance the
object of the Act. The Court found this argument to be misconceived. It was observed:
Liberal interpretation did not mean that benefit can be given contrary to the basic provisions of the Act or in violation
of the statutory provision. As the appellants did not satisfy the basic ingredients of Section 9 of the Act, they are not
entitled to invoke the said provision for their benefit.19
In Deorajin Debi v Satyadhyan,20 the Thika Tenancy Ordinance, 1948, was enacted to give relief particularly to the
Page 2 of 6
bustee dwellers. Within a few months came the Act of 1949 which replaced the 1948 ordinance. The Act, however,
failed to realize its object primarily due to bad draftsmanship. Then came the amending Ordinance of 1952 to cure
the defects of language and to carry out the intention of framers of the Act, and in the early part of 1953, other
amendments were made to give a more effective protection to the Thika Tenants. Section 1 (2) of the Amending
Act, however, was so worded as to leave ample scope for interpretation as to whether a large body of Thika
tenants, who had protection under the immediately preceding ordinance, would continue to be so protected. The
Court held as follows:
The two rules have their own separate fields, and, although at some points, the boundaries may tend to overlap and
the demarcation may become indistinct, and extreme caution is needed to avoid straying into the unwarranted
regions, the interpretation of Section 1 (2) of the Calcutta Thika Tenancy Amendment Act 1953, hardly involves
such uncertain dividing lines. The ambiguity in the provision appears to be such as to bring it readily within the
former rule of interpretation, and as the intention of the statute in question and its object and scope definitely point
to a liberal construction in favour of the Thika tenant, the section should be construed, of course, as far as language
permits, so as to give effect to that intention. As in such cases too the limit is set by the statutory language, the
construction which is more in consonance with the legislative intent is also a literal construction, although it may not
always be strictly grammatical. It is only one amongst two or more literal constructions and, as it gives effect to the
object and purpose of the statute, reason dictates that it should be preferred and ought to be allowed to prevail.
In Ramchand Tillumal v Khubchand Daswani,21 the Court was considering whether a displaced person was
entitled to apply for the adjustment of his debts under Section 5 of the Displaced Person (Debts Adjustment) Act,
1951, only if his debt satisfies the requirements of Section 2 (6)(a) or (b) of the Act, or if the adjustment could be
made for any debt, considering the beneficial nature of the statute. The Court observed that in construing the
provision of a statute, it was the duty of the Court to give the words used by the legislature their plain grammatical
meaning, and in doing so, the Court could not unduly emphasise or press into service the object with which the
statute may have been enacted. However, when they were dealing with the present Act, which had been enacted
with a specific object and, in order to achieve its object, a special mode of defining debts had been adopted by the
legislature, the Court held that it would be legitimate to consider the scheme of the Act and the nature and scope of
the relief which is intended to be granted to the different classes of persons for the benefit of whom the Act had
been passed and to bear in mind the reason why the Act had been passed while dealing with the applicants right to
make the application under it. The Act mentioned three categories of debts in Section 2 (6), and the word debts had
been used at several places in the Act. The Court held that wherever the Act referred to debts due by a displaced
debtor, it was necessary to apply the provisions of Section 2 (6)(a) or Section 2 (6)(b), as the case may be. Hence,
a displaced debtor could apply under Section 5 only if the debt, which he sought to adjust, satisfied the
requirements of Section 2 (6)(a) or Section 2 (6)(b).
In Narayanaswami Reddiar v Padmanabhan,22 the question before the Court was whether a lady under a
bigamous marriage would be permitted to seek maintenance, and which properties would be marked for the
satisfaction of maintenance. The Court held that the lady was not entitled to maintenance under the Madras Hindu
Bigamy Prevention and Divorce Act, 1949 due to the fact of bigamy. In this context, the Court observed:
It is true that a medieval conservative approach should be avoided with reference to laws that purport to make
reforms and introduce innovations in personal laws in order that women folk, particularly, are vested with more
rights and better freedom. But the fact remains that any approach to the questions, though it should be liberal, has
necessarily to be within the four corners of the relative legislative measures. although the Madras Hindu Bigamy
Prevention and Divorce Act, 1949, had been designed for removing certain disabilities of Hindu women and for
conferring better rights on them for maintenance and property, the construction should not be so liberal as to
overstep the legitimate limits of interpretation and impart what is not recognised by the legislature. Thus, where the
marriage of a woman has become illegal under the Act, she cannot be considered as a legitimate wife for the
purpose of claiming maintenance from the person, the marriage with whom has been declared illegal.
A number of developments happened in the law relating to maintenance after the aforesaid decision; whilst there
were judicial decisions which continued to hold that after the enactment of the Hindu Marriage Act of 1955 the
marriage with the second wife was no marriage and hence she could not claim the right to maintenance provided
under section Section 18 of the Hindu Adoptions and Maintenance Act 1956.23 A welfare legislation the Court
conceded should be read liberally but the liberality cannot over-step the legislative limits of interpretation putting into
the legislation something which is not there. 24 On an analogous reasoning such courts hold that maintenance to
wife under section 125 of the Criminal Procedure Code could only be accorded to a legally wedded wife and to
Page 3 of 6
determine who is a legally wedded wife the personal laws of the parties needed to be consulted.25 Even as section
125 was included in the statute book to prevent destitution and vagrancy and such consequences could ensue if
the second wife was denied maintenance. Even so these courts declared they were prevented by legislative
intention to provide relief. The legislature they pointed had recognized the right of the illegitimate child, if they so
desired they could have extended it to the illegitimate wife but if he same had not been done, the courts could not
intervene. 26
On the other hands other courts took the view that welfare legislations should be read liberally. If section 18 of the
Hindu Adoption and Maintenance Act does not define a Hindu wife and does not state which wife could claim the
right of maintenance, then courts should not limit the right to the first wife alone. In effect, the Delhi High Court ruled
that the validity of marriage was not a sine qua non to acquiring the status of wife under the Hindu Adoption Act.27
It was of the opinion that the legislature never intended that a woman who is in the position of a second wife, be not
treated as the wife at least for the purposes of Section 18 of the Act and be deprived of her right to seek
maintenance. Further to hold otherwise the Court pointed out would amount to giving premium to the husband for
defrauding the second wife28
The second wifes entitlement to maintenance was accorded a statutory status by the Supreme Court in
Rameshchandra Daga vs Rameshwari Daga29. The factual matrix was as follows: the second wife initiated
proceedings by seeking judicial separation and maintenance for herself and her daughter. The husband in response
filed a counter petition seeking declaration of his marriage to the appellant as a nullity on the ground that on the
date when the petitioner married the respondent her marriage with her previous husband had not been dissolved by
any court in accordance with the provisions of the Act. The Family Court allowed the petition of the wife and granted
judicial separation and maintenance and dismissed the counter petition of the husband. On appeal the High Court
held that the first marriage of the wife with her previous husband having not been dissolved by any decree of the
court, her second marriage was in contravention of Section 5 (1) of the Hindu Marriage Act and hence void. On the
above finding, the High Court declared the marriage a nullity under section Section 11 of the Hindu Marriage Act
and set aside the decree of judicial separation, but, maintained the decree granting maintenance to the wife and her
daughter. In the challenge to the order of maintenance before the Apex Court, it was contended that where a
marriage is declared to be null and void by grant of decree, no order awarding permanent alimony or maintenance
can be made in favour of the unsuccessful party under Section 25 of the Act. While considering this contention, the
Apex Court held:
We have critically examined the provisions of Section 25 in the light of conflicting decisions of the High Court cited
before us. In our considered opinion, as has been held by this Court in Chand Dhawans case, the expression used
in the opening part of Section 25 enabling the Court exercising jurisdiction under the Act at the time of passing any
decree or at any time subsequent thereto to grant alimony or maintenance cannot be restricted only to, as
contended, decree of judicial * 14 * FCA-117/2006 separation under Section 10 or divorce under Section 13 . When
the legislature has used such wide expression as at the time of passing of any decree, it encompasses within the
expression all kinds of decrees such as restitution of conjugal rights under Section 9, judicial separation under
Section 10, declaring marriage as null and void under Section 11, annulment of marriage as voidable under Section
12 and Divorce under Section 13.
The appellant next argued that extending the benefit of Section 25 to a second wife would defeat the object and
purpose of Section 11 to ban and discourage bigamous marriages. The Apex Court rejected the argument and
observed
It is well known and recognized legal position that customary Hindu Law like Mohammedan Law permitted
bigamous marriages which were prevalent in all Hindu families and more so in royal Hindu families. It is only after
the Hindu Law was codified by enactments including the present Act that bar against bigamous marriages was
created by Section 5 (i) of the Act. Keeping into consideration the present state of the statutory Hindu Law, a
bigamous marriage may be declared illegal being in contravention of the provisions of the Act but it cannot be said
to be immoral so as to deny even the right of alimony or maintenance to a spouse financially weak and
economically dependant. It is with the purpose of not rendering a financially dependant spouse destitute that
Section 25 enables the court to award maintenance at the time of passing any type of decree resulting in breach in
a marriage relationship.
The decision of the Supreme Court in Daga has been relied upon in Lata v Neeraj Pawar30 to hold that even during
Page 4 of 6
the pendency of the suit where the petitioner is claiming that the marriage is void because the wife had a spouse
living at the time of the marriage the Court can make an order for interim maintenance.
In Pratap Singh v State of Jharkhand,31 the Court was considering the Juvenile Justice (Care Protection and
Treatment) Act, 2000, which provided that all persons below 18 years of age were juveniles under the new Act. In
their interpretation of this provision, the Court held that in the wake of the beneficient objectives of the new Act,
even a person who was not a juvenile under the 1986 Act was for the purposes of sentencing to be treated as a
juvenile under the 2000 Act. The Act provides for a beneficial consequences and, thus, it was required to be
construed liberally. The court observed that it was not oblivious of the proposition that a beneficent legislation
should not be construed so liberally so as to bring within its fold a person who does not answer the statutory
scheme. However, in the opinion of the Court, the Scheme of the Act was such that a liberal construction is
possible. This inference was further fortified from a reading of Section 64 of the Act which dealt with a case where a
person had been undergoing a sentence but if he was a juvenile within the meaning of the Act, the provisions
thereof would apply as if he had been ordered by the Juvenile Board to be sent to a special home or the institution,
as the case may have been.
In U.P. State Electricity Board v District Magistrate and Ors32 the Allahabad High Court was required to consider
whether the Public Liability Insurance Act 1991 would apply when an ordinary citizen died after coming into contact
with some of lose hanging electrical wires. The no fault compensation under the Act could be provided only if
electricity were to be considered a hazardous substance under the Act. The Schedule of the Public Liability
Insurance Act did not include electricity though the Environment Protection Act 1986 did have such inclusion.
The court pointed out that expression hazardous substance in Section 2 (d) of the 1991 Act could be interpreted in
two ways. It could either mean that only those substances which are specified in the notification of the Central
Government under Section 2 (d) would be regarded as hazardous substance under PLIA or all hazardous
substances which find mention in the Environment Protection Act, 1986 should also be considered hazardous
substances under PLIA provided that this presumption would not apply if any substance has been specified in the
notification of the Central Government under Section 2 (d). In that situation that substance will be a hazardous
substance only if it exceeds the quantity specified in the said notification. Since the 1991 Act was a beneficial
legislation enacted for a social objective hence the Court found that PLIA should be given a liberal interpretation, as
when two views are possible then the view in favour of the public should be preferred.
In Union of India v Prabhakaran Vijaya Kumar,33 the question before the Court was whether to get compensation
under Section 123 ofthe Railways Act, 1989, the deceased passenger had to be inside the train when the accident
and consequential death happened. On the basis of the beneficial nature of the Act, the Court held that it made no
difference for the payment of compensation under Section 123 whether the deceased passenger was inside the
train when she fell down or whether she was only trying to get into the train when she fell down.
Lucknow Development Authority v M.K. Gupta34 the Supreme Court was required to consider whether statutory
authorities such as Lucknow Development Authority or Delhi Development Authority or Bangalore Development
Authority constituted under State Acts to carry on planned development of the cities in the State were subject to the
Consumer Protection Act, 1986 (hereinafter referred to as the Act) for any act or omission relating to housing
activity. Keeping in view the wide reach of the Consumer Protection Act the apex Court answered the query in the
affirmative.
In Prafulla Samantra v Ministry of Environment & Forests,35 the National Environmental Appellate Authority was
considering the expression person aggrieved occurring in Section 11 (2) of the National Environmental Appellate
Authority Act, 1997. The Court held that the expression ought to be interpreted widely to ensure that persons, as
long as they work in the field of environment, possess a right to oppose and challenge all actions, whether of the
State or private parties, that impair or potentially impair the environment. In cases where complaints, appeals etc.
are filed bona fide by public spirited interested persons, environmental activists, or other voluntary organisations
working for the betterment of the community as a whole, they were to be construed as persons aggrieved within the
meaning of that expression under Section 11 (2)(c). The Court observed:
A well established rule of interpretation is that a beneficial statute should be given a purposive construction, to
further legislative intention, if literal interpretation thwarts it. The Act is at once a special one, providing for
evaluation by experts, and also, at the same time, a beneficial one, to further the cause of environment protection.
Page 5 of 6
Similarly, in Kala v Union of India,36 the Court was considering a matter relating to compensation for a railway
accident. The payment of compensation was resisted by the railways based on a claim of negligence by the
passenger. The Court held that the expression Untoward incident included accidental falling while trying to board a
train, and was not limited to situations where a person got inside a train and fell off thereafter, and that there was no
evidence to suggest any form of negligence on the part of the passenger. On the interpretation of welfare
legislation, the Court observed:
No doubt, it is possible that two interpretations can be given to the expression accidental falling of a passenger from
a train carrying passengers, the first being that it only applies when a person has actually got inside the train and
thereafter falls down from the train, while the second being that it includes a situation where a person is trying to
board the train and falls down while trying to do so. Since the provision for compensation in the Railways Act is a
beneficial piece of legislation, in our opinion, it should receive a liberal and wider interpretation and not a narrow
and technical one. Hence in our opinion the latter of the abovementioned two interpretations i.e. the one which
advances the object of the statute and serves its purpose should be preferred...It is well settled that if the words
used in a beneficial or welfare statute are capable of two constructions, the one which is more in consonance with
the object of the Act and for the benefit of the person for whom the Act was made should be preferred. In other
words, beneficial or welfare statutes should be given a liberal and not literal or strict interpretation.
In S. Iyyapan v United India Insurance Co. Ltd,37 the question before the Court was whether an insurance
company could disown its liability on the ground that the driver of the vehicle, although duly licensed to drive light
motor vehicles, was not licenced to drive light motor vehicle used as commercial vehicle. It was argued by the
insurance company that the obligation of uberrima fides had been violated by the driver, and hence, due to the
breach of the terms of the insurance contract, the insurance company could not be liable to pay the third party. The
Court repelled this contention, and observed:
Time and again this Court on various occasions considered the aim and object of making the insurance compulsory
before a vehicle is put on the road. Indisputably a new chapter was inserted in the Motor Vehicles Act only with an
intention of welfare measure to be taken to ensure and protect the plight of a victim of a road accident...Chapter XI
of the Motor Vehicles Act, 1988 providing compulsory insurance of vehicles against third-party risks is a social
welfare legislation to extend relief by compensation to victims of accidents caused by use of motor vehicles. The
provisions of compulsory insurance coverage of all vehicles are with this paramount object and the provisions of the
Act have to be so interpreted as to effectuate the said object.
16 .Kunju Mahommad v Labour Officer (1975) Ker LT 448: case under Shops and commercial Establishments Act 1969
(Ker), s 11; Lakshmi v Kunhipperachan 1978 Ker LT 122; Gujarat Electricity Board, Ukai v Hind Mazdoor Sabha(1991)
1 Guj LR 577 (Guj).
17 . AIR 1984 P&H 126, (1984) ILR 1 P&H 430, (1984) 1 Rent CJ 181, (1984) 1 Rent CR 247, (1984) 1 Rent LR 478.
18 . (2003) 1 SCC 123 [LNIND 2002 SC 680], para 5.
19 .SR Radhakrishnan v Neelamegam, (2003) 10 SCC 705 [LNIND 2003 SC 607], para 12.
20 . AIR 1954 Cal 119 [LNIND 1953 CAL 172].
21 . AIR 1955 Bom 138 [LNIND 1954 BOM 12].
22 . AIR 1966 Mad 394 [LNIND 1965 MAD 269], (1966) Mad LJ 529, 79 Mad LW 231.
23 . Abbayolla M. Subba Reddy v Padmamma, AIR 1999 Andhra Pradesh 19 The reasoning of the Andhra Pradesh High
Court was relied upon in Mangala Bhivaji Ladv Dhondiba Rambhau Aher AIR 2010 Bom 122 [LNIND 2010 BOM 400],
2010 (3) Bom CR 827 [LNIND 2010 BOM 400].
24 . Supra note 23 Padmamma.
25 . Yamunabai Anantrao Adhav v Anantrao Shivram Adhav AIR 1988 SC page 644.
26 . Savitaben Sonabhai Bhatia v State of Gujarat &Ors. (2005) 3 SCC page 636.
Page 6 of 6
27 . Narinder Pal Kaur Chawla v Manjit Singh Chawla AIR 2008 Delhi 7 [LNIND 2007 NGP 294].
28 . Ibid.
29 . (2005) 2 SCC page 33.
30 . I (2010) DMC 540, (2009) 154 PLR 239.
31 . (2005) 3 SCC 551 [LNIND 2005 SC 100].
32 . AIR 1998 All 1 [LNIND 1997 ALL 190].
33 . (2008) 9 SCC 527 [LNIND 2008 SC 1066].
34 . 1994 SCC (1) 243.
35 . Appeal No. 18 of 2009, National Environmental Appellate Authority, Order dated 15.09.2010.
36 . ILR (2011) III DELHI 266.
37 . (2013) 7 SCC 62 [LNIND 2013 SC 571].
End of Document
Illustrations from Socio-economic and Labour Legislations
NS Bindra
Welfare Statutes
In Hindustan Lever Ltd v Ashok Vishnu Kate,38 the Court was considering the jurisdiction of the Labour Court
under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971, where
actual orders of dismissal or discharge had not been passed. The Court upheld the jurisdiction of the Labour Court
even in such circumstances, and held:
In cases related to prevention of unfair labour practices, such a construction should be placed on the relevant
provisions which effectuates the purpose for which such legislation is enacted and does not efface the same
purpose. Welfare statutes must, of necessity, receive a broad interpretation.
In D.R.Venkatachalam v Deputy Transport Commissioner,39 the question before the Court was whether Rule 155
of the Motor Vehicles Rules, 1939, which established a marks based system for the allotment of license permits for
plying of buses, was ultra vires the Motor Vehicles Act, 1939, since it inherently favoured government run buses.
The Court construed the provision to be intra vires the Act, and and observed:
To miss the ideological thrust of our Constitution and the economic orientation of our nation while construing
legislation relating to public law and scanning them for their validity is to fail in understanding the social philosophy
that puts life and meaning into the provisions of the Act. The law, being realistic, reckons with the socialist sector
covering State and co-operative enterprises. The special status of a government-owned transport undertaking in a
Welfare State is obvious. It has large resources to cater to the traffic needs. It has, within its range of influence and
coordination. Many services useful to the travelling public, which may be beyond the reach of private ownership. Its
functional motto is not more profits at any cost but service to citizens first and in a far larger measure than private
companies and individuals, although profitability is also a factor even in public utilities. Its sensitivity to community
welfare and encouragement of labour participation, its accountability to the Government, the legislature and the
public put it in a category by itself.
In Ajaib Singh v Sirhind Co-op Marketing-cum-Processing Service Society Ltd,40 the Court had to consider whether
a delay of 7 years in approaching the Labour Court to challenge an order of termination would lead to the matter
being inadmissible. It was argued that disputes under the Industrial Disputes Act, 1947, being a social welfare
legislation, would not attract the application of the Limitation Act. The Court agreed with this contention, and held
that the jurisdiction of the Labour Court could not be disputed on the basis of limitation. The Court observed:
The object of Industrial Disputes Act 1947 is to improve the service conditions of industrial labor so as to provide for
them the ordinary amenities of life and by the process, to bring about industrial peace which would in its turn
accelerate productive activity of the country resulting in its prosperity. The prosperity of the country in its turn, helps
to improve the conditions of labour. Therefore, the provisions of the Act have to be interpreted in a manner which
advances the object of the legislature contemplated in the statement of objects and reasons. While interpreting
different provisions of the Act attempts should be made to avoid industrial unrest, secure industrial peace and to
provide machinery to secure the end. In dealing with industrial disputes, the courts have always emphasised the
doctrine of social justice, which is founded on the basic ideal of socio-economic equality as enshrined in the
preamble of the Constitution.
In E.S.I. Corporation v R.K. Swamy,41 it was observed by the Supreme Court that while construing welfare
Page 2 of 5
legislation like the E.S.I. Act and the notification issued thereunder a liberal construction should be placed on their
provisions so that the purpose of the legislation may be allowed to be achieved rather than frustrated or stultified.
In Regional Executive v Fancy Food42 and in G.L. Hotels Ltd. v Sarin,43 it was observed that a definition in a
welfare statute should be construed broadly and liberally in consonance with the object of the Act.
In Secretary, HSEB v Suresh,44 the question before the Court was whether contracted safai
karamcharis(Sanitation workers) would qualify as employees under the Contract Labour (Regulation & Abolition)
Act, 1970. The controversy arose when a reference under Section 10 of the Industrial Disputes Act, 1947, was
challenged for want of jurisdiction, as the aforementioned workers status as employees was contested. The Court
held in favour of the workers, and on the object and interpretation of labour statutes, observed:
The feudal exploitation and draconian concept of law ought not to outweigh the basic structure of the Constitution,
or its socialistic status. Ours is a socialist State as the Preamble depicts and the aim of socialism, therefore, ought
to be to distribute the common richness and the wealth of the country in such a way so as to sub-serve the need
and the requirement of the common man. Article 39 is a pointer in that direction. Each clause under the Article
specifically fixes certain social and economic goal so as to expand the horizon of benefits to be accrued to the
general public at large. In particular reference to Article 39 (a) it is seen that the State ought to direct its policies in
such a manner so that the citizens - men and women equally, have the right of an adequate means of livelihood
and it is in this perspective again that the enactment in the statute book as noticed above (The Contract Labour
(Regulation & Abolition) Act 1970) ought to be read and interpreted so that social and economic justice may be
achieved and the constitutional directive be given a full play.
In B Shah v Presiding Officer, Labour Court,45 the Court was considering the definition of week in the Maternity
Benefits Act, 1961, to ascertain whether a female employee on maternity leave would receive wages for seven days
per week or for six days (no wages for Sundays). The Court held that the expression included Sundays as well, and
observed:
In interpreting provisions of beneficial pieces of legislation intended to achieve the object of doing social justice to
women workers employed in the plantations and which squarely fall within purview of Article 42 of the Constitution,
the beneficent rule of construction, which would enable the woman worker not only to subsist but also to make up
for her dissipated energy, nurse her child, preserve her efficiency as a worker and maintain the level of her
provision efficiency and output, has to be adopted by the court.
In Surendra Kumar Verma v Central Govt. Industrial Tribunal-cum-Labour Court,46 the respondent Bank
terminated the services of the appellants on the ground that they could not pass the prescribed tests for their
permanent absorption in its service. On reference the Labour Court held that the Banks action in terminating their
services (except in the case of two workmen) was in violation of section Section 25F of the Industrial Disputes Act,
1947 and, therefore, was invalid and inoperative. The Labour Court, however, refused to order their reinstatement
with full back wages on the ground that reinstatement would have the effect of equating the terminated employees
with workmen who had qualified for permanent absorption by passing the test. Consequently the Court directed that
the terminated employees be paid six months salary as compensation in addition to retrenchment compensation.
This rationale of the Labour Court was not accepted by the Apex Court which pointed out that the terminated
workmen can never be on par with the others since reinstatement would not qualify them for permanent absorption
but they would continue to be temporary liable to be retrenched. On the need to observe a liberal interpretation of
labour legislation the Court ruled that semantic luxuries (were) misplaced in the interpretation of bread and butter
statutes.
In Geetha v Union of India,47 the court was concerned with the interpretation of Section 124A of the Railways Act,
1989, which dealt with compensation on account of an untoward accident. The claim of the appellant was disputed
on the ground that deceased was not abona fide passenger. The court noted that the ambit of the definition of the
word passenger was to include a wide variety of people, i.e. those who had a platform ticket etc. Given that the
deceased was travelling with valid documents of authorisation issued by the military, the claim of the appellant was
upheld.
In Color-Chem Ltd v AL Alaspurkar,48 the Court was considering an appeal against an order of the Labour Court
which granted 40%-50% back wages to employees whose employment had been terminated for lack of diligence.
Page 3 of 5
The employees had brought a claim of unfair labour practices under the Maharashtra Recognition of Trade Union &
Prevention of Unfair Labour Practices Act, 1971. The management contended that the Labour Courts reliance on
Schedule IV of the Act, by which the back wages had been awarded, was misplaced. In partially allowing the
appeals from both sides, the Court held:
Where an Act is conceived to establish industrial peace and harmony between the employers and the employees
and the object would not be achieved or advanced by adopting a technical interpretation, it might further embitter
the relations between the management and labour and create more difficult situations for both. It is true that a
statute or for that matter even particular section, has to be interpreted according to its plain words and without doing
violence to the language used by the legislature. But it is also true that if two constructions are possible, the one
which furthers the policy and object of the Act and is more beneficial to the employee, has to be preferred.
In Kirloskar Brothers Ltd v Employees State Insurance Corporation,49 the Court was considering whether the
Employees State Insurance Act, 1948, would apply to the regional offices of the appellant at Secunderabad and
Bangalore. The Court held that the Act would apply to the regional offices, considering the statute was a labour
welfare legislation. The Court observed:
Economic democracy aids consolidation of social stability and smooth working of political democracy. For welfare of
the employees, the employer should provide facilities and opportunities to make their life meaningful. The employer
must be an equal participant in evolving and implanting welfare schemes. Article 39 [e] of the Constitution enjoins
upon the State to secure health and strength of the workers and directs that the operation of the law is that the
citizens are not forced by economic necessity to work under forced labour or unfavorable and unconstitutional
conditions of work. It should, therefore, be the duty of the State of consider that welfare measures are implemented
effectively and efficaciously. Article 42, therefore, enjoins the State to make provision for just and human conditions
of work and maternity relief. Article 47 imposes a duty on the State to improve public health. Economic security and
social welfare of the citizens are required to be reordered under rule of law.
In Madhya Pradesh Mineral Industry Assn v Regional Labour Commr,50 the validity of a notification under Section
5 (2) of the Minimum Wages Act, 1948, was made, the import of which was to fix minimum wages for workers
employed for stone-breaking and stone-crushing work during mining operations. The notification was challenged
because under Part 1, Item 8 of the Schedule to the Act, employees working in quarries were covered. It was
argued by the appellant that although the Act was a beneficial legislation, the employees covered by the notification
were involved in stone-crushing and stone-breaking works as incidental to mining, and hence, there was no
legislative power with the State to pass such a notification. The Court agreed with the appellant, and held the
notification to beultra vires the Act. The Court observed:
It is true that the provision of the Minimum Wages Act, 1948, are intended to achieve the object of doing social
justice to workmen employed in the scheduled employments by prescribing minimum rates of wages for them, and
so, in construing the said provisions, the court should adopt what is sometimes described as a beneficent rule of
construction. If the relevant words are capable of two constructions, preference may be given to that construction
which helps to sustain the validity of the impugned notification, but it is obvious that an occasion for showing
preference for one construction rather than the other can legitimately arise only when two constructions are
reasonably possible, not otherwise.
In State v A.H. Bhiwandiwalla,51 the Court had to consider whether a failure to submit to the Chief Inspector of
Factories an application for registration of the factory and grant of licence as required under Section 6 of the
Factories Act, 1948, read with Rule 4 of the Bombay Factories Rules, 1950, would result in prosecution, and
whether such prosecution would be barred by limitation. The Court held as follows:
In our opinion, it would be impossible to accede to the argument that the failure to comply with requirements of such
paramount importance is not intended to be punished within the meaning of Section 92 of the Act. Even if the words
used in Rule 4 may, and can, be improved upon, the object of the provision is clear, and in construing the words
used in Rule 4 it would be open to us to bear in mind this object. In regard to remedial and beneficent legislation like
the Factories Act, what is sometimes described as the equitable construction of the statute is permissible and it
would be our duty to adopt such construction of the statute as shall suppress the mischief and advance the remedy.
In Kanpur Textile Finishing Mills v Regional Provident Fund Commr,52 it was argued by the appellant that prior to
Page 4 of 5
an amendment that included a particular category of textiles into the Schedule to the Employees Provident Funds
Act, 1952, the appellants textile mills did not come under the purview of the Act, and hence the appellant did not
have to fulfil the obligations imposed on it by the Act in the capacity of an employer. Disagreeing with the appellant,
the Court interpreted the word textiles to include the mills of the appellant and further held that the amendment was
only clarificatory. The Court observed:
Where in keeping with the policy of the State, that is, to establish a welfare state with the directive principles of state
policy as contained in Part IV of the Constitution, a statute is enacted by parliament for the benefit of workers, a
beneficial construction must be put upon it. As the object of the Act is to provide for a provident fund for workers, it
is the duty of the courts to give effect to that intention and not to put a very narrow construction which may defeat
the object of the Act.
In Allahabad Bank v All India Allahabad Bank retired Employees Association,53 the question before the Court was
whether the retired employees of appellant bank are entitled to payment of gratuity under the provisions of the
Payment of Gratuity Act, 1972. The Bank resisted payment of gratuity by arguing that the members of the
Association had voluntarily opted for pension scheme, as a result thereof, they were not entitled to receive gratuity
as well since they have already exercised their option claiming benefit of pension. The Court repelled this
contention, and observed:
Remedial statutes, in contra distinction to penal statutes, are known as welfare, beneficient or social justice oriented
legislations. Such welfare statutes always receive a liberal construction. They are required to be so construed so as
to secure the relief contemplated by the statute. It is well settled and needs no restatement at our hands that labour
and welfare legislation have to be broadly and liberally construed having due regard to the Directive Principles of
State Policy. The Act with which we are concerned for the present is undoubtedly one such welfare oriented
legislation meant to confer certain benefits upon the employees working in various establishments in the country.
In Regional Provident Fund Commr v Hooghly Mills Co. Ltd.,54 the question before the Court was whether the
employer of an establishment which was an exempted establishment under the Employees Provident Funds and
Miscellaneous Provisions Act, 1952, was subject to the provisions of Section 14B of the said Act whereby in cases
of default in the payment of contribution to the provident fund, proceedings for recovery of damages can be initiated
against the employer of such an exempted establishment. The Court held that Section 14B would apply, and in
From the aforesaid discussion it is clear that this case calls for interpretation of certain statutory provisions. It is not
disputed, and possibly cannot be disputed, that the Act is a social welfare legislation...If we look at the modern
legislative trend we will discern that there is a large volume of legislation enacted with the purpose of introducing
social reform by improving the conditions of certain class of persons who might not have been fairly treated in the
past. These statutes are normally called remedial statutes or social welfare legislation, whereas penal statutes are
sometime enacted providing for penalties for disobedience of laws making those who disobey, liable to
imprisonment, fine, forfeiture or other penalty.
38 . (1995) SCC 1385 (L&S), (1995) 6 SCC 326, (1995) 6 JT 625 (SC).
39 . AIR 1977 SC 842; Ramesh Singh v Chinta Devi (1994) 1 BLJR 464, (1994) 1 Pat LJR 650; Skandia Insurance Co Ltd
v Kokilaben Chandravadan AIR 1987 SC 1184 [LNIND 1987 SC 359]; overruling Dwarka Prasad v Sushila Devi AIR
1983 Pat 246; Shankar Rao v Babulal Fouzdar AIR 1980 MP 154 [LNIND 1980 MP 89]; Regional Officer United India
Insurance Co Ltd v Member, Motor Accident Claims Triunal, Lakhimpur (1992) 2 Gau LR 391.
40 .Ajaib Singh v Sirhind Co-op Marketing-cum-Processing Service Society Ltd (1999) 6 SCC 82 [LNIND 1999 SC 366];
SK Verma v Mahesh Chandra (1983) 4 SCC 1242.
41 . AIR 1994 SC 1154.
42 . AIR 1995 SC 1620 [LNIND 1995 SC 1394].
43 . (1993) 4 SCC 363 [LNIND 1993 SC 635].

Page 5 of 5
44 . (1999) 3 SCC 601 [LNIND 1999 SC 1342]; GB Pant University of Agriculture and Technology, Pantnagar, Nainital v
State of Uttar Pradesh (2000) 7 SCC 109 [LNIND 2000 SC 1098].
45 . AIR 1978 SC 12 [LNIND 1977 SC 293].
46 . AIR 1981 422.
47 . AIR 2005 Ker 33 [LNIND 2004 KER 402].
48 . (1998) 3 SCC 192 [LNIND 1998 SC 152]; BD Shetty v Ceat Ltd (2002) 1 SCC 193 [LNIND 2001 SC 2440].
49 . (1996) 2 SCC 682 [LNIND 1996 SC 187].
50 . AIR 1960 SC 1068 [LNIND 1960 SC 114], p 1071; Chebrolu Nagabhushanam v Rachapudi Seetharamiah AIR 1961
AP 224 [LNIND 1960 AP 170].
51 . AIR 1955 Bom 161 [LNIND 1954 BOM 88].
52 . AIR 1955 Punj 130.
53 . (2010) 2 SCC 44 [LNIND 2009 SC 2105].
54 . (2012) 2 SCC 489 [LNIND 1991 SC 173].
End of Document
Conclusion
NS Bindra
Welfare Statutes
Conclusion
In liberally construing welfare or beneficent legislations the Courts have proceeded in the following ways. One
where the purpose has influenced the text of the statute thus for example the Delhi High Courts interpretation of
Section 18 of the Hindu Adoption and Maintenance Act where the Court has looked at the beneficent purpose of the
legislation and let that purpose determine what meaning it should give to the text but the relationship with the text
has been retained. The Apex Courts interpretation in Daga is in the same genre. The other is where the purpose
rules and relying on that purpose relief has been accorded under the statute. The Allahabad High Court judgement
on PLIA could be seen as an example of this approach. The third kind of outlook is where the Courts are amenable
to defer to purpose provided the text read as a whole can sustain such a meaning. The Andhra Pradesh High
Courts refusal to provide the relief of maintenance to the second wife illustrates this approach. The above analysis
shows that there is a range of ways in which Courts apply the rule of liberally interpreting welfare legislations.
End of Document
Introduction
NS Bindra
Expropriating, Emergency, and Penal Statutes
Introduction
The previous chapter addressed the interpretation of statutory initiatives where the State provided for the welfare of
the people. This chapter deals with statutes which deprive people of their goods, property or liberty. Such
deprivation may be effected through expropriatory or emergency legislations. Such denial may also occur through
penal statutes, which deprive individuals of their liberty or punish persons for indulging in proscribed behavior. This
consequence of denial prompts the strict interpretation of the statutes dealt with in this chapter.
End of Document
Expropriating Statutes
NS Bindra
It is undoubtedly in the power of the legislature to take away a vested right of any subject, but it is a recognised rule
of construction that in order to hold that the Act has had this effect, it must be necessary to find the indication of
such an intention in the plain words of the Act.1 The principle of law as enunciated in various authorities is that
statutes imposing restrictions upon the subjects rights should be strictly construed and such restrictions should not
be extended beyond what the words used actually cover.2 An expropriating statute has to be construed, if the
language allows it, in favour of the person whose property is sought to be acquired.3 Where the expropriation is for
a public purpose and not for private gain, still the owner is deprived of his property, the rule has long been accepted
in the interpretation of statutes that they are not to be held to deprive individuals of property without compensation
unless the intention to do so is made quite clear. It has been repeatedly held by the board that an intention to
alienate private rights without compensation should not be imputed to the legislature, unless expressed in clear
terms.4 In order to affect the rights of persons who have got an interest in holding, so as to debar them from
preventing the total loss of the holding, the statute must either expressly or by plain implication say that they are so
debarred.5 Now, it is well-settled that where special provisions are made by the legislature for compulsory
acquisition of property belonging to a person, the provisions of the law must be strictly complied with.6 The court
ought not to strain an Act in favour of an interference with private rights which is not justified by the primary sense of
the language.7 However, the presumption of strict construction does not extend to the procedural part of the
enactment which has to be interpreted in such a way as to make the procedure provided effective.8
In State of Madhya Pradesh v Vishnu Prasad Sharma,9 the question before the Court was whether declarations
under Section 6 (Declaration that land is required for a public purpose) could be issued for different parts of the
land, or whether one declaration had to be issued after a notification under Section 4 (Publication of preliminary
notification) of the Land Acquisition Act, 1894. The Court held that the Act could have envisaged that the
government could issue declarations for different portions of the land, as it might cause unnecessary hardship to
the owner in cases where he constructs or works on the property not covered by one declaration under Section 6 .
The Court observed:
As the Act is an expropriatory Act, that interpretation of it should be accepted which puts the least burden on the
expropriated owner. The Government could, of course, always make a complete plan at a time and I am unable to
hold that the Act contemplated that it need not do so and go on making declarations from time to time as its plan
goes on taking shape even though the result might be to increase the hardship of persons whose lands are taken
away.10
In Canbank Financial Services Ltd v Custodian,11 the Court was interpreting Section 2 (a) of the Benami
Transactions (Prohibition) Act, 1988, which defined a benami transaction, to decide whether the appellant company
had indulged in any. The Court held that since there was no intention on the part of the appellant company to enter
into a benami transaction, it would not be subject to the penal provisions under the Act. When a wide construction
of the definition was suggested, the Court observed:
The Benami Transaction Act is not a piece of declaratory or curative legislation. It creates substantive rights in
favour of benamidars and destroys substantive rights of real owners who are parties to such transactions and for
Page 2 of 2
whom new liabilities are created by the Act. A statute which takes away the rights of a party must be strictly
construed.
1 . Badri Narayan Singh v Ganga Singh AIR 1937 Pat 605; Cripps, Compensation, eight edn, p 1.
2 . Zamindara Bank v Suba AIR 1924 Lah 418, pp 419-20; Sayed Mohommad Beevi Amma v Mathai Davasia (1960) ILR
Ker 610, (1960) Ker LT 163, (1960) Ker LJ 343; Palani Goundan v Peria Goundan AIR 1941 Mad 158 [LNIND 1940
MAD 319]; Dhanmull Sowcar v Syed Ali Mahommad AIR 1969 Mad 214 [LNIND 1968 MAD 41]; Gujarat Electricity
Board v Girdharlal Motilal AIR 1969 SC 267 [LNIND 1968 SC 194]; Gupta KL v Municipal Corpn of Greater Bombay
AIR 1968 SC 303 [LNIND 1967 SC 237]: powers exercised which make inroads into private properties of
individualscourt is bound to exercise caution and consider the question strictly; Hari Singh (Dr) v EF Deboo AIR 1969
Guj 349 [LNIND 1969 GUJ 68]; Horam Singh v District Judge, Moradabad (1979) All LJ 85.
3 . Kedar Prasad Singh v Sita Saran Singh (1963) BLJR 198; Horam Singh v District Judge, Moradabad (1979) All LJ 85.
4 . Australia Commonwealth v Hazeldeli AIR 1921 PC 224, p 227; quoting Commrs of Public Works (Cape Colony) v
Logen [1903] AC 335 (PC); Inglewood Pulp and Paper Co Ltd v New Brunswick Electric Power Commr AIR 1928
PC 287, p 290; AG De Keysers v Royal Hotel [1920] AC 508, p 576.
5 . Sailaja Sundari v Suraj Kanta AIR 1929 Cal 133; Umachurn Baig v Ajadunesa Bibi (1886) ILR 12 Cal 430.
6 . Tara Prasad Chaliha v Secretary of State AIR 1930 Cal 471.
7 . Queen-Empress v Harilal (1890) ILR 14 Bom 180.
8 . Horam Singh v District Judge, Moradabad (1979) All LJ 85.
9 . AIR 1966 SC 1593 [LNIND 1966 SC 48], (1966) SCJ 231; Dalchand v District Judge, Mathura (1967) All LJ 48,
(1967) All WR 141 (HC): narrow and literal construction refused.
10 . Khub Chand v State of Rajasthan AIR 1967 SC 1074 [LNIND 1966 SC 152].
11 . (2004) 8 SCC 355 [LNIND 2004 SC 892].
End of Document
Emergency Legislation and Public Order
NS Bindra
Where the provisions of a statute are of exceptional character meant to be in force for a specified period during
which the legislature thought it advisable and expedient to provide for extraordinary remedies which are inroads
upon the freedom of action of a particular class of persons, such provisions have to be construed strictly in
accordance with the words actually used by the legislation and they cannot be given an extended meaning.12
Legislature enacted for the purpose of alleviating grave conditions which result from economic disaster and public
calamity is deserving of a generous interpretation so that its purposes may be accomplished.13 It is a profound
mistake for courts of justice, in construing emergency legislation introduced for the protection of public safety, to
give effect to the plain and natural meaning of the words used on some supposed reluctance of the enacting
authority to interfere with individual liberties and vested rights.14
Sutherland observed:15
The courts have been justly slow to allow exclusion from the Selective Service Act, unless exclusions are clearly
within the letter of the statute. Likewise, legislation pertaining to war production must not be impeded by technical
interpretation. In time of war, criminal statutes pertaining to national defence and the unimpaired conduct of the war
should not be given the strict construction which is ordinarily applied to penal statutes; and it has not been
uncommon for the courts to recognise that a statue may have a different meaning in time of war from that it does
have in time of peace...Legislation enacted for the purpose of preserving16 the security and rights of those
engaged and participating in defence and war efforts must be given an extended interpretation. A statute of this
nature should be liberally construed in favour of the rights of men engaged in military service absorbed by the
exacting duties requires of him and unable to attend to matters of private business. In addition, legislation
undertaking to reward and repay those who have contributed by energy and even their lives in the service should
be given unselfish construction.
Lord Macmillan in Liversidge v Anderson,17 in interpreting the words of Regulation 18B of the Defence (General)
Regulation, 1939, observed:
In the first place, it is important to have in mind that the regulation in question is a war measure. This is not to say
that the court ought to adopt in wartime canons of construction different from those which they follow in peacetime.
The fact that the nation is at war is no justification for any relaxation of the vigilance of the courts in seeing that the
law is duly observed, specially in a matter so fundamental as the liberty of the subjectrather the contrary. But in a
time of emergency when the life of the whole nation is at stake it may well be that a regulation for the defence of the
realm may quite properly have a meaning which because of its drastic invasion of the liberty of the subject the
courts would be slow to attribute to a peacetime measure. The purpose of the regulation is to ensure public safety,
and it is right so to interpret emergency legislation as to promote rather than to defeat its efficacy for the defence of
the realm. That is in accordance with a general rule applicable to the interpretation of all statutes or statutory
regulations in peacetime as well as in war time.
Lord Romer in the same case observed:
It was, indeed, said on behalf of the appellant in Greenes case18 that where an Act of parliament is capable of
more than one construction, the courts will adopt that construction which is the least likely to lead to an invasion of
Page 2 of 4
the liberty of the subject. That in general is a very salutary rule, but we are dealing here with an Act passed and
regulations made under it in times of a great national emergency, and in view of this circumstances and of the
objects which that Act and those regulations so plainly had in view, the courts should, in my opinion, prefer that
construction which is the least likely to imperil the safety of this country.19
Justice Holmes while evolving the clear and present danger principle in Schenck v US,20 for the first time on 3
March 1919 proceeded to observe: When a nation is at war many things that might be said in time of peace are
such a hindrance to its efforts that their utterance will not be endured so long as men fight and that no court could
regard them as protected by any constitutional right. The rule applicable to all statutes or statutory regulations in
war or in peace is to interpret emergency legislation so as to promote rather than defeat its efficiency for the
defence of the realm.21 As a result of the economic depression, mortgage moratorium laws were enacted in many
states of U.S. in the early thirties of this century, and in accordance with their obvious objectives, the courts have
tended to give them a liberal interpretation in favour of the hard-pressed debtors.22 It is imperative that legislation
providing for national defence and the prosecution of war shall be liberally construed to accomplish its important
objectives.23
In Sweester v Emerson,24 the court observed:
A public statute of this character which relates to the vital question whether the military power of the government
shall be potential and effective in the hands of the constitutional authorities or is to be contingent upon the option of
the constituent members of the lawful military organisations, is one to be determined under the broad rules of lawful
construction.
Illustrations
In Emperor v Shreekant Pandurang Ketkar,25 the Court was considering the the validity of the Special Criminal
Courts Ordinance, 1942. It was argued by the prosecution that the Ordinance could be construed to apply
retrospectively, and hence, the accused could be tried by the special courts constituted under the Ordinance. The
Court repelled this contention, and held that emergency legislation, like ordinary statutes, ought to be construed
prospectively, unless there was something explicit to the contrary.
Beaumont CJ. observed:
If emergency legislation is not to be construed with a presumption in favour of preserving the liberty of the subject, I
fail to see why it should be construed with a presumption in favour of preserving vested rights. In my opinion, the
normal presumption that a statute is not intended to interfere with vested rights has no application to the
construction of this ordinance.
In Sushil Kumar Bose v Emperor,26 the Court was considering the same Ordinance as the previous case. It was
argued that there was no circumstance of emergency, and in any case, the delegation of power to constitute Courts
was improper. The Court accepted these arguments, and generally observed on the interpretation of emergency
legislation:
An ordinance or an emergency measure is usually drafted in hurry to meet unexpected contingencies or to meet
some immediate need. In view of such circumstances and the speed with which such a legislation is brought out, it
would be unfair to criticise it in the way that a statute might be criticised. The proper course is to take such an
ordinance as a whole and in the light of the surrounding circumstances construe it so as to give effect to what
appears to be its proper meaning.
In Rex v Nain Sukh Das,27 the Court was construing the United Province (Temporary) Control of Rent and Eviction
Act, 1917, to adjudicate whether the respondent had been properly convicted not giving an intimation of the falling
vacant of the first floor of his house to the District Magistrate. It was argued by the respondent that the property had
not fallen vacant, since it had to be used by his son and daughter-in-law. The Court rejected this contention, and
sought to construe the provision strictly. It observed:
Further, we may note that this Act like so many others was passed by the legislature as an emergency measure, to
Page 3 of 4
meet the situation arising out of the great shortage of housing accommodation in the province. The central object of
the Act is to invest the District Magistrate with powers to control the letting, or subletting of houses within the
territorial jurisdiction. It is well-settled that an enactment of the character should be interpreted, as far as possible, in
conformity with the fundamental canons of interpretation of a statute, in such a manner as to promote the object, or
the main purpose of the enactment.
In Abdul Khadar v Union of India,28 the Court, on the contention that the COFEPOSA was an emergency
legislation and, therefore, the provisions of the Act had to be construed as far as possible in furtherance of the
policy and object of the Act and whatever statutory provisions are ambiguous, a construction which is favourable to
the state should be adopted, was not decided.
In Golam Hussain v Commissioner of Police,29 pursuant to an order of detention under Section 3 (1)(a)(ii) read
with Section 3 (2) of the Maintenance of Internal Security Act, 1971, the petitioner was arrested for hurling bottles,
brickbats, and bombs indiscriminately on a group of persons on different dates. The question before the Court was
whether not specifying the period in the detention order would make it ultra vires the Act. The Court, relying inter
alia on the nature of MISA as an emergency measure, held that the detention order ought to be read as valid for 12
months.
Similarly, in Bhut Nath Methe v State of West Bengal,30 a detention order under the same Act was the subject of
challenge. The petitioner argued that since he had been acquitted at trial, his detention could not be ordered. The
Court held that since the MISA was an emergency legislation, and for the purpose of maintaining public order, the
acquittal at trial was not of any consequence in determining the vires of the order of detention.
Repeal on Termination of Emergency
The general rule is that on the expiration of a temporary provision which repeals an earlier Act, the earlier Act is
revived after a temporary provision is spent. This rule will prevail except in cases where the intention of the
temporary Act is clearly expressed for the purpose of repealing the earlier act permanently.31
In Panna Lal Lahoti v State of Hyderabad,32 the question before the Court was whether the Code of Criminal
Procedure would apply to criminal proceedings that commenced prior to the application of the CrPC to the State of
Hyderabad. It was contended that the application of the Defence of Hyderabad Rules would exclude the application
of the CrPC. The Court repelled this contention, and held:
The legislature may make temporary laws for the purpose of meeting an emergency in which case it may fix the
period of expiration either expressly or it may fix no period and in such a case the temporary laws may expire
otherwise. They cannot be allowed to outlast the emergency which brought it forth. The Defence of Hyderabad
Regulation held to have lapsed on the termination of the emergency.
War-time Legislation
The rule of liberal construction of such legislation does not apply to its constitutionality.33 In Newandmal v
Chandumal,34 the Court was construing the Sind Rent Control (Residential Premises) Order, 1942. It was
observed:
But we do not think the words of Control Orders passed in the stress and urgency of war to be construed with that
strictness and precision which applied to statutes passed after long consideration, discussion and debate. Words
must be construed reasonably, their ordinary grammatical meaning must be given to them and the purpose of the
Order must be kept in mind.
12 . KC Momin v Indumati Potdar AIR 1958 SC 444 [LNIND 1958 SC 15], p 447: affecting landlords freedom of action.
13 . Sutherland, Statutory Construction, third edn, vol 3, p 442.

Page 4 of 4
14 . Shreekant Pandurang v Emperor AIR 1943 Bom 169, p 174, (1943) ILR Bom 331.
15 . Sutherland, Statutory Construction, thirdedn, vol 3, pp 446-48.
16 . Sutherland, Statutory Construction, third edn, vol 3, pp 447-48.
17 . [1942] AC 266 , [1941] 3 All ER 338; Keshav Talpade v KE 1943 FCR 49, p 63; PK Tare v Emperor (1943) ILR Nag
154, AIR 1943 Nag 26, p 29, per Vivian Bose J; Sitao Jholia v Emperor (1943) ILR Nag 73, AIR 1943 Nag 36.
18 . R v Home Secretary, ex p Green [1941] 3 All ER 104 (DS).
19 . Basanta Chandra v Emperor (1944) ILR 23 Pat 968, AIR 1945 Pat 44, p 50.
20 . 249 US 47, p 52, 63 L Ed 470, p 473.
21 . Nishi Kanta Basu v Province of West Bengal (1949) 53 CWN 9; relying on Rex v Halliday [1917] AC 260; Ratan Roy v
State of Bihar AIR 1950 Pat 332, p 344, para 7.
22 . Sutherland, Statutory Construction, third edn, vol 3 p 443.
23 . Ibid p 441.
24 . 236 Fed 161, p 163 (CCA First 1916).
25 . (1943) 45 BOMLR 323
26 . AIR 1943 Cal 489, p 493.
28 . 90 LW 501.
29 . AIR 1974 SC 336 [LNIND 1973 SC 288].
30 . AIR 1974 SC 806 [LNIND 1974 SC 31].
31 . Govindaswami Naidu v Addl Commercial-tax Officer (1962) ILR 2 Mad 294.
32 . AIR 1954 Hyd 129.
33 . Union of India v Deben Adhicary AIR 1979 Cal 230 [LNIND 1979 CAL 37].
34 . AIR 1947 Sind 146, (1946) ILR Kant 329.
End of Document
Penal Statutes
NS Bindra
Penal Statutes
Strict Construction
From early times it has been held that penal statutes must be strictly construed.35 The degree of strictness applied
to the construction of a penal statute depended in great measure on the severity of the statute.36 Human
experience has shown that legislators are generally solicitous of individual liberties and desire to interfere with them
as little as possible. Thus the rule of interpretation has been evolved according to which a penal statute should be
very strictly construed.37 And they should be construed in favour of the subject.38 However, if there is no
ambiguity, and the act or omission in question falls within the mischief of the statute, the construction of a penal
statute differs little, if at all, from that of any other.39 True, penal statutes should always be very strictly construed.
However, it must be remembered that no rule of construction requires that a penal statute should be unreasonably
construed or construed so as to defeat the obvious intention of the legislature or construed in a manner as would
lead to absurd result; on the other hand, it is of the utmost importance that the court would endeavour to ascertain
the intention of the legislature and to give effect thereto.40 A strict construction requires, at least, that no case shall
fall within a penal statute which does not comprise all the elements which, whether, morally material or not, are in
fact made to constitute the offence as defined by the statute.41 As illustrative of the rule of strict construction, it has
been said that while remedial laws may extend to new things not in esse at the time of making the statute, penal
laws may not.42 But this degree of strictness may be regarded as extreme.43 Though regulations contained in an
Act are enacted on the economic and financial interest of the country, the rigour and sanctity of these regulations
should be maintained; even then it should not be forgotten that Customs Act being penal deserves to be construed
as pointed out by Plowman J, in Re HPC Production Ltd:44
It is, therefore, clear that their lordships relied on the rule of construction holding that penal provision has to be
strictly construed and held that where the provision itself did not require the value to be supplied for any error in
respect of that, nor penalty could be imposed; besides in order to interpret a particular provision and to infer the
intention of the legislature, reliance could be placed on the objects and reasons stated in the bill when it is
presented to the legislature.45
In State of Orissa v Genesh Chandra Jew,46 the question before the Court was whether police officers, against
whom a complaint had been filed for causing injuries, could only be prosecuted after seeking sanction under
Section 197 (1) of the Criminal Procedure Code, 1973. The Section provided that when any person who was a
public servant not removable was accused of any offence alleged to have been committed by him while acting in
the discharge of his official duty, no Court could take cognizance of the offence except with the previous sanction of
the State government (in this case). The Court held that sanction under Section 197 was required, and proceedings
which were going on without this sanction were vitiated. On the construction of Section 197, the Court observed:
Official duty therefore implies that the act or omission must have been done by the public servant in course of his
service and such act or omission must have been performed as part of duty which further must have been official in
nature. The Section has, thus, to be construed strictly, while determining its applicability to any act or omission in
course of service. Its operation has to be limited to those duties which are discharged in course of duty. But once
any act or omission has been found to have been committed by a public servant in discharge of his duty then it
must be given liberal and wide construction so far its official nature is concerned. For instance a public servant is
not entitled to indulge in criminal activities. To that extent the Section has to be construed narrowly and in a
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Penal Statutes
restricted manner. But once it is established that act or omission was done by the public servant while discharging
his duty then the scope of its being official should be construed so as to advance the objective of the Section in
favour of the public servant. Otherwise the entire purpose of affording protection to a public servant without sanction
shall stand frustrated.
In Shridhar v State of Himachal Pradesh,47 while deciding whether the village headman of a neighbouring village
ought to be convicted under Section 176 of the Indian Penal Code, 1860, for not furnishing information to the district
magistrate about a case of suicide in the village, the Court was called upon to interpret the expression near
occurring in Section 45 (1) (d) of the Code of Criminal Procedure, 1898. If interpreted widely, it would have meant
that the village headman was rightly convicted for not reporting the matter to a district magistrate in whose
jurisdiction the neighbouring village fell. The Court held that such an interpretation would be stretching the
expression too widely, and that the villages could not be considered near if the provision was strictly construed.
Hence, the trial was vitiated.
In State v Udit Narain,48 the Court had to consider the import of the expression paper occurring in Section 3 of the
Press and Registration of Books Act, 1867, to decide whether it covered notices or not. The Court observed that a
penal provision ought to be clear and unequivocal before effect could be given to it. On the basis of this restrictive
doctrine of interpretation, the Court held that the aforementioned expression was intended to cover all those papers
which could not be defined as books or newspapers but which had historical, cultural, or literary value. It did not
include the notice announcing the holding of a public meeting or oppose the transfer of the deputy commissioner.
However, in Maharaja Book Depot v State of Gujarat,49 the Court was called upon to interpret the same expression
occurring in Section 2 (a)(vii) of the Essential Commodities Act, 1955, to decide whether it would include exercise
books. If such an interpretation were accepted, then penal provisions of the Act would be attracted against the
defaulting company. Repelling an argument of strict construction of the aforementioned provision, the Court
observed:
It would thus appear clear that it is only when there is some equivocation or ambiguity about a word or provision
that the rule of strict construction or narrow construction in favour of the subject is to be applied but if there is no
ambiguity and the act or omission falls clearly within the mischief of statute then the construction of a penal statute
will not differ from that of any other.
Thus, in Chengadi Venkataramadas v Bonnam Latchann,50 the Andhra Pradesh High Court held that in
interpreting a provision of law which had penal consequences, the Court ought to give a strict interpretation and
construe the provision within the terms specified therein. These observations were delivered by the Court while
considering the provisions of Section 11 of the Madras Revenue Recovery Act, 1864, which empower distraint of
standing crops for non-payment of arrears of revenue. Based on the observations, the Court held that a distrainer
had no right to distrain crops which were already cut and served, since as soon as the crops were cut, they ceased
to be standing crops within the meaning of Section 11.
In DCM Financial Services Ltd v J.N. Sareen,51 the Court was considering whether a director who signed a post-
dated cheque, and had resigned by the time the cheque became valid for encashment, could be arraigned as an
authorized signatory under Section 141 of the Negotiable Instruments Act, 1881. The Court held that the accused
could not be arraigned as an accused, since the expression at the time of dishonour ought to be construed strictly,
since the implications associated with Section 141 were penal. The Court observed:
Section 141 of the Act provides for a constructive liability. A legal fiction has been created thereby. The statute
being a penal one, should receive strict construction. It requires strict compliance of the provision. Specific
averments in the complaint petition so as to satisfy the requirements of Section 141 of the Act are imperative. Mere
fact that at one point of time some role has been played by the accused may not by itself be sufficient to attract the
constructive liability under Section 141 of the Act.
In Aneeta Hada v Godfather Travels & Tours Pvt Ltd,52 the Court was considering whether an authorised signatory
of a company would be liable for prosecution under Section 138 of the Negotiable Instruments Act, 1881, and
Section 141 of the Information Technology Act, 2000, without the company being arraigned as an accused. The
Court applied the test of strict construction, and held that the authorised signatory could not be prosecuted if the
company was not arraigned as an accused. In this regard, the Court observed:
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Penal Statutes
It is to be borne in mind that Section 141 of the Act is concerned with the offences by the company. It makes the
other persons vicariously liable for commission of an offence on the part of the company. As has been stated by us
earlier, the vicarious liability gets attracted when the condition precedent laid down in Section 141 of the Act stands
satisfied. There can be no dispute that as the liability is penal in nature, a strict construction of the provision would
be necessitous and, in a way, the warrant...here has to be strict observance of the provisions regard being had to
the legislative intendment because it deals with penal provisions and a penalty is not to be imposed affecting the
rights of persons whether juristic entities or individuals, unless they are arrayed as accused. It is to be kept in mind
that the power of punishment is vested in the legislature and that is absolute in Section 141 of the Act which clearly
speaks of commission of offence by the company...Applying the doctrine of strict construction, we are of the
considered opinion that commission of offence by the company is an express condition precedent to attract the
vicarious liability of others.
No Extension by Implication
It is elementary that in dealing with a penal provision the rule of strict construction require that the language shall be
construed so that no case shall be held to fall within it which does not fall within the reasonable interpretation of the
enactment.53 A penal statute should not suffer from vagueness. An order of a penal nature must be clear and
specific in its language and must not leave anything to presumption. If a member of the public is prohibited from
doing an act, he must be prohibited clearly and in an unambiguous language. The prohibition cannot be left to be
implied. Courts should always guard against tendency to take recourse to the theory of common parlance which
has no application to penal statute.54 The Court should consider not only the mischief intended to be remedied, but
also on the other side, it ought to consider that persons are not to be made subject to penalties, unless the offence
charged is clearly brought within the purview of the statute. No one can be brought within a statute unless the case
falls within the letter and the spirit of the statute.55 Where an enactment entails penal consequences, no violence
should be done to its language to bring people within it but rather care must be taken to see that no one is brought
within it, who is not within the express language.
In Bishamber Dayal v State of Uttar Pradesh,56 the Court was considering whether the appellants, who owned a
flour mill, could be convicted under Section 7 of the Essential Supplies (Temporary Powers) Act read with Clause 8,
U. P. Flour, Rice and Dal Mills Control Order, 1948. The judge remarked that the expression used in Clause 3 was
flour mill, which on a strict construction, would mean that the mill or the worker responsible could be prosecuted.
The Court refused to extend the expression to mean the owners of a flour mill, since the provision was of a penal
nature.
In State of Maharashtra v Nanaji Kalu Jadhav,57 the Court was considering an order of conviction under Section 14
(g)(ii) of the Bombay State Reserve Police Force Act, 1951, for desertion of duty by the respondent for visiting his
family due to the receipt of his childs accident. The question was whether the accused was on active duty, as
defined in Section 2 (a) of the Act, at the time of visiting his family. It was argued that at the relevant time, the
accused ought to be deemed to be on active duty. Repelling this contention, the Court held:
It is not possible to accept such a deeming effect to be given to an express provision of law defining active duty.
Furthermore, any expansion of the said definition or any deeming fiction while interpreting an express provision of
law is normally not permissible in a criminal prosecution. The very fact that the prosecution has to go to the length
of giving an artificial extention to an express provision of law indicates that the provision otherwise strictly construed
does not attract the facts and circumstances established by the prosecution. Prosecution and/or conviction therein
cannot be based upon ambiguity or fiction. The accused cannot be put in jeopardy as a result of an artificial
extension of an express provision of law or by conferring upon the said provision a fictional status.
In Sakshi v Union of India,58 the petitioner NGO filed a writ petition in the Supreme Court under Article 32 of the
Constitution, where it pleaded that the Court ought to declare that the definition of rape under Section 375 of Indian
Penal Code, 1860,included all forms of penetration. The petitioner contented that the definition of rape and its
judicial interpretation, which limited it to forcible vaginal penetration violated the spirit of Articles 15, 19, and 21 of
the Constitution. The Supreme Court refused to accept a broad definition of rape, and observed:
It is well settled principle that the intention of the Legislature is primarily to be gathered from the language used,
which means that attention should be paid to what has been said as also to what has not been said. As a
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Penal Statutes
consequence a construction which requires for its support addition or substitution of words or which results in
rejection of words as meaningless has to be avoided. It is contrary to all rules of construction to read words into an
Act unless it is absolutely necessary to do so. Similarly it is wrong and dangerous to proceed by substituting some
other words for words of the statute. It is equally well settled that a statute enacting an offence or imposing a
penalty is strictly construed. The fact that an enactment is a penal provision is in itself a reason for hesitating before
ascribing to phrases used in it a meaning broader than that they would ordinarily bear.
35
. Steel Authority of India Ltd v Bihar Agricultural Produce Market Board AIR 1990 Pat 146; Kent v Whitley (1738) 1 ER
1457 (HL); Camplin v Bullman (1761) 145 ER 755; Att-Gen v King (1818) 146 ER 579; Flether v Lord Sondes (1826) 3
Bing 501, p 580; R v Mitchell (1829) 172 ER 692; Gordon v Dalzell (1852) 21 LJ Ch 206, 51 ER 573; Jeffreys v Higgins
(1853) 21 LTOS 35;
Woodall v Vioght (1860) 157 ER 57; Smith v Wood [1889] 24 QBD 23; Cotterill v Lempriere [189] 24 QBD 634:
strictness of statement is still valuable specially in a case where the result may be highly penal; Reid v Wilson and
Ward [1895] 1 QB 315: the Act imposes penalties and, therefore, must be construed and applied strictly. Kamla Prasad
v King Emperor (1947) 230 IC 160 (Pat); Arab Mihan v Emperor AIR 1942 Sind 167; Chandi Ram v Emperor AIR 1941
Lah 301; Re Gurcharan Prasad Khatri of Benaras (1931) ILR 53 All 445, AIR 1931 All 421: a section in regard to a
penalty, such as s 28 of the Income-tax Act must be strictly construed; The word Income-tax would accordingly not
include super-tax; Rameshwar v Emperor AIR 1931 Nag 177: strict and narrow sense; Ismail Panju v Emperor AIR
1926 Nag 137, (1925) 26 Cr LJ 1115; Re Punvanur Athamu AIR 1925 Mad 239 [LNIND 1924 MAD 181]: criminal
statute has to be rigidly interpreted; Similarly, statutory rules which involve penal consequences for infringement must
be strictly interpreted; Gopal Singh v Crown AIR 1929 Lah 163: rules made under statutory powers enforceable by
penalties are to be construed like other provisions encroaching on the ordinary rights of persons They must, on pain of
invalidity, be not unreasonable, nor in excess of the statutory power authorising them, nor be repugnant to the statute
or to the general principles of the law; Eng Hock v Emperor AIR 1934 Rang 178, p 180; Banshiham Rice Mills Pvt Ltd v
State of West Bengal 1995 AIHC 4851; Satya Narayan Das v Government of India AIR 1995 Ori 253.
37 . Rulia Ram v Rex AIR 1949 All 716 [LNIND 1949 ALL 68]; Collector of Central Excise, Hyderabad v Phoolchand
Mohanlal AIR 1968 AP 103 [LNIND 1966 AP 116]; Jethalal Nandalal v State of Gujarat AIR 1968 Guj 165; Hari Krishna
v State (1980) 17 ACC 43; Dilawar Singh v State of Haryana (1992) 2 Recent Cr R 692 (P&H); SK Salim v State of
West Bengal AIR 1975 SC 602 [LNIND 1975 SC 37]; State of Punjab v Jagdev Singh AIR 1984 SC 444 [LNIND 1983
SC 377]; Vijay Narain Singh v State of Bihar AIR 1984 SC 1334 [LNIND 1984 SC 110].
38 . Jugal Singh v Emperor AIR 1934 Pat 315; Gulati v Lajya Ram Kapur AIR 1967 Punj 79; Hari Krishna v State (1980)
17 ACC 43.
39 . Quoting Maxwell in Maharaja Book Depot v State of Gujarat (1979) 20 Guj LR 99 (SC), (1979) Mad LJ 164 (Cr) (SC).
40 . Fakir Mohan v State of Orissa AIR 1958 Ori 118, p 122; Teja Singh v State of Punjab AIR 1952 Punj 145; McQuade v
Barnes [1949] 1 All ER 154.
43 . Ibid. p 262.
44 . [1962] Ch D 466, p 473.
45 . Rib Tapes (India) Pvt v Union of India AIR 1986 SC 2014 [LNIND 1986 SC 296], (1986) Tax LR 2103 [LNIND 1986
SC 296], (1986) JT 302, [1986] 8 ECR 731 [LNIND 1986 SC 296], (1986) 26 ELT 193 [LNIND 1986 SC 296], (1986) 4
SCC 1985, p 1986 SCC 421 (Cr), 1986 (3) Supreme 450 [LNIND 1986 SC 296], 1986 (2) Cur CC 906, (1986) 19 STL
137, 1986 SC Cr R 332, (1986) All Cr C 482.
Page 5 of 5
Penal Statutes
47 . AIR 1954 HP 67 [LNIND 1954 HP 31].
48 . AIR 1955 All 524 [LNIND 1955 ALL 68].
49 . (1979) 1 SCC 295 [LNIND 1978 SC 301].
50 . AIR 1966 AP 277, (1966) 1 Andh WR 313.
51 . (2008) 8 SCC 1 [LNIND 2008 SC 1181].
52 . (2012) 5 SCC 661 [LNIND 2012 SC 260].
53 . Dattatraya v Emperor AIR 1937 Bom 28, p 30; Rahmat Aslam v Crown (1950) ILR Lah 232; Chand Khan v Gound
(1972) Mah LJ 792, p 797, per Chandukar J.
54 . Municipality, Jammu v Glacier Cold Storage Co 1980 CLR 39 (J&K).
55 . Diwan Singh v Emperor AIR 1936 Nag 55, p 62.
56 . AIR 1954 All 183 [LNIND 1953 ALL 221]; Commr of Income-tax, Gujarat v Hiralal Mohanlal Shaw(1968) 9 Guj LR
650: no expansion of the scope and ambit of the punitive provision should be made; Rashpal Singh v Punjab University
(1968) ILR 2 Punj 677; Bhagat Prasad v Municipal Board, Dhampur (1968) All LJ 1061.
57 . 1981 Crilj 1092.
58 . (2004) 5 SCC 518 [LNIND 2004 SC 657].
End of Document
Benefit to the subject in case of doubt and Standards of compliance
NS Bindra
Another accepted canon of interpretation is that a penal statute should be construed strictly and that in case of
doubt the benefit should go to the subject.59 Where there is a reasonable ground for doubt as to the correct
interpretation of an enactment, that interpretation should be adopted which is most in favour of the person to be
penalised.60 It is recognised rule of construction of penal statute that where an equivocal word or ambiguous
sentence leaves a reasonable doubt of its meaning which the canons of interpretation fail to solve, the benefit of
doubt should be given to the subject and against the legislature which has failed to explain itself.61 The rule, that
penal statute should be construed in favour of a citizen, is applicable only where the meaning of the statute is not
clear.62 All the provisions of penal law must be interpreted, if there is room for doubt, in favour of the subject, and
most of all, the provisions relating to the offence of murder.63 However, it may be noted that the existence of an
ambiguity in the words to be construed does not necessarily create a doubt. It is then necessary to opt for an
examination of the context, the scope and object of the enactment. But that meaning may satisfy the court beyond
all doubt as to the meaning to be placed on an expression which is on its face ambiguous. In the interpretation of a
penal or a taxing statute mere ambiguity of expression or loose or inaccurate language will not prevent a court from
giving effect to the meaning of the legislature if, by the application of the ordinary rules of construction applicable to
all other statutes, that meaning can be ascertained.In the case of penal statutes, it is the duty of the court to
interpret words of ambiguous meaning in the broad and liberal sense, so that they will not become traps for men,
honest, unwary and unlearned in law. If there is honest and substantial compliance with an array of puzzling
directions that should be enough even if on some hypercritical view of the law ingenious meaning can be
devised.64
In State of Uttar Pradesh v Lalai Singh Yadav,65 the Court was considering an order under Section 99 -A of the
Code of Criminal Procedure, 1898 (Section 95 of the Criminal Procedure Code, 1973), the import of which was the
forfeiture of a retelling of the Ramayana by E.V. Ramaswamy Naicker Periyar. The question before the Court was
whether the requirement of furnishing a statement of grounds under the Section was mandatory, keeping in view
the penal consequences of non-compliance with the order. The Court held that the requirement was mandatory,
observing thata drastic restriction on the right of a citizen when imposed by statute, calls for a strict construction,
especially when quasi-penal consequences also ensue.
In Union of India v Chaya Ghoshal,66 an order of detention under Section 3 (1) of the Conservation of Foreign
Exchange and Prevention of Smuggling Activities Act, 1974, was challenged due to non- application of mind by the
detaining authority, who was obliged to make an independent decision under Section 11 of the Act. Quashing the
order on the basis of the mandatory nature of Section 11, the Court observed:
...a persons greatest of human freedoms, i.e., personal liberty is deprived, and, therefore, the laws of preventive
detention are strictly construed, and a meticulous compliance with the procedural safeguard, however, technical is
mandatory.
59 . Parmanand v Emperor AIR 1939 Lah 81, p 85 ; Thiraj v Crown (1930) ILR 11 Lah 55, p 65; Seth Balkishen v Emperor
AIR 1928 Nag 219: Arms Act;London County Council v Aylesbury Dairy & Co [1898] 1 QB 106, p 109; R v Champman
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[1931] 2 KB 606, p 609: courts must generally lean, in cases of doubt, against any construction of a penal law which is
patently oppressive to the subject, and in favour of a construction which is in accord with the general policy of the
criminal law, which is to protect the subject from a fresh prosecution after he has been convicted or acquitted in respect
of what is in substance the same matter; Rangachariar v Venkataswami AIR 1955 Mad 456 (2); Chhutan v State of
Uttar Pradesh AIR 1960 All 629 [LNIND 1960 ALL 90]; Jiwanmal Sons Pvt Ltd v Dy Commr of Sales-tax (1971) MP LJ
684, p 687, per Bishambhar Dayal CJ; State of Maharashtra v Laxmi Narsimham (1977) Mah LJ 714 ; Municipality,
Jammu v Glacier Cold Storage 1980 CLR 39 (J&K) ; Abdul Azees v State of Karnataka (1977) 2 SCC 485 [LNIND 1977
SC 157], p 490.
60 . Emperor v Himachal Singh AIR 1930 All 265, p 267, (1930) ILR 52 All 568 ;Madho Saran Singh v Emperor (1944) ILR
All 42, AIR 1943 All 379 .
61 . Diwan Singh v Emperor AIR 1936 Nag 55, p 62; Jonathan Edward v De Silva AIR 1934 PC 36, p 40; Singh & Co v
State of Uttar Pradesh (1999) All LJ 987; relying on State of West Bengal v Swapan Kumar Guha AIR 1982 SC 949
[LNIND 1982 SC 34].
62 . Ranchhodas v Union of India AIR 1961 SC 935 [LNIND 1961 SC 42], p 940.
63 . King v Aung The Nyun AIR 1940 Rang 259 .
64 . Seksaria Cotton Mill Ltd v State of Bombay AIR 1953 SC 278 [LNIND 1953 SC 41].
65 . (1976) 4 SCC 213 [LNIND 1976 SC 333].
66 . (2005) 10 SCC 97 [LNIND 2004 SC 1238].
End of Document
Where Two Interpretations Possible
NS Bindra
If two constructions are possible upon the language of the statute, the court must choose the one which is
consistent with good sense and fairness, and eschew the other which makes its operation unduly oppressive, unjust
or unreasonable, or which would lead to strange, inconsistent results or otherwise introduce an element of
bewildering uncertainty and practical inconvenience in the working of the statute.67
James LJ. observed in Kyke v Elliott, Gauntlet:68
No doubt all penal statutes are to be construed strictly, that is to say, the court must see that the thing charged as
an offence is within the plain meaning of the words used, and must not strain the words on any notion that there has
been a slip, that there has been a casus omissus, that the thing is so clearly within the mischief that it must have
been intended to be included, and would have been included if thought of. On the other hand, the person charged
has a right to say that the thing charged, although within the words, in not within the spirit of the enactment. But
where the thing is brought within the words and within the spirit, there a penal enactment is to be construed, like
any other instrument according to the fair commonsense meaning of the language used, and the court is not to find
or make any doubt or ambiguity in the language of a penal statute, where such doubt or ambiguity in the language
of a penal statute, where such doubt or ambiguity would clearly not be found or made in the same language in any
other instrument.
In Tuck & Sons v Priester,69 Lord Esher MR. put the rule in this way: if there are two reasonable constructions, we
must give the more lenient one. Lindley LJ. observed: ...the well-settled rule that the court will not hold that a
penalty has been incurred, unless the language of the clause which is said to impose it, is so clear that the case
must necessarily be within it.
In Periyaswami Moopan v Emperor70, the Court was considering the interpretation of Section 30 of the Evidence
Act, 1872, which allowed a statement of an accused person, not made under oath, to be used against a person co-
accused with him. The Court could either interpret it to mean that the statement could be used where the co-
accused had been charged under different offences, or could interpret it to restrict it to situations where the charges
were the same. The Court held that first interpretation was untenable as a person charged with a minor offence
could implicate the co-accused in a far more serious offence, and statement could then be used against his fellow-
accused. Hence, the Court favoured the second interpretation, and observed:
Lastly, if in this respect two interpretations of the section were grammatically possible, the ordinary canons of
interpretation would compel us to adopt in the interest of accused persons the stricter and narrower construction,
the construction which gives the less scope to this very exceptional extension of what may be used against an
accused person at his trial. Examining the section in any or all these ways, in my opinion, we must arrive at the
same conclusion, namely, that confession in Section 30 of the Evidence Act means confession of the offence for
which the accused persons are being tried.
In Amery Pharmaceuticals v State of Rajasthan,71 the appellant company was being prosecuted under the Drugs
and Cosmetics Act, 1940, for manufacturing of spurious and adulterated drugs. The Court had to construe the
extent of the implication of the words such evidence shall be conclusive as employed in Section 25 (3) of the Act, in
order to decide whether the import was to deny the appellant any chance to present evidence, or whether the
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provision could be interpreted to include scope for a remedy. The Court sought to follow the latter interpretation,
and accordingly held that the aforementioned expression would connote that if the accused did not adduce
evidence contrary to the evidence produced by the government within a specified period of time, the evidence
against him would become conclusive. The Court observed:
Any legal provision which snarls at an indicted person without affording any remedy to him to disprove an item of
evidence which could nail him down cannot be approved as consistent with the philosophy enshrined in art 21 of
the Constitution. The first effort which courts should embark upon in such a situation is to use the power of
interpretation to dilute it to make the provision amenable to Article 21.
In Prakash Kumar v State of Gujarat,72 the Court had to evaluate the admissibility of a confession under Section
15 of the Terrorist and Disruptive Activities (Prevention) Act, 1987. The possible interpretations before the Court
were either to exclude the application of the Code of Criminal Procedure, 1973, and the Indian Evidence Act, 1872,
or to apply these legislations to restrict the admissibility of confessions under Section 15 . The Court chose the
latter interpretation, and observed:
The Court cannot enlarge the scope of legislation or intention when the language of the statute is plain and
unambiguous. Narrow and pedantic construction may not always be given effect to. Courts should avoid a
construction which would reduce the legislation to futility. It is also well settled that every statute is to be interpreted
without any violence to its language. It is also trite that when an expression is capable of more than one meaning,
the court would attempt to resolve the ambiguity in a manner consistent with the purpose of the provision, having
regard to the consequences of the alternative constructions.
67 . Dilip Kumar Sharma v State of Madhya Pradesh (1975) Cr LR 624 (SC).
68 . 1872 LR 4 PC 184, p 191; Gamadia v Emperor (1926) 27 Cr LJ 165, 91 IC 949 (Bom).
69 . 19 QBD 629.
70 . AIR 1931 Mad 177, p 179.
71 . (2001) 4 SCC 382 [LNIND 2001 SC 699].
72 . (2005) 2 SCC 409 [LNIND 2005 SC 40].
End of Document
Evolution of common standards of interpretation and the discarding of
strict interpretation
NS Bindra
Evolution of common standards of interpretation and the discarding of

strict interpretation
No doubt all penal statutes73 are to be construed strictly, that is to say, the court must see that the thing charged
as an offence is within the plain meaning of the words used, and must not strain the words on any notion that there
has been a slip, that there has been a casus omissus, that the thing is so clearly within the mischief that it must
have been intended to be included, and would have been included if thought of. On the other hand, the person
charged has a right to say that the thing charged although within the words, is not within the spirit of the enactment.
Hence, the rule which requires that penal and some other statutes should be construed strictly has lost much of its
force in recent times, and it is now recognised that the paramount duty of the judicial interpreter is to put upon the
language of the legislature, honestly and faithfully, its plain and rational meaning and to promote its object.74
Craies75 writes:
The distinction between a strict and a liberal construction has almost disappeared with regard to all classes of
statute, so that all statutes, whether penal or not, are now construed by substantially the same rules.
Maxwell76 states the rule thus:
The rule of strict construction does not, indeed, require or sanction that suspicious scrutiny of the words, or those
hostile conclusions from their ambiguity or from what is left unexpressed, which characterise the judicial
interpretation of affidavits, in support of ex parte applications, or of magistrates convictions where the ambiguity
goes to the jurisdiction. Nor does it allow the imposition of a restricted meaning on the words, wherever any doubt
can be suggested, to withdraw from the operation of the statute a case which falls both within its scope and the fair
sense of its language. This would be to defeat, not to promote, the object of the legislature; to misread the statute
and misunderstand its purpose. A court is not at liberty to put a limitation on general words which is not called for by
the sense or the objects, of the mischiefs or the enactment, and no construction is admissible which would sanction
a fraudulent evasion of an Act.
Pollock, CB.observed in Attorney-General v Sillem:77
The distinction between a strict construction and a more free one has, no doubt, in modern times, almost
disappeared, and the question now is: What is the true construction of a statute? If I were asked whether there be
any difference left between a criminal statute and any other statute not creating an offence, I should say that in a
criminal statute you must be quite sure that the offence charged is within the letter of the law.
In Emperor v Noor Mahommad,78 the Sind High Court observed:
The rule of strict construction of penal statutes as modified in modern times is not so rigid or unbending as it was in
times gone-by when the cutting down of a cherry tree in an orchard or the begging or wandering without a pass by a
soldier or sailor was punishable in the United Kingdom with death. During the present times the rule means very
little more than that such statutes are to be fairly construed like all others according to the legislative intent as
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Evolution of common standards of interpretation and the discarding of strict interpretation
expressed by the statute itself or arising out of it by necessary implication...The rule of strict construction, derived
from cases decided when almost the only purpose of criminal legislation was to abolish benefit of clergy and
substitute the death penalty, has no proper general application today, although still salutary in a few specific
instances. The interpretation and application of statutes providing an indefinite test of liability presents an allied
problem. As the boundaries of crime have been extended to include more and more conduct made criminal only
because in securing conflict with some vague ideal of social policy, or to reach some potential evil in an indirect
manner, the need for a clear and comprehensive statement of the prohibited Acts has become increasingly
pressing. A canon of strict construction, limiting the statute to its obvious meaning, and excluding potentialities,
perhaps implicit to the legislature, but uncertain of application to the uninformed reader, does much to prevent
injustice.
73 .Dyke v Elliot (1872) LR 4 PC 184, p 191, per fames LJ: delivering the judgment of the court with Sir JW Colville, James
and Mellish, LJJ and Sir EM Smith: But where the thing is brought within the words and within the spirit then a penal
enactment is to be construed, like any other instrument, according to the fair commonsense meaning of the language
used, and the court is not to find or make any doubt or ambiguity in the language of a penal statute, where such doubt
or ambiguity would clearly not be found or made in the same language in any other instrument.
74 . State of Bombay v Jal K Patel AIR 1951 Bom 203 [LNIND 1950 BOM 39]-04; Emperor v Harmazadyar Irani AIR 1948
Bom 250; United States v Bremblett 99 L Ed 594, p 600, 348 US 503, per Reed J.
75 . Craies, Statute Law, fifth edn, 1952, p 503.
77 . (1864) 33 LJ Ex 92, p 110; SKD Lakshmanan Fire Work Industries v KV Sivaramakrishnan (1995) 84 Com Cases 447
(Ker) ; Gulshan Raj v Darshan Lal (1995) 84 Com Cas 445 (P&H); and KPV Textiles v Nalook Chand Naresh Chand
(1994) 79 Com Cas 125 (P&H); dissented from K Chellakannu Nadar v Chenkal MR Simon (1995) 84 Com Cas 459
(Ker); Kumaresan (NC) v Ameerappa (1992) 74 Com Cas 848 (Ker) overruled; Mahadevan Sunil Kumar v Bhardran
(1992) 74 Com Cas 805 (Ker) approved.
78 . Emperor v Noor Mahommad AIR 1928 Sind 1; Mahadevan Sunil Kumar v Bhardran (1992) 74 Com Cas 805 (Ker)
approved.
End of Document
The rule of strict construction today
NS Bindra
When it is said that all penal statutes are to be construed strictly, it only means that the court must see that the thing
charged is an offence within the plain meaning of the words used and must not strain the words. To put it in other
words, the rule of strict constriction requires that the language of a statute should be so construed that no case shall
be held to fall within it which does not come within the reasonable interpretation of the statute. No doubt, as
Maxwell observes, the rule of strict construction in the case of penal statute was more rigorously applied in former
times, and the tendency of modern decision, upon the whole, is to narrow materially the difference between what is
called a strict and a beneficial construction. The rule of strict construction must yield to the paramount rule that
every statute is to be expounded according to its express or manifest intention.79 The rule that penal statutes
should receive a strict construction does not mean that a court should construe an Act of Parliament so as to
exclude from it, as much as an ingenious mind can be, a possible interpretation contrive to exclude. The rule simply
means that the court should not strain the words beyond their meaning. There is no principle of law of interpretation
to authorise a court to withdraw a case from the express prohibition of one statute on the ground that the offence
was also punishable, though differently, in another statute. In case of two parallel provisions, the prosecution may
proceed under either.80
Sedgwick states the rule thus:81
The more correct version of the doctrine appears to be the intent of the legislature, without unwarrantable severity
on the one hand or unjustifiable levity on the other, in cases of doubt the courts inclining to merely.
Maxwell observed:82
The tendency of modern decisions upon the whole, is to narrow materially the difference between what is called a
strict and a beneficial construction. All statutes are now construed with a more attentive regard to the language, and
criminal statutes with a more rational regard to the aim and intention of the legislature, than formerly. It is
unquestionably right that the distinction should not be altogether erased from the judicial mind, for it is required by
the spirit of our free institutions that the interpretation of all statutes should be favourable to personal liberty and this
tendency is still evinced in a certain reluctance to supply the defects of language, or to eke out the meaning of an
obscure passage by strained or doubtful influences. The effect of the rule of strict construction might almost be
summed up in the remark that, where an equivocal word or ambiguous sentence leaves a reasonable doubt of its
meaning which the canons of interpretation fail to solve, the benefit of the doubt should be given to the subject and
against the legislature which has failed to explain itself. But it yields to the paramount rule that every statute is to be
expounded according to its expressed or manifest intention and that all cases within the mischief aimed at are, if the
language permits, to be held to fall within its remedial influence.
In Corpus Juris,83 it is stated:
Penal statutes are to be interpreted by the aid of all the ordinary rules for the construction of statutes. The court
should construe these statutes in the light of the evil to be remedied and with the cardinal object of ascertaining and
giving effect to the intention of the legislature, when it can be discovered, must, control.
In State of Hyderabad v Hyder Ali,84 the accused argued that he had come to Hyderabad under a valid permit and
Page 2 of 3
had overstayed the period of his permit when the Influx from Pakistan (Control) Act, 1949, was not applicable to the
State of Hyderabad at the time of his overstaying, and since the rules prohibiting overstay were framed
subsequently, he could not be removed or convicted under the Act. This argument was premised on the fact that
since the Act had penal consequences, its application ought to be construed strictly. The majority repelled this
contention, and Srinivasa Chari J., speaking for the majority, held:
The oft-advanced argument that penal laws must be construed strictly and in favour of the imrty was also put forth. I
fail to see how a strict construction of the Act read with the Rules would make any difference. I may point that a
penal statute must be read in a manner consistent with commonsense. It has to be construed no doubt strictly but
the intention of the Legislature must govern in the construction of a penal statute as much as in any other statute.
What is the intention of the Legislature in enacting the Influx from Pakistan (Control) Act? It is only with a view to
control admission into India of persons scorning from Pakistan and to regulate their movements. Where, therefore,
a citizen of Pakistan Is allowed to come to India for a particular purpose such as to see an ailing relation of his, or to
wind up any business that he may have in India, it is of the essence of the purpose of the Act that such person
should be made to leave the shores of India immediately the work, is over for which permission had been given to
him, and that he should not be allowed to stay in India any longer. That the same rules would govern the
construction of penal statutes as in the construction of other statutes may be taken to be the present law.
In Ali Chunnoo v State of Uttar Pradesh,85 the Court had to consider whether looting three houses would constitute
three distinct offences under Section 233 of the Code of Criminal Procedure, 1898 (Now Section 218 of the Code of
Criminal Procedure, 1973). The State sought to argue that the expression distinct occurring in the provision ought to
be construed strictly, by virtue of which there would be three distinct offences with which the appellant would be
charged with. The Court repelled this contention, and held:
While it is true that the benefit of every doubt, even in the matter of interpretation, must be given to the accused, a
construction that would defeat the very object of the law must be avoided if it is reasonable to do so. Every distinct
offence in Section 233 cannot be treated as having the same meaning as every offence. The only meaning that the
word distinct can have in the context in which it occurs is to indicate that there should be no connection between the
various acts which give rise to criminal liability. The fact that three houses were looted one after the other cannot
have the effect of proving three distinct offences. There may even in such a case be sufficient continuity of purpose
to make it one offence.
In JK (Bombay) Ltd v Bharthi Matha Mishra,86 the Court was considering whether family members of an employee
or an ex-employee of a company could be tried, convicted, and sentenced for the commission of offence, by
liberally interpreting the expression officer or employee occurring in Section 630 of the Companies Act, 1956, to
include family members. The Court refused to allow such an interpretation, and observed:
In criminal cases the law which entails conviction and sentence, liberal construction, with the aid of assumption,
presumption and implications cannot be resorted to for the purpose of roping in the criminal prosecution, such
persons who are otherwise not intended to be prosecuted or dealt with by criminal court...Agreeing with the plea of
the appellant would also be against the public policy, inasmuch as under similar circumstances the companies
would be authorised to resort to harassment tactics by having recourse of arraigning minors and old members of
the family of its officer or employee in officer or even past.
In R. Kalyani v Janak C. Mehta,87 the Court was considering a case of cheating under inter alia Section 415 of the
Indian Penal Code, 1860. The Court relied on various authorities to hold that for establishing the offence of
cheating, the complainant was required to show that the accused had fraudulent or dishonest intention at the time
of making the promise of representation. From his failure to keep up the promise subsequently, a culpable intention
right at the beginning could not be presumed. When it was argued that a strict construction be given to Section 415
so as to exclude questions of intention, the Court rejected this contention, and observed while invokingCraies:
The distinction between a strict construction and a more free one has, no doubt, in modern times almost
disappeared, and the question now is, what is the true construction of the statute? I should say that in a criminal
statute you must be quite sure that the offence charged is within the letter of the law. This rule is said to be founded
on the tenderness of the law for the rights of individuals, and on the plain principle that the power of punishment is
vested in the Legislature, and not in the judicial department, for it is the Legislature, not the Court, which is to define
a crime and ordain its punishment.
Page 3 of 3
79 .Teja Singh v State of Punjab AIR 1952 Punj 52.
80 . AIR 1956 Pepsu 1.
81 . Sedgwick, Statutory Law, second edn, p 287; Foley v Fletcher(1858) 117 RR 967.
82 . Maxwell, Interpretation of Statutes, eleventh edn, pp 274-75.
83 . Corpus Juris, vol 59, pp 1112-13, art 659.
84 . 1955 Crilj 798.
85 . AIR 1954 All 795 [LNIND 1954 ALL 139].
86 . (2001) 2 SCC 700.
87 . (2009) 1 SCC 516 [LNIND 2008 SC 2127].
End of Document
Law as it Exists on the Date of the Judgment
NS Bindra
In Shyamlal v State of Uttar Pradesh,88 the appellant was prosecuted under Section 7 (i) read with Section 16
(1)(a) of the Prevention of Food Adulteration Act, 1954. Section 16 (1)(a) was amended during the course of the
trial, the effect of which was to remove any distinction between first, second and third offences. It was argued by the
appellant that the amendment ought to be applied in decided his sentence. The Court upheld this contention, and
observed:
The true rule of construction of a penal statute is that where the legislature evinces its intention to modify the law, in
favour of the accused, so as to reduce the rigour of the law in the light of past experience and changed social
conditions, so long as prosecution of the accused has not concluded by a judgment of conviction, the proceeding
against him are regarded as inchoate and the law applicable to him would be the law as amended by the
legislature. The court trying an accused person has to take into consideration the law as it exists on the date of the
judgment.
In State v Kanu Dharma Patil,89 the respondent was accused of violating Section 4 of the Bombay Harijan Temple
Entry Act, 1947, by not allowing a dalit child to enter a temple. The accused pleaded that since he had not
physically prevented the child from entering, a charge under the aforementioned provision could not be made out.
The Court rejected this contention, and held that while the provision was a part of a penal statute, and it must be
construed in favour of the accused, the court could not give Section 4 a narrow and unreasonable construction. The
word prevent in Section 4 did not necessarily denote the use of physical force or threat of physical force, and
hence, conviction was ordered.
Meaning of Words cannot be Cut Down
Baguley J. observed in Emperor v Maung Pu Kai:90
Words when perfectly plain and clear must be given their natural meaning and although I fully recognise that a
penal law must be interpreted as far as possible in favour of the subject, I do not think that a court is justified in
adding at the end of a section a qualifying or explanatory phrase which is not to be found in the section itself. It is a
settled rule of construction of penal statutes that the court must lean towards that construction which exempts the
subject from penalty rather than the one which imposes penalty. It was 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.
In Tolaram v State of Bombay,91Section 18 (1) of the Bombay Rent, Hotel and Lodging House Rates (Control) Act,
1947, provided that if any landlord receives 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 or person shall be punished with imprisonment or find as laid down in the section. The Court held that
giving the words in respect of their widest meaning i.e. relating to or with reference to it is plain that this relationship
must be predicted of the grant, renewal or continuance of a lease, and unless a lease comes into existence
simultaneously or near about the time that the money is received, it cannot be said that the receipt was in respect of
the grant of a lease. On its plain, natural, grammatical meaning the language of the section in respect of the grant
Page 2 of 6
renewal or continuance of a lease envisages the existence of a lease and payment of an amount in respect of that
lease or with reference to that lease. Hence, in the opinion of the Court, the Section did not cover the case of an
agreement to grant a lease as distinguished from a lease. If the legislature intended to punish persons receiving
pugree or merely executory contracts, it ought to have made its intention clear by use of clear and unambiguous
language.
Omission How Dealt With
Re Puvanur Athamu,92 the question before the Court was whether an offence under Section 126 of the Indian
Railway Act, 1890, or under Section 7 (c) of the Martial Law Regulations was an offence under Section 149 of the
Indian Penal Code, 1860. The public prosecutor urged that as the words unlawful assembly in Section 141 of the
Indian Penal Code, 1860, would cover an assembly whose object was to commit an offence under Section 126,
Indian Railways Act, the same phrase would be imported into the text of Section 149 as well. Wallace and
Madhavan Nair JJ. observed:
But we consider that a criminal statute has to be rigidly interpreted and that Section 40 in terms clearly implies that
in Section 149 the word offence only covers offences punishable under the Indian Penal Code. With the reasons for
such a provision we are not concerned.
Implied Repeal
In T Barai v Henry Ah Hoe,93 the question before the Court was the effect of competing Central and State
amendments prescribing the punishment for committing an offence under Section 16 (1)(a) of the Prevention of
Food Adulteration Act, 1954. The Central Amendment prescribed a lesser punishment, while the earlier State
Amendment prescribed a higher punishment. The Court held:
If a statute deals with a particular class of offences, and a subsequent Act is passed which deals with precisely the
same offences, and a different punishment is imposed by the later Act, I think that, in effect, the legislature has
declared that the new Act shall be substituted for the earlier Act.
No Retrospective Effect94
Ordinarily, a canon of interpretation of penal legislation does not permit penal provisions to have retrospective
effect.95 It is true that in case of statutes of a penal character which create certain offences and make certain acts
punishable as such offences for the first time, no proceedings under them are generally maintainable in respect to
acts done before the commencement of the statute. The reason is plain. For first of all the doer of the act cannot be
imputed with the element of mensrea which is ordinarily the principal ingredient for proof of guilt. Further to punish a
person for his act which was then not an offence under a subsequent legislation which came into operation after his
said act is per se unconscionable besides amounting to negation of fair play and justice.
In Collector of Customs, Bombay v East Punjab Traders,96 there were some changes in the export and import
policy for the period 1984-85. The Court held that the effect of such a change could not be retrospective, since it
would lead to penal consequences against the importers. It was further held that the consequence of this
interpretation would lead to certain penal liabilities in
regard to payment of penalty, etc, and therefore, an entry prescribing the limit of the width had to be read
retrospectively.
In Sajjan Singh v State of Punjab,1 the Court was considering whether by virtue of Section 5 (3) of the Prevention
of Corruption Act, 1947, which included pecuniary resources and property acquired prior to the coming into force of
the Act, the entire Act could be considered to operate retrospectively. The Court held that since the Act entailed
penal consequences for indulging in acts of corruption, the retrospective mandate of Section 5 (3) could not have
the effect of making the entire Act operate retrospectively.
Object of the Act and Strict Interpretation

Page 3 of 6
In Emperor v Nathalal Vanmali,2 a question arose in regard to the presumption arising under Section 7 of the
Bombay Prevention of Gambling Act, 1887. During the raid of the business premises of the accused persons,
certain books and documents were seized and it was suggested by the prosecution that those books and
documents were instruments of gaming, and that since the raid took place under Section 6 of the Act, a
presumption arose under Section 7 that the premises raided were used as a common gaming house. The
documents seized, however, were not on the face of them instruments of gaming and reliance was placed by the
government pleader particularly on the words which were added to Section 7 by an amendment in 1936. Beaumont
CJ. rejected such a presumption, and observed:
The learned government pleader says that that construction reduces the amendment of the Act to a nullity, and that
what the section really means is that where there is found in a raid an instrument of gaming, or something which is
reasonably suspected to be an instrument of gaming, though it cannot be definitely proved to be so, then the
presumption arises, and the burden is thrown upon the accused to prove that the suspected thing is not an
instrument of gaming. That, no doubt, would be a reasonable construction to be placed upon the section if the
language so permitted. But in construing a section of Penal Act which cast upon the accused the burden of proving
his innocence, the court must act strictly (italics mine) and it seems to me that it is impossible, reading the language
of the section according to its government pleader contends. I think that what I have called the second event can
only arise, on the language used, when it is proved that the thing which was found in the house raided was not an
instrument of gaming; and, as I have pointed out, directly you prove that you destroy the evidential value of the
thing found. So that, in my opinion, in this case in order to bring into play the presumption under Section 7 it must
be proved that the thing seized in the raid were instruments of gaming.
In Shri Ishar Alloy Steels Ltd v Jayaswals Naco Ltd,3 the question before the Court was whether a person could be
prosecuted under Section 138 of the Negotiable Instruments Act, 1881, if the cheque was deposited at the
collecting bank within the statutory period, but was not presented to the drawee bank within the statutory period.
The Court held that the expression bank occurring in Section 138 would only mean the drawee bank, and
prosecution could only be sought if the cheque was rejected by the drawee bank. On creating harmony between the
object of the Act and the doctrine of strict construction of penal statutes, the Court observed:
The purpose of the Act was to present an orderly and authoritative statement of the leading rules of law relating to
the negotiable instruments. The Act intends to legalise the system under which claims upon mercantile instruments
could be equated with ordinary goods passing from hand to hand. To achieve the objective of the Act, the
Legislature in its wisdom thought it proper to make provision in the Act for conferring such privileges to the
mercantile instruments contemplated under it and provide special procedure in case the obligation under the
instrument was not discharged. It has, always to be kept in mind that Section 138 of The Act creates an offence and
the law relating to the penal provisions has to be interpreted strictly so that non-one can ingeniously or insidiously or
guilefully or strategically be prosecuted.
However, in Goaplast Pvt Ltd v Chico Ursula DSOUZA,4 the Supreme Court accorded greater credence to the
mischief rule in interpreting Section 138 of the Negotiable Instruments Act, 1881. The question before the court was
whether Section 138 applied to a case in which a person issuing a post dated cheque stops its payment by issuing
instructions to the drawee bank before the due date of payment. The Court held:
While considering the question of applicability of Section 138 of the Act to a situation presented by the facts of the
present case, it is necessary to keep the objects of the legislation in mind. If a party is allowed to use a cheque as a
mode of deferred payment and the payee of the cheque on the faith that he will get his payment on the due date
accepts such deferred payment by way of cheque, he should not normally suffer on account of non payment. The
faith, which the legislature has desired that such instruments should inspire in commercial transactions would be
completely lost if parties are as a matter of routine allowed to interdict payment by issuing instruction to banks to
stop payment of cheques...It is desirable that the court should lean in favour of an interpretation which serves the
object of the statute. The penal provisions contained in Section 138 to 142 of the Act are intended to ensure that
obligations undertaken by issuing cheques as a mode of payment are honoured. A post-dated cheque will lose its
credibility and acceptability if its payment can been stopped routinely...If stoppage of payment of a post-dated
cheque is permitted to take the case out of the purview of Section 138 of the Act, it will amount to allowing the party
to take advantage of his own wrong.
Page 4 of 6
The court relied on the case of NEPC Micon Ltd v Magma Leasing Ltd,5 wherein the drawer of the cheque closed
the account in the bank before presentation of the cheque and the cheque when presented was returned by the
bank with the remark account closed. The question arose whether in this situation Section 138 of the Act would be
attracted. It was contended on behalf of the appellant that Section 138, being a penal provision, ought to be strictly
interpreted. The Court rejected this contention, and held that the return of a cheque owing to account being closed
would be similar to a situation where the cheque is returned on account of insufficiency of funds in the account of
the drawer of the cheque. Withdrawal of the entire amount would therefore mean that there were no funds in the
account to honour the cheque, which squarely brought the case within Section 138 of the Act. On the question of
strict interpretation of penal provisions raised on behalf of the accused, it was observed:
If the interpretation, which is sought for, were given, then it would only encourage, dishonest persons to issue
cheques and before presentation of the cheques, close the account and thereby escape from the penal
consequences of Section 138...Any interpretation which withdraws the life and blood of the provision and makes it
ineffective and a dead letter, should be averted. It is the duty of the court to interpret the provision consistent with
the legislative intent and purpose so as to suppress the mischief and advance the remedy. The legislative purpose
is to permit the efficacy of banking and of ensuring that in commercial or contractual transactions, cheques are not
dishonoured and credibility in transacting business through banks is maintained.
In Lalita Jalan v Bombay Gas Co Ltd,6 the question before the Court was whether under Section 630 of the
Companies Act, 1956, which used the expression officer or employee of a company, the legal heirs of an officer or
employee could be accommodated. It was argued that the provision was a penal provision and hence, it ought to be
construed strictly. The Court rejected this contention, and held that since it was not a penal statute by nature, strict
construction was not attracted. Hence, legal heirs were brought in the ambit of Section 630 . In arriving at this
decision, the Court observed:
The Companies Act is entirely different from those statutes which basically deal with offences and punishment like
Indian Penal Code, Terrorist and Disruptive Activities (Prevention) Act, etc...Having regard to the purpose for which
Section 630 has been enacted viz. to retrieve the property of the company and the salient features of the statute
(Companies Act) it is not possible to hold it as a penal provision as the normal attributes of crime and punishment
are not present here. It cannot be said to be an offence against the society at large nor the object of awarding
sentence is preventive or reformative. In such circumstances the principle of interpretation relating to criminal
statutes that the same should be strictly construed will not be applicable.
In Ashok Kumar v State of Haryana,7 the appellant had been convicted under Section 304 -B of the Indian Penal
Code, 1860. He argued that there was no connection between the death of his wife, and the material demands
made from her family prior to her death. The appellant challenged his conviction, basing it on strict interpretation of
Section 2 of the Dowry Prohibition Act, 1961 (definition of dowry) and Section 304-B. Since 2 employed the
expressionat or before or any time after the marriage in connection with the marriage, it was argued that since
demands had been made a long time after the marriage, the conviction was unsustainable under the 1961 Act.
As regards the phrase in connection with the marriage, the Court held that it ought to be given wide amplitude and
included situations both before and after marriage. As regards the expression soon before her death in Section 304-
B, the Court held that while it was a penal provision demanding strict construction, it ought to be read in conjunction
with other relevant provisions and scheme of the Act. Further, the interpretation given should be one which would
avoid absurd results on the one hand and would further the object and cause of the law so enacted on the other.
The Court held that since the legislature did not specify a time period in Section 304-B, the requirement of
reasonable time ought to be read into Section 304-B.
Interpretation of special penal statutes
In Niranjan Singh Karam Singh Punjabi v Jitendra Bhimraj,8 the Court was considering the application of the
Terrorists and Disruptive Activities (Prevention) Act, 1987, to a quarrel between two warring factions in a village, in
which one of the parties alluded to gaining supremacy in the underworld by eliminating the rival faction. The Court
rejected the application of the TADA in this situation, and observed:
...the provisions of the Act need not be resorted to if the nature of the activities of the accused can be checked and
Page 5 of 6
controlled under the ordinary law of the land. It is only in those cases where the law enforcing machinery finds the
ordinary law to be inadequate or not sufficiently effective for tackling the menace of terrorist and disruptive activities
that resort should be had to the drastic provisions of the Act. While invoking a criminal statute, such as the Act, the
prosecution is duty bound to show from the record of the case and the documents collected in the course of
investigation that facts emerging therefrom prima facie constitute an offence within the letter of the law. When a
statute provides special or enhanced punishments as compared to the punishments prescribed for similar offences
under the ordinary penal laws of the country, a higher responsibility and duty is cast on the Judge to make sure
there exists prima facie evidence for supporting the charge levelled by the prosecution. Therefore, when a law visits
a person with serious penal consequences extra care must be taken to ensure that those whom the legislature did
not intend to be covered by the express language of the statute are not roped in by stretching the language of the
law. But that does not mean that the judicial officer called upon to decide whether or not a case for framing a charge
under the Act is made out should adopt a negative attitude. He should frame a charge if the prosecution shows that
the material placed on record and the documents relied on give rise to a strong suspicion of the accused having
committed the crime alleged against him.
The escalating concerns for physical safety and personal security came to the fore in Balram Kumawat v Union of
India,9 where the apex court elaborated upon the criminal jurisprudence of special offences and held that the rule of
strict construction would not always prevent the court from 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. Further, the rule of strict construction may not be adhered to, if it would lead to the plain intention of the
Parliament to combat crimes of special nature being defeated. Thus, even in relation to a penal statute, narrow and
pedantic, literal and lexical construction may not always be preferred. The law would have to be interpreted having
regard to the subject matter of the offence and the object of the law it seeks to achieve. The purpose of the law is
not to allow the offender to sneak out of the meshes of law. So, a penal statute may also be construed to avoid a
lacuna and to suppress mischief and advance the remedy in the light of the rule in Heydons case. Further, a
commonsense approach for solving a question of applicability of a penal enactment is not ruled out by the rule of
strict construction. The court cannot restrain the comprehensive language used by the legislature, the wide
meaning of which is in accord with the object of the statute. It was also observed that it is the courts duty to make
what it can of the statute, knowing that the statutes are meant to be operative and not inept and that nothing short
of impossibility should allow a court to declare a statute unworkable (ut res magis valeat quam pereat).10
88 . AIR 1968 All 392 [LNIND 1968 ALL 17], p 397, per Uniyal J.
89 . AIR 1955 Bom 390 [LNIND 1955 BOM 6].
90 . AIR 1929 Rang 203-04, (1929) ILR 7 Rang 329, referring order.
91 . AIR 1954 SC 496 [LNIND 1954 SC 91]; Sosamma v Rajendran (1994) 80 Com Cas 503 (Ker); NK Jain v CK Shah
AIR 1991 SC 1289 [LNIND 1991 SC 173], (1991) Cr LJ 1347, 1991 Lab IC 1013, AIR 1991 SCW 960; Sachidanand
Singh v Tarawati Mishrain AIR 1992 Pat 164 .
92 . AIR 1925 Mad 239 [LNIND 1924 MAD 181].
93 . (1983) 1 SCC 177 [LNIND 1982 SC 190], AIR 1983 SC 150 [LNIND 1982 SC 190], (1983) SCC 143 (Cr).
94 . For a more detailed consideration of retrospective operation of statutes see Part II chapter 6 supra
95 . Nag Po Ngwe v Emperor (1929) ILR 7 Rang 355, AIR Rang 278; Paras Ram v Emperor AIR 1931 Lah 145: a new Act
or statute which penalises what otherwise is not an offence must be so construed as to make it strike at future acts or
omissions unless the legislature has clearly said so; Gadai Sahu v Emperor AIR 1943 Pat 361.
96 . (1998) 9 SCC 115.
1 . AIR 1964 SC 464 [LNIND 1963 SC 203].
2 . AIR 1939 Bom 339, (1939) ILR Bom 434.
3 . (2001) 3 SCC 609 [LNIND 2001 SC 510].
4 . (2003) 3 SCC 232 [LNIND 2003 SC 301].

Page 6 of 6
5 . AIR 1999 SC 1952 [LNIND 1999 SC 470], (1999) 4 SCC 253 [LNIND 1999 SC 470], (1999) SCC (Cr) 524.
6 . (2003) 6 SCC 107 [LNIND 2003 SC 438].
7 . AIR 2010 SC 2839 [LNIND 2010 SC 582].
8 . (1990) 4 SCC 76 [LNIND 1990 SC 405]; referring to Usmanbhai Dawoodbhai Menon v State of Gujarat (1988) 2 SCC
271 [LNIND 1988 SC 170], (1988) SCC 318 (Cr): if the scales were to tilt in favour of curbing terrorism and disruptive
activities, it is submitted, it is but just and expedient to resort to this drastic measure.
9 . (2003) 7 SCC 628 [LNIND 2003 SC 714].
10 . For more examples on the relevance of this maxim see Part II chapter7 supra.
End of Document
Conclusion
NS Bindra
Conclusion
The chapter shows the manner in which the construction of penal statutes has been changing over time. There was
a point where it was believed that a penal statute had to be construed strictly in favour of the accused. With the flux
of time, two contradictory developments have influenced the interpretation of penal statutes. The scaling down of
punishments is one development which has lessened the pressure on Courts to strictly interpret a statute in favour
of the accused; the other development is the crime control compulsions of modern penal statutes. Since the
intention of the legislature is acknowledged as the driving force of statutory interpretation, with legislatures seeking
rigorous implementation, courts have expressed opinions whereby they have stressed on the strict interpretation of
the statute whether or not the interpretation is in favour of the accused. Tables3.4 shows how the rule of strict
construction in favour of the accused operates; whereas Table 3. 5 exemplifies how purposive interpretation is as
much relied upon in construing the meaning of penal statutes
Table 3.4 Strict Construction of Penal Statutes
S. No Name and Citation of Provision and Statute Context of the Case Construction of the
the Case Court
1. Guranditta v Emperor Indian Penal Code, The Court had to The Court held that
AIR1938 Lah 691 1860 - Section 504 consider whether any provision ought to be
(Intentional insult with insult and abuse construed in favour of
intent to provoke inflicted by the accused the accused, and
breach of the peace) that led to a breach of hence, the trial court
peace would qualify as ought to try to find out
an offence under what in the ordinary
Section 504. circumstances would
have been the effect of
abusive language
used, and whether the
temperament or
idiosyncrasies of the
individual who
breached the peace
should not be
considered in deciding
the guilt of the
accused.
2. Madho Saran Singh v Ordinance 19 of 1943 The Court had to The Court held that the
Emperor (repealing the Special consider whether the Ordinance of 1943
AIR 1943 All 379 Criminal Courts repeal of the could not be construed
Ordinance 2 of 1942) Ordinance of 1942 in favour of the Crown,
meant that ongoing and since it dealt with
trials were void, and penal enactments, it
that sentences under ought to be construed
the Ordinance of 1942 in favour of the
were automatically accused. Hence, the
Page 2 of 7
Conclusion
reduced. It was argued trials were rendered

inter alia that the void, and sentences
Ordinance of 1943 had were reduced.
been enacted in a
hurry, and hence, the
provisions ought to be
construed in a manner
beneficial to the
Crown.
3. Bansraj v State Motor Vehicles Act, The question before The Court held that the
AIR 1956 All 27 1939 - Section 42 the Court was whether expression owner
[LNIND 1955 ALL 158] the expression owner ought to be construed
occuring in the in favour of the
provision would extend accused, and hence, it
to any person driving ought to mean a
the vehicle. person who legally
owned the vehicle and
was driving it as well.
4. State of Kerala v West Companies Act, 1913 - The Court was The Court relied on the
Coast Planters Section 76 considering whether definition of meeting to
Agencies Ltd the sole member of the hold that expression
AIR 1958 Ker 41 accused company could only mean the
[LNIND 1957 KER 219] could be convicted interaction of two or
under Section 76 of the more persons, and
Act when the meeting hence, the alleged
conducted was meeting conducted by
attended only by him. the sole member of the
company was no
meeting at all. Thus, on
a strict construction of
the expression
meeting, the accused
was held guilty under
Section 76.
5. Harish Chandra Gupta Essential Commodities The Court had to The Court held that the
v State of Uttar Act 1955 - Section 3 construe the definition expression was too
Pradesh and Sugar (Control) of khandsari sugar vague for a provision
AIR 1960 All 650 Order, 1955 - Clause 3 occurring in Clause 3 laying down penal
[LNIND 1960 ALL 6] of the Order to decide consequences, and
whether the appellant hence struck it down
was guilty or not. as arbitrary.
6. Shaikh Abdul Azees v Indian Penal Code, The question before The Court held that the
State of Karnataka 1860 - Section 303 and the Court was whether provisions ought to be
AIR 1977 SC 1485 Code of Criminal a convict, whose construed in favour of
[LNIND 1977 SC 157] Procedure, 1898 - sentence for life had the accused, and
Section 401 been reduced under hence, a person whose
Section 401, could be sentence had been
considered as a reduced, could not be
convict sentenced for considered as being
life, thus attracting the under sentence of
application of Section imprisonment for life
303 when he murdered within the meaning of
someone. Section 303.
7. Glaxo Laboratories v Industrial Employment A standing order The Court held that
Presiding Officer, (Standing Orders) Act, penalized misconduct since the provision was
Labour Court 1946 by an employee if it of a penal nature, it
AIR 1984 SC 505 occurred within the ought to be construed
Page 3 of 7
Conclusion
[LNIND 1983 SC 289] premises of the strictly. Hence, the

establishment, or in the expression was
vicinity thereof. The construed to mean
Court had to interpret within close proximity
the scope of the of the premises if not
expression used in the within the premises
order to adjudicate on itself.
the merits of the case.
8. Steel Authority of India Bihar Agricultural The question before The Court strictly
Ltd v Bihar Agricultural Produce Market Act, the Court was whether interpreted the
Produce Market Board 1970 - Section 2 (1)(w) the appellant, who expression trader to
AIR1990 Pat 146 bought quantities of observe that the
wood for use as raw expression referred to
material in the an entity that bought
production of steel, and sold wood as its
was a trader within the primary business.
meaning of the Act, Hence, SAIL could not
and hence, subject to be brought within that
penal consequences definition, and could
under the Act. not be penally liable
under the Act.
9. Raj Kumar Khurana v Negotiable Instruments The question before The Court observed
Govt of NCT of Delhi Act, 1881 - Section 138 the Court was whether that the conditions
(2009) 6 SCC 72 return of a cheque by prescribed under
[LNIND 2009 SC 1113] the bank on the ground Section 138 were
that it was reported lost mandatory and had to
by the drawer would be satisfied prior to the
attract the penal complaint. In this case,
provisions contained in since it was a matter of
Section 138. refusal on the part of
the bank to honour the
cheque, the Court held
the situation is not one
contemplated by
Section 138.
10. K.K. Ahuja v V.K. Vora Negotiable Instruments The Court was The Court held that the
(2009) 10 SCC 48 Act, 1881 - Section 141 considering whether a expressions used in
[LNIND 2009 SC 1379] Deputy General Section 141, on a strict
Manager could be construction, would
considered as in refer only to persons
charge of...or who were in charge of
responsible to the the day to day
company for the business of the
conduct of the company, and had
business of the control over decisions
company, so as to of the company.
bring him within the Hence, a Deputy
ambit of Section 141. General Manager not
involved in any of the
aforementioned
activities could not be
brought within the
ambit of Section 141.
11. HDFC Bank Limited Negotiable Instruments The Court was The Court held that the
vAmit Kumarsingh Act, 1881 - Section 138 considering whether it provisions of Section
160 (2009) DLT 478 was mandatory for the 138 were mandatory,
complainant to produce and hence, proof of
some proof of notice being served
Page 4 of 7
Conclusion
despatch of the notice had to be furnished by

in terms of Section 138 the complainant, and a
sent to the drawer of declaration on an
the dishonoured affidavit of service was
cheque. not sufficient.
12. Ashrafkhan v State of Terrorist and Disruptive The question before The Court held that the
Gujarat (2012) 11 SCC Activities (Prevention) the Court was whether provision had be
606 [LNIND 2012 SC Act - Section 20-A (1) information about the construed strictly and
582] commission of an as mandatory since it
offence could be was couched in
recorded by the police negative terms and
without the prior was part of a penal
approval of the District statute, and hence,
Superintendent of information could not
Police. Section 20-A be recorded without
(1) laid down this prior approval.`
condition using
negative expressions.
Table 3.5 Liberal and Wide Construction of Penal Statutes
S. No. Name and Citation of Provision and Statute Context of the Case Construction of the
the Case Court
1. Emperor v Hormazdyar Bombay Prevention of The Court had to The Court held that
Ardeshirirani Gambling Act, 1887 - decide whether coins Section 7 of the Act
AIR1948 Bom 250 Section 7 and notes with was intended to apply
markings on them, to such things as may
suspected to be appear to be
received by the instruments of gaming,
respondent for though they may not
purposes of gambling, be proved to be such
could be instruments of instruments, and that
gambling under only by putting such a
Section 7. construction was it
possible to give
meaning to the
provision. Hence, a
strict construction of
the expression was
rejected.
2. Public Prosecutor v Indian Penal Code, The Court was The Court held that
P.V. Audinarayana 1860 - Section 161 and considering a charge of subtle issues of
Chetty Indian Evidence Act, illegal gratification by a evidence could not be
AIR1953 Mad 481 1872 - Sections 5-9,11, public servant. It was pleaded as an excuse
14, and 15 argued that since there for holding the accused
was discrepancy as as guilty, and benefit of
regards evidence doubt cannot be
relating to currency granted to a public
notes, the benefit of servant accused of
doubt ought to be illegal gratification.
construed in favour of
the accused.
3. M. V. Joshi v M. U. Prevention of Food The Court had to The Court rejected

Shimpi Adulteration Act, 1954 consider whether strict construction of
AIR 1961 SC 1494 - Section 16 (i) butter prepared from the definition, and held
[LNIND 1961 SC 78] curd would come under that on an application
Page 5 of 7
Conclusion
the definition of butter of the plain meaning

under the Schedule to rule, butter prepared
the Act, since the from curd would qualify
Schedule spoke of as butter defined in the
butter produced Schedule, and hence,
exclusively from milk. It the appellant was liable
was argued that the to be punished under
definition ought to be the Act.
construed strictly since
the Act entailed penal
consequences.
4. Food Inspector v Prevention of Food The effect of Section The Court held that the
Seetharam Rice and Adulteration Act, 1954 20 -A was to exclude provision ought not be
Oil Mills - Section 20-A the application of the strictly construed in
1975 Crilj 479 [LNIND Code of Criminal favour of the accused,
1974 KER 103] Procedure, 1898, in a as it would defeat the
case where the object of the
manufacturer, dealer or amendment that added
distributor of a food Section 20-A i.e.
product was found to effective punishment of
be involved in the act the manufacturer,
of adulteration. Section dealer or distributor
20-A provided that involved in
such a person could be adulteration. The Court
proceeded against at accordingly held that
trial as if prosecution the provision did not
had been initiated suffer from any
against him. infirmity, and there was
no need for fresh
prosecution
proceedings for the
aforementioned
categories of people.
5. N.K. Jain v C.K.Shah Employees Provident The question before The Court observed
AIR 1991 SC 1289 Funds and the Court was whether that there ought to be a
[LNIND 1991 SC 173] Miscellaneous cancellation of an balance between strict
Provisions Act,1952 - exemption from paying construction and the
Section 17 Provident Funds would legislative purpose,
amount to a penalty, and held that that the
and hence, could not cancellation of an
be imposed without exemption did not
proper legislative amount to a penalty
process. within the meaning of
Section 14 (2A). It
could not be said that
mere cancellation of an
exemption granted
under Section 17
amounts to a penalty
particularly expected to
be stringently
construed.
6. Pawan Kumar v Ashish Negotiable Instruments It was argued that The Court rejected the
Enterprises Act, 1881 - Section 138 since all the conditions contention of strict
1992 Crilj 1619 under Section 138 interpretation i.e.
were not complied holding the conditions
with, the complaint under Section 138
ought to be quashed mandatory, and held
by the Court. that there was a case
Page 6 of 7
Conclusion
of insufficiency of funds
made out, by virtue of
which the complaint
under Section 138 was
valid and not liable to
be quashed.
7. Balram Kumawat v Wild Life (Protection) Whether mammoth The Court rejected a
Union of India Act, 1972 ivory imported in India contention of strict
AIR 2003 SC 3268 answers the construction, and relied
[LNIND 2003 SC 714] description of the on the dictionary
words ivory imported in meaning of the
India contained in the expression ivory to
Act. It was argued that include mammoth ivory
the expression ivory in it.
ought to be strictly
construed in favour of
the accused, and
mammoth ivory could
not be included in it.
8. Gurcharan Singh v Customs Act, 1962 - The question before The Court rejected the
Directorate of Revenue Sections 2 (33) and the Court was whether construction offered by
Intelligence 135 the act of exporting the appellant, and held
2008 (4) SCALE 403 inferior quality that on a plain reading
[LNIND 2008 SC 802] garments was an of Section 135, it was
offence under Section evident that the export
135 of the Act. Section of prohibited goods
135 provided for penal was per se an offence,
consequences for which stood alone, and
exporting on prohibited the application of the
goods as defined in first part of Section 135
Section 2 (33) . It was (proscription on the
argued that Section evasion of duty) did not
135 would only be have to be satisfied for
attracted if both its proceedings to be
parts are satisfied i.e. initiated under the Act.
there must be an
evasion of duty, and
there ought to have
been an export of
prohibited goods.
9. Jyoti Harshad Mehta v Special Court (Trial of It was argued that the The Court observed
Custodian Offences Relating to jurisdiction of the that the Act was a
(2009) 10 SCC 564 Transactions in Special Court was Special statute and a
Securities) Act, 1992 strictly confined to the complete Code in itself.
period from 01.04.1991 The purpose and
to 06.06.1992, and the object for which it was
Court would not have created was to punish
the power to the persons who were
investigate and give involved in the acts of
any findings pertaining criminal misconduct in
to any transaction respect of defrauding
entered into prior to the banks and financial
statutory period. This institutions. On the
related to the purchase basis of these
of property by Harshad observations, the Court
Mehta prior to the held that the
exposure of his transactions were
securities scam. subject to the
jurisdiction of the Act.
Page 7 of 7
Conclusion
10. M/S Laxmi Dyechem v Negotiable Instruments The question before The Court admitted
State of Gujarat Act, 1881 - Section 138 the Court was whether that Section 138 used
2012 (11) SCALE 365 an incorrect signature expressions such as
[LNIND 2012 SC 758] on the cheque would insufficient funds and
also qualify as one of dishonour. Discarding
the situations that strict interpretation, the
would entail penal Court held that the
consequences under situations explicitly
Section 138. mentioned in Section
138 were just species
of ways in which
cheques could be
rejected, and did not
limit the scope of
Section 138 . Hence,
the situation before the
Court was also held to
be within the ambit of
Section 138.
End of Document
Introduction
NS Bindra
Fiscal Statutes
Introduction
The previous chapter showed that penal statutes are read strictly because they deprive people of their liberty.
Freedom is the default situation of people in a democracy hence any legislative initiative which denies that liberty
from them should be construed strictly. In this chapter we examine the other liberal presumption that people are
entitled to the property they have created by their own effort. The expropriatory statutes were to be strictly
construed for that reason. For taxation to qualify as taxation it is important that it should not be expropriatory; it
should only take a part of the taxing entitys earnings. Even though taxation is only about taking a part of the
earnings the fact that taxation takes away that which has been earned by the taxed entity; and that which they
would retain if there were no statutory provision charging tax; statutory provisions imposing tax are strictly
construed. In this chapter the operation of this rule of strict construction in the context of taxing statutes shall be
examined.
End of Document
Taxation only by Express Words
NS Bindra
Fiscal Statutes
The concept of a welfare state is that the state is entitled to make a levy even against the will of the people sought
to be benefited. Therefore, it is of no relevance that the person sought to be benefited by the Act does not consider
it to be so,1 In a taxing provision if there are two possible constructions of the words of the statute then effect is to
be given to the one that favours the citizen and not the one that imposes a burden on him.2 If there is authority to
impose taxes after doing a certain act, the State cannot impose the taxes unless that act is done and the authority
must show, if challenged, that the act was done.3
Whenever a challenge is made to the levy of tax, its validity may have to be mainly determined with reference to the
legislative competence or power to levy the same and the adjudging this issue the nature and character of the tax
has to be inevitably determined at the threshold. It is equally axiomatic that once the legislature concerned has
been held to possess the power to levy the tax, the motive with which the tax is imposed become immaterial and
irrelevant and the fact that a wrong reason for exercising the power has also been given would not in any manner
derogate from the validity of the tax. Once the legislature is found to possess the required legislative competence to
enact the law imposing the tax, the limits of that competence cannot be judged further by the form or manner in
which that that power is exercised. It is not the nomenclature used or chosen to christen the levy that is really
relevant or determinative of the real character or the nature of the levy, for the purpose of adjudging a challenge to
the competency or the power and authority to legislate or impose a levy. What really has to be seen is the pith and
substance or the real nature and character of the levy which has to be adjudged, with reference to the charge, that
is, the taxable event and the incidence of the levy.4
If a statute professes to impose a charge, the judicial committee in Oriental Bank v Wright,5 observed as follows:
The rule is that the intention to impose a charge upon a subject must be shown by clear and unambiguous
language. The Allahabad High Court has aptly summarised the rule of interpretation of taxing statutes as follows:6It
is well-settled that in a taxing statute one has to look at what is clearly said. There is no room for any intendment;
there is no equity about a tax. Nothing is to be read in and nothing is to be implied.
In Digvijay Cement Co Ltd v Union of India,7Section 18G the Cement Control Order, 1967, passed under the
Industries (Development and Regulation) Act, 1951, required every producer of non-levy cement to pay to the
cement regulation account an amount at the rate of Rs 9 per metric tonne of non-levy cement produced. The
Cement Regulation Account was set to enable supply of cement at a subsidised price to far flung areas. This
account ran into deficit due to the rising transportation costs. Hence, along with other measures, this payment was
demanded from producers of non-levy cement to replenish the account. The producers contended that the payment
was in the nature of tax which had been imposed without authority of law. The Revenue, on the other hand, pointed
out that as there was no control on the price of non-levy cement the burden would be passed by the producer to the
customer and hence no disadvantage was caused to the producer. The court found that the amount paid by the
customers of non-levy cement belonged to the appellants. Hence, the aforesaid payment amounted to levy of tax.
The Court observed:
It is no doubt true that in taxing legislation, legislature deserves greater latitude and greater play in joints. This
principle, however, cannot be extended so as to validate a levy which has no sanction of law, however, laudable
may have been the object to introduce it and howsoever laudable may have been the purpose for which the amount
so collected may have been spent. It is clear from the above discussion that the impugned levy under Clause 9A is
Page 2 of 2
a compulsory exaction. The amount paid by the customers of non-levy cement belongs to the appellants. Such a
levy amounts to levy of tax and, therefore, invalid for want of sanction to levy such a tax. Clause 9A is, therefore,
ultra vires Section 18G of the Act.
1 .Satyanarayana Venkataraja v East Godavari Coconut and Tobacco Market Committee(1959) 1 Andh WR 285.
2 .Central India Spg, Wvg and Mfg Co Ltd v Municipal Committee, Wardha AIR 1958 SC 341 [LNIND 1957 SC 139], p
344; Ramchand v Moti Thad AIR 1962 All 353 [LNIND 1962 ALL 13], (1926) ILR 2 All 123; Delhi Municipal Committee
v Bhagwan Das (1961) ILR Punj 14; Panzy Fernandez v MF Queves AIR 1963 All 153 [LNIND 1962 ALL 159]; (1962)
All LJ 1135; Piara Lal v State of Punjab (1966) 68 Punj LR 695; Timber Traders Assn v Dist Board AIR 1965 Punj 97, p
101, per Grover J; Chandu Lal v Special Land Acquisition Officer AIR 1967 Guj 182 [LNIND 1966 GUJ 114], p 184, per
Vakil J; Ammunni Amma v Amalu Ammal (1977) Ker LT 285; Petrex Engineering Construction Pvt Ltd v Central Board
of Direct-taxes AIR 1989 SC 501 [LNIND 1988 SC 581], (1989) Tax LR 335 [LNIND 1988 SC 581], 1988 (4) JT 666
(SC), (1988) 41 Taxman 294 [LNIND 1988 SC 581], (1989) 75 CTR 20, (1989) 1 Camp LJ 43, [1989] 175 ITR 523
[LNIND 1988 SC 581], (1989) 92 (2) Taxation 3, 1989 ATJ 246, 1989 UPTC 106.
3 .Chairman, Dhanbad Municipality v Janeswar AIR 1934 Pat 82, p 84: no doubt there is a presumption that the official
acts were duly performed; but it is a rebuttable presumption; Municipal Council, Cuddapah v M & SM Ry Co (1929) ILR
52 Mad 779, AIR 1929 Mad 746; Panchayat Board v Western India Matches Co AIR 1939 Mad 421 [LNIND 1938 MAD
215].
4 .Municipal Council, Kota, Rajasthan v Delhi Cloth & General Mills Co Ltd, Delhi & Ors (2001) 3 SCC 654 [LNIND 2001
SC 617].
5 . 5 App Cas 842, p 853; Att-Gen v Milne [1914] AC 768 , p 781; Faruq Anwar Co v Market Committee AIR 1960 Mys
73; Film Exhibitors Guild v State of Andhra Pradesh AIR 1987 AP 110, (1987) 1 Andh LT 154, (1987) 1 APLJ 330 (HC).
6 .Commissoner of Income-tax Kanpur v Upper Doab Sugar Mills, Shamli (1978) All LJ 128.
7 . AIR 2003 SC 767 [LNIND 2002 SC 816]: (2003) 2 SCC 614 [LNIND 2002 SC 816].
End of Document
Rule to Determine Tax Liability
NS Bindra
Fiscal Statutes
Cases under the taxing Acts always resolve themselves into the question whether or not the words of the Act have
reached the alleged subject of taxation.8 In construing a taxing statute one has to look merely at what is clearly
said. There is no equity about a tax. There is no room for any intendment. There is no presumption as to a tax.
Nothing is to be read in and nothing is to be implied. One can only look fairly at the language used.9 When a
transaction is embodied in a document the taxing statute has to be applied in accordance with the legal rights of the
parties to the transaction, and the liability to tax depends upon the meaning and content of the language used in
accordance with the ordinary rules of construction.10
Lord Cairns observed in Partington v Attorney-General as follows:11
As I understand the principle of all fiscal legislation, it is this: If the person sought 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 the law, the case might otherwise appear to be. In other words, 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 statute.12
In Bechu Company v Assistant Commissioner,13 the validity of certain newly amended provisions of the Kerala
General Sales Tax Act, 1963, was challenged. The said provisions treated brand name holders and trademark
holders, who effected sale of manufactured goods under a brand name or a trade name, as a separate class for
point of levy of tax under the Act. The provisions were challenged by trade mark holders and brand name holders
who were not registered under the Trade and Merchandise Marks Act, 1958.14 The court held in this regard that to
restrict the application of the Act to only those trade mark and brand name holders who were registered under the
Trade Marks Act would amount to reading words into the taxing statute which was impermissible. The Court
observed:
It is settled that interpreting a taxing statute, equitable considerations are entirely out of place. Nor can taxing
statutes be interpreted on any presumptions or assumptions. The court must look squarely at the words of the
statute and interpret them. It must interpret a taxing statute in the light of what is clearly expressed: it cannot imply
anything which is not expressed; it cannot import provisions in the statutes so as to supply any assumed deficiency.
In Film Exhibiters Guild v State of Andhra Pradesh,15 the Court had to consider whether the proprietor of a Cinema
Theatre, on agreeing to pay entertainment tax under Section 5 of the Andhra Pradesh Entertainment Tax Act, 1939,
was also liable to pay show-tax under Section 4-A of the Act (inserted by an amendment in 1984). The Court held
that since Section 4-A was clear in its mandate of imposing show tax on those who were covered under Section 5, it
could not be interpreted in a manner that defeated the clear intention of the legislature to impose an additional tax.
The Court observed:
A taxing statute, if it professes to impose a charge, its intention must be expressed in clear, unequivocal and
unambiguous language. The court has to look at the language couched. A hunt into intention to find a charge is
impermissible. No equitable construction of a charging section is to be applied. The charging section is to be
construed strictly regardless of its consequences that may appear to the judicial mind to be. The burden is on the
Page 2 of 3
state to show that the subject is within the provisions of the Act. However, in construing the machinery provisions
for assessment and collection of the tax to make the machinery workable ut res valeat petius quam pereat, that is,
the court would avoid that construction which would fail to relieve the manifest purpose of the legislation on the
presumption that the legislature would enact only for the purpose of bringing about an effective result. It is not the
function of the court to hunt out ambiguities by strained and unnatural meaning, close reasoning is to be adapted;
harmonious construction is to be adhered to; all the relevant provisions are to be read together to gather the
intention from the language employed, its context, and give effect to the intention of the legislature. Ingenious
attempt to avoid tax is to be thwarted.
In Commissioner of Income-tax v Shahzada Nand& Sons,16 the Income-tax authorities issued a notice to the
respondents under Section 34 (1)(a) of the Indian Income- tax Act, 1922, in respect of assessment year 1945-46.
The assessment made pursuant to the notice was set aside by the appellate authorities on the ground that the
notice under Section 34 (1)(a) was time barred because the assessment year in question was beyond the period of
8 years covered by Section 34 (1)(a). Sub-sections (1A) to (ID) were inserted in Section 34 by the Income-tax
(Amendment) Act, 1954. Under Section 34 (1A), power was given to the Income-tax authorities to issue notice in
respect of escaped income of the previous years within the period September 1, 1939 to March 31, 1946. By the
Finance Act 1956, Section 34 (1)(a) was amended so that notices in respect of escaped income could be issued at
any time subject to certain conditions. The respondents contended that that no notice under Section 34 (1)(a) could
be issued in respect of the war years, as the escaped income of the said war years was governed by Section 34
(1A), whereunder notices could be issued only up to March 31, 1956. The Court did not agree with this contention,
and held that when Section 34 (1A) was enacted, Section 34 (1)(a) had ceased to function in respect of the war
years. Again when Section 34 (1)(a) was amended, Section 34 (1A) had practically ceased to operate as no notices
under it could be issued after-March 31, 1956. Hence, the Court held that since there was no conflict between the
two sub-sections after that date, and the demand notice issued under Section 34 (1)(a) was valid. On determination
of tax liability, the Court observed:
To arrive at the real meaning, it is always necessary to get an exact conception of the aim, scope, and object of the
whole Act
8 .Tenant v Smith [1892] AC 150, p 154, per Lord Halsbury; Landale and Clark Ltd v Jalpaiguri Municipality AIR 1937 Cal
551-52.
9 . Per Rowlett J in Re Cape Brandy syndicate [1971] 2 WLR 39, p 42 (PC); quoted in Commr of Income-Tax v Agrawal
Bros 1980 Jab LJ 207; State of Punjab v Jaswant Theatre Sunem (1990) Punj LJ 436; VP Theatre, Kurali v State of
Punjab (1990) Punj LJ 282; Controller of Estate Duty, Madras v Sri Sileskumar R Mehta(1989) 1 Mad LJ 381.
10 .Commr of Income-tax, Andhra Pradesh v Motors and General Stores Pvt Ltd AIR 1968 SC 200 [LNIND 1967 SC 176].
11 . (1869) LR 4 HL 100; Sunderdas v Collector of Gujarat (1922) ILR 3 Lah 349, p 356; Jiwan Das v Income-tax Commr,
Lahore (1929) ILR 10 Lah 657, pp 665-66; Re Makund Sarup (1928) ILR 50 All 495, AIR 1928 All 81, p 84; Emperor v
Prabhat Chandra (1924) ILR 51 Cal 504, AIR 1924 Cal 668, p 683; Re Bijay Singh (1930) ILR 57 Cal 918, AIR 1930
Cal 641, p 644; Board of Revenue, Madras v Ramandhan Chetty (1925) ILR 48 Mad 75, p 88; Noksingh v Bholusingh
AIR 1930 Nag 73, p 76; Damodar Prasad v Maqsudan Singh AIR 1928 Pat 85; Arunachalam v Commr of Income-tax,
Madras AIR 1929 Mad 769 [LNIND 1929 MAD 72], p 772;Killing Valley Tea Co Ltd v Secretary of State (1921) ILR 48
Cal 161, p 175; Bank of Chettinad v Income-tax Commr AIR 1940 PC 183, p 185.
12 .Partington v Att-Gen (1869) LR 4 HL 100, p 122; Murarilal Mahabir Prasad v BR Vad (1975) 2 SCC 736 [LNIND 1975
SC 328]; State of Punjab v Jullundur Vegetables Syndicate AIR 1966 SC 1292 [LNIND 1965 SC 232]; CA Abraham v
Income-tax Officer, Kottayam AIR 1961 SC 609 [LNIND 1960 SC 297], [1961] 41 ITR 425 [LNIND 1960 SC 297]:
Tarulata Syam v Commr of Income-tax, West Bengal AIR 1977 SC 1802 [LNIND 1977 SC 201]; Cape Brandy
Syndicate v IRC [1921] 1 KB 64, p 71; Central Coal Fields Ltd v State of Bihar AIR 1989 Pat 210, 1989 Pat LR 88 (HC)
1989 BLJR 336, (1989) BLJ 710.
13 . 2003 STC (132) 68.
14 . It was contended that treating them at par with trade mark holders, brand name holders registered under the Trade
and Merchandise Marks Act would amount to treating dissimilarly situated people alike and would be a contravention of
Article 14. Thus, it was contended that to save the provision from the vice of unconstitutionality it must be held that
holder under the Tax Act be read as registered holder.
Page 3 of 3
15 . AIR 1987 AP 110, (1987) 1 Andh LT 154, (1987) 1 APLJ 330 (HC).
16 . AIR 1966 SC 1342 [LNIND 1966 SC 25].
End of Document
Literal Construction
NS Bindra
Fiscal Statutes
It is well-settled that words in a taxing statute should be construed in the same way in which they are understood I n
ordinary parlance in the area in which the law is in force. It is no doubt true that in construing fiscal statutes and in
determining the liability of a subject to tax, one must have regard to the strict letter of the law.17
In Associated Cements Co Ltd v State of MP,18 the Supreme Court was considering whether the production of
refractory cement was liable to imposition of export tax. The main issue was whether refractory cement fell within
the Entry all types of cement which was liable to export tax. Expatiating on the question, the court pointed out that
cement was exclusively used as a building material and as a commodity of everyday use, whereas the main
property of refractory cement was that it could withstand very high temperatures, corrosion and abrasion. Anyone
buying cement for building would under no circumstances buy refractory cement. As the word cement had not been
defined, it had to be understood as used in common parlance. Hence, refractory cement was held to not be liable to
the imposition of export tax.
In A.V. Fernandez v State of Kerala,19 the appellant was engaged in the purchase of copra, manufacture of
coconut oil and cake, and the sale of oil and cake to parties inside the State of Travancore-Cochin and sale of oil to
parties outside the State. Under the Travancore-Cochin General Sales Tax Act, the appellant was entitled to include
in his gross turnover the total value of the oil sold by him both inside and outside the State, and to deduct from it the
whole of the value of the copra purchased by him. The Act was amended in 1951 to read as follows:
Notwithstanding anything contained in this Act...a tax on the sale or purchase of any goods shall not...be imposed
where such sale or purchase takes place in the course of inter-State trade. For the year 1951-1952, the Sales Tax
Officer assessed the appellant to sales tax on a net assessable turnover by taking the value of the whole of the
copra purchased by him, adding the respective values of the oil and the cake sold inside the State and deducting
only the value of the copra corresponding to the oil sold inside the State. It was contended for the appellant that in
the calculation of the net turnover, he was entitled to include the total value of the oil sold by him, both inside and
outside the State, and deduct therefrom the total value of the copra purchased by him. The Court held that if there
was a liability to tax, imposed under the terms of the taxing statute, then the Revenue must follow the provisions in
regard to the assessment of such liability. However, if there is no liability to tax, there could not be any assessment
either. Sales or purchases in respect of which there was no liability to tax imposed by the statute could not be
included in the calculation of turnover for the purpose of assessment, and the exact sum which the dealer was liable
to pay must be ascertained without any reference to the same. Hence, the Court upheld the assessment of the
Sales Tax Officer. In this regard, the Court observed:
It is no doubt true that in construing fiscal statutes and in determining the liability of a subject to tax one must have
regard to the strict letter of the law and not merely to the spirit of the statute or the substance of the law. If the
Revenue satisfies the Court that the case falls strictly within the provisions of the law, the subject can be taxed. If,
on the other hand, the case is not covered within the four corners of the provisions of the taxing statute, no tax can
be imposed by inference or by analogy or by trying to probe into the intentions of the legislature and by considering
what was the substance of the matter. We must of necessity, therefore, have regard to the actual provisions of the
Act and the rules made thereunder before we can come to the conclusion that the appellant was liable to
assessment as contended by the Sales Tax Authorities.
In Real Optical Co v Appellate Collector of Customs,20 the appellant imported Rough Ophthalmic Blanks and paid
customs duty on them. However, the Revenue sought to charge him customs duty on the import of glass, unlike the
Page 2 of 6
earlier charge which was made under residuary powers. The appellant argued that Rough Ophthalmic Blanks were
not glass simpliciter, but a special commodity for the purpose of manufacture of spectacle lenses, and hence, they
could not be taxed under the header of glass. The Court agreed with the appellant, and held:
It is settled law that in interpreting items in statutes like the Excise Acts or the Sales Tax Acts resort should be had
not to the scientific or technical meaning of the terms or expressions used but to how the products identified by the
class or section of people dealing with or using the product. However, if any terms or expression has been defined
in the enactment then it must be understood in the sense in which it is so defined. Thus a general merchant dealing
in glass or tableware cannot be regarded as dealing in goods used for making spectacles.... A general merchant
dealing in glass or tableware does not deal in articles like Rough Optical Blanks with optical properties, which may
be used for making spectacles. The functional character of Rough Optical Blanks is different from glass or
glassware, as these commodities are used for different purpose viz. making of optical lenses, etc. Rough Optical
Blanks are purchased by manufacturer of spectacles for making spectacle lenses not for the purpose of other
glasses or glassware including tableware.
In AK Munuswamy Mudaliar& Co v State of Madras,21 the assessing authority found that the assessees had
effected the purchase of raw hides outside the State, due to which no tax was payable on the purchase price of this
quantity of untanned hides and skins under Rule 16 (2) of the Turnover and Assessment Rules under the Madras
General Sales Tax Act.. However, the authority held that when these goods were tanned in the assessees tannery
and were sold by them as tanned hides and skins, the assessees were bound to pay sales tax on their sale
turnover on the ground that they had not paid sales tax at the stage of their purchase. It was contended by the
assessees that since they had not paid sales tax on the first purchase, they could not be deemed to have paid it,
and be charged under the aforementioned Rule. The Court held:
The normal and grammatical meaning of the words paid the tax leviable under the Act in Rule 16 (3) of the Madras
General Sales Tax (Turnover and Assessment) Rules, would be paid such tax if any as has been levied under the
act. As Rule 16 provides for single-point taxation only it follows that if a licensed tanner has paid such tax as was
payable by him on his purchase turnover, the words of sub-r (3) would confer upon him exemption from payment of
tax on his sale turnover. Moreover, if the sub-rule were so read as to impose a tax liability on the sales of licensed
tanners, there is no single point all fixed to exempt from tax the series of sales which such tanner and as the rules
have not fixed a single-point for fixing liability in respect of such series of transactions, the imposition of the tax by
sub-r (3) would be invalid as contravening the specific direction in Section 5 (vi) of the Act. Hence, no tax can be
levied on sales by licensed tanners, where they have not paid tax on their purchases because such purchases
being outside the state are not subject to taxation under the Madras General Tax Act.
In Union of India v IND-Swift Laboratories,22 The respondent was a company engaged in the manufacture of bulk
drugs, and had availed CENVAT credit on invoices of capital goods and manufactured material. On a search, the
invoices were found to be fake and the company was served a show cause notice of the same. The company
appeared before the settlement commission and paid the amounts imposed by the settlement commission. The
High Court held that that liability to pay interest arises when CENVAT credit has been taken and utilized wrongly or
has been erroneously refunded, and that interest would be payable from the date on which the CENVAT credit is
utilized wrongly and not from the date it was availed. The Union preferred an appeal to the Supreme Court. Rule 14
of CENVAT Credit Rules, 2002, read as follows: Where the CENVAT credit has been taken or utilized wrongly or
has been erroneously refunded, the same along with interest shall be recovered from the manufacturer or the
provider of the output service...
The Supreme Court disagreed with the High Courts reading down of the expression taken or utilized wrongly as
taken and utilized wrongly. The Court held that there was no reason to invoke the doctrine of harmonious
construction where the words of the provisions were sufficiently clear. The Court further observed reading words
and expressions not found in the provision/statute was not open to the Court when no need for the same arose. The
aforementioned observations of the Supreme Court were said to be applicable in stronger measure to fiscal
statutes. Hence, the expression taken or utilized wrongly was held to be read as it is, and judgment of the High
Court was reversed by the Supreme Court.
Taxing Statute to be Construed Strictly to Give Power to Impose Tax
In R.K.Bala v Commr of Income-tax,23 it was argued by the appellant that the expression to make the return
occurring in Section 23 (4) of the Income Tax Act, 1922, did not connote any concept of delivery of the Return to the
Page 3 of 6
Income-tax Officer or receipt of the same by the said Officer. According to the appellant, it was sufficient
compliance with the provisions of Section 23 (4) if it was proved beyond doubt that the assessee had prepared the
Return no matter whether it was actually received or not by the Income-tax Officer. The Court rejected this
contention, and held:
The term used in a section should be interpreted with reference to the context in which expressions have been used
in the statute. In Section 23 (4) of the Income-tax Act, the expression has not made a return or a revised return
appears as a default clause providing for legal consequences on account of non-compliance with the provisions of
Section 22 . The word make as used in Section 23 (4) conveys the same meaning as the words furnish and deliver
used in Section 22 (2) and its proviso; otherwise there would be no meaning in the default provision contained in
Section 23 (4) . If there is no request on the part of the department or any prescribed rule that the return may be
sent by post, the post office cannot serve as an agent of the income-tax department, and, therefore, mere posting of
the return is not equivalent to the furnishing of the return under Section 22 (2).
Earlier Decisions and Governing Principles
Interpretation of a provision in a taxing statute rendered years back and accepted and acted upon by the
department should not be easily departed from. It may be that another view of the law is possible but the law is not
a mere mental exercise. The court while reconsidering the decision rendered a long time back particularly under
taxing statutes cannot ignore the harm that is likely to happen by unsettling law that had been once settled.24
Lord Halsbury observed in Lord Advocate v Fleming:25
And in construing such Acts we have no governing principle to look at: we have simply to go to the Act itself, to see
whether the duty claimed is that which the legislature has enacted.
No Extension by Implication
The rule of construction of a charging section is that 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. No one can be taxed by implication. A
charging section has to be construed strictly. If a person has not been brought within the ambit of the charging
section by clear words, he cannot be taxed at all.
Thus it was held in Commissioner of Wealth Tax v Ellis Bridge Gymkhana,26 that a club not incorporated under the
Companies Act, 1956, was not a unit of assessment under the Wealth-tax Act, 1957. It was further held that under
Section 3 of the Income Tax Act, 1922, Section 2 (xviii) of the Gift Tax Act, 1958, and Section 4 read with Section 2
(31) of Income Tax Act, 1961, an association of persons or body of individuals had been specifically brought in as
units of assessment. Under Section 3 (1) of the Wealth Tax Act, the charge was onevery individual, Hindu
Undivided Family and a company and not on an association of persons or a body of individuals or a firm. Hence,
the Court held that the intention of the legislature was not to treat an association of persons or a body of individuals
or a firm as a unit of assessment for the purpose of imposition of wealth tax.
No Extension by Analogy
Court fees legislations are covered in the category of fiscal enactments and must be construed strictly. At the same
time it is an established principle that court fees is payable on the substance of the relief asked for, and that, even
though the plaintiff might try to conceal the real relief which he seeks and has framed his relief in a manner which
might attract the provision of the Court Fees Act under which a lesser court-fee is payable, the court is entitled to
look to the substance and not to the mere form of the relief.27
In Koongaran Mukundan v Nalini,28 the Court was considering whether on a petition for divorce and maintenance
under Sections 10-A and 10-B of the Madras Marumakkathayam Act, 1933, Court fees could be charged at the rate
charged on suits. The Court held that such applications were not suits, and hence, a higher value of Court Fees
could not be charged. On the interpretation of Court fees legislation, the Court observed:
In a poor country like ours, the Court may not be able to render justice to all or effectively ensure the observance of
Page 4 of 6
the rule of law if parties can be scared away by demand of heavy sums initially before entry into the temple of
justice. This means that the Court-fees Act will have to be so construed that the benefit of any serious doubt must
so against the levy of fee and only if the Court, on a strict construction, finds that the proceeding comes squarely
within any of the provisions of the Act, will it direct payment thereof.
In T.S.Ramaswami Aiyar v M.A. Rangaswami Aiyar,29 the question before the Court was whether court fees
should be paid (at the rate of a plaint) by another creditor, who came in with a claim after a preliminary decree for
administration had been made in a suit for administration. The Court held that there was no specific provision in the
Court Fees Act which exactly covered the point in issue, due to which no court fees could be levied on the
appellant. Rejecting an argument of analogy with plaints, the Court observed:
And apart from that with very great respect I may say that I do not understand how any fiscal statute can be applied
by analogy. When the State requires the subject to pay a tax of any kind, that must be done by definite enactment
strictly interpreted; and that is a principle which we are bound always to defend. In my opinion, there being no
enactment requiring Court-fee to be paid on such claims as these, the learned District Munsif was wrong in his
order: these petitions should be allowed and the claims inquired into without Court-fee: if the petitioners have now
paid Court-fees, they should be refunded.
No Straining of Language
Thus if the legislature intends to assess the estate of a deceased person to tax charged on the deceased in his
lifetime, the legislature must provide proper machinery and not leave it to the court to endeavour to extract the
appropriate machinery out of the very unsuitable language of such statute.30
No equitable Construction
The court must look squarely at the words of the statute and interpret them. It must interpret a taxing statute in the
light of what is clearly expressed; it cannot imply anything which is not expressed; it cannot import provisions in the
statute so as to supply any assumed deficiency. There is no equity about a tax and there is no presumption as to
tax. Nothing is to be read in and nothing is to be implied.31 While equitable considerations are of no avail in the
construction of taxing statutes, a proper balance must be struck between the essential needs for Revenue of a
modern welfare state on the one hand and the desirability that the citizen must know his liability clearly before he
can be called upon to contribute to the Revenue on the other.32
In Cape Brandy Syndicate v Inland Revenue Commissioners,33 Rowlatt J. remarked:
In a taxing Act one has to look merely at what is clearly said. There is no room for any intendment. There is no
necessity about a tax. There is no presumption as to a tax. Nothing has to be read in, nothing is to be implied. One
can only look fairly at the language used.
In Nalini B Saraf v Assistant Controller of Estate Duty,34 the question the Court was considering was whether the
Revenue was liable to pay interest on the amount due as refund of estate duty which became payable on account
of orders of the Appellate Tribunal, in the absence of any specific provision in the Estate Duty Act, 1953. The claim
for interest on refund was made on the ground that since there was no prohibition on payment of interest in the Act,
interest was payable on equity. It was contended on behalf of the Revenue department that in a taxing statute,
unless the statute itself specifically provided for interest for refunds, no interest was payable and equity had no role
here.
The court held that there could be no payment of interest in such a case unless the statute which enables the
appellate authority to annul the assessment and order refund specifically provides for payment of interest. It was
noted by the court that most taxing statutes specifically provide for payment of interest on certain amounts which
becomes due as refund to an assessee pursuant to final assessment. Since the legislature in providing for payment
of interest in respect of certain amounts under the Estate Duty Act had specifically left out payment of interest on
refunds, it would not be proper to interpret the section in the light of equity. The Court observed that ordinarily, in
the interpretation of taxing statutes, courts take the line that liability of an assessee would arise only if there was a
Page 5 of 6
clear provision to that effect in the taxing statute. In the case at hand, the court had extended the same reasoning to
the Revenue by refusing to expand its liability without express provision to that effect.
Consideration of Reason and Justice Not Material
In Sales-tax Commr v AK Mahboob Co,35 the Court while considering whether the amount covered by railway
freight should be charged against the dealer under Section 2 (h)(i) of the CP and Berar Sales Tax Act, 1947, held in
favour of the levy, and held that considerations of injustice ought not to weigh with the court in construing a fiscal
statute. The words of a statute ought to be construed in their natural sense irrespective of considerations of
hardship.
No Extension by Fiction
In Commr of Sales-tax v Modi Sugar Mills Ltd,36 the respondent company was a manufacturer of edible and non-
edible oils and was registered as a dealer under the United Provinces Sales Tax Act, 1948. Under Section 7 (1) of
the Act read with Rule 39 of the U. P. Sales Tax Rules, the respondent exercised the option of being assessed on
the turnover of the previous year and submitted its return for the assessment year 1948-49 on its taxable turnover
of the previous year ending May 31, 1947. The Sales Tax Officer assessed the turnover in respect of edible oil at 3
pies per rupee under Section 3, but in respect of non-edible oil he held that since a notification dated June 8, 1948,
issued under Section 3 (A) had come into force from June 9, of the assessment year providing for the levy of tax at
6 pies per rupee, the assessee was liable to be assessed at 3 pies per rupee on the turnover during the first 69
days of the year and at 6 pies per rupee for the remaining days of the year. This assessment was challenged by the
respondent.
The Court held that the turnover of the previous year was fictionally made the turnover of the year of assessment,
and it was not the actual or the real turnover of the year of assessment. By the imposition of a different tariff in the
course of the year, the incidence of tax liability was competently altered by the Legislature, but for effectuating that
alteration, the Legislature had not devised machinery for enforcing it against the tax payer and in this circumstance,
the court could resort to a fiction which was not prescribed by the Legislature and seek to effectuate the alteration
by devising a machinery not found in the statute.
17 .Leelabai v State of Maharashtra (1979) Mah LJ 69 [LNIND 1978 BOM 195]; Binayak Sabatho & Sons v Municipal
Council, Behrampur AIR 1985 Ori 263, (1984) Ori LR 640.
18 . AIR 2004 SC 104, (2004) 9 SCC 727.
19 . AIR 1957 SC 657 [LNIND 1957 SC 34], p 661: Commr of Income-tax, Bombay v Provident Investment Co Ltd AIR
1957 SC 664 [LNIND 1957 SC 56]; Ballimal Nawal Kishore, Punjab v General Sales Tax Act ILR (1966) 2 Punj 311;
Bajaj Electricals Ltd v State of Punjab AIR 1964 Punj 530, p 532, per Gurudev Singh J; State of West Bengal v Indian
Iron and Steel Co (1963) 67 CWN 138; Pawzy Fernandez v MF Queoros AIR 1963 All 153 [LNIND 1962 ALL 159];
Shivraj Fine Arts Litho Works, Nagpur v Authority under the Minimum Wages Act AIR 1967 Bom 223 [LNIND 1966
BOM 28], (1968) 68 Bom LR 933; Kamappa Mudaliar v State of Madras AIR 1968 Mad 329 [LNIND 1967 MAD 124];
Sarda Plywood Industries Ltd v Union of India (1993) 2 Guj LR 202.
20 . (2001) 9 SCC 391.
21 . AIR 1956 Mad 101 [LNIND 1955 MAD 77]; Commr of Income-tax, West Bengal v National & Grindlays Bank AIR
1969 Cal 71 [LNIND 1968 CAL 18].
22 . (2011) 4 SCC 635 [LNIND 2011 SC 209].
23 . AIR 1955 Ori 119, pp 121-22.
24 .Commr of Income-tax v Blkrishna Malhotra (1972) 1 SCJ 258 [LNIND 1971 SC 327], p 261, per Hegde J; Krishna Flour
Mills v Commr of Income-tax, Mysore AIR 1966 Mys 70-71, per Hegde J: uniformity of construction of various High
Courts is eminently desirable; Commr of Income-tax v Jethalal Zaverchand AIR 1967 Guj 141-42.
Page 6 of 6
25 . [1896] AC 152 ; Arunanchalam v Commr of Income-tax AIR 1929 Mad 769 [LNIND 1929 MAD 72], p 772; Heward
v King 3 CLR 117.
26 . (1998) 1 SCC 384 [LNIND 1997 SC 1343].
27 .Mohommad Wasiulhaq v Jagannath Chaudhary AIR 1958 Pat 560-61.
28 . AIR 1971 Ker 183 [LNIND 1970 KER 119], p 185, per VK Krishna Iyer J.
29 . AIR 1931 Mad 683 [LNIND 1931 MAD 87], p 687: burden can never be imposed by giving a word a meaning different
from its ordinary meaning or by giving words a forced construction which it could not ordinarily bear; Calcutta Electric
Supply Corpn Ltd v Commr, ITW, Bengal (1951) 55 CWN 261; Chandra Dhar v Ram Janki AIR 1957 All 90 [LNIND
1956 ALL 141]; Jitendranath v Commr of Paduria Municipality AIR 1967 Cal 423 [LNIND 1966 CAL 199]; Madhya
Pradesh Electricity Board v Commr of Sales-tax AIR 1968 MP 163 [LNIND 1967 MP 107].
30 .Commr of Income-tax, Bombay v Reid AIR 1931 Bom 333, 335; Income-tax Commr, Bombay v Chunilal B Mehta AIR
1935 Bom 423, p 425; IRC v Wolfsan [1949] 1 All ER 865, p 868; Rukmaji Rao v Government of Andhra Pradesh AIR
1971 AP 114 [LNIND 1970 AP 123], 116, per Kondaiah J.
31 .Baidyanath Ayurved Bawan Pvt Ltd v Excise Commr [1971] 2 SCR 590 [LNIND 1970 SC 420], pp 592-93, per Hegde
J; Commr of Income-tax Bai Vira (1965) 6 Guj LR 583, [1965] 3 ITR 100; Commr of Income-tax, Patiala v Sahajanand&
Sons AIR 1966 SC 1342 [LNIND 1966 SC 25]; NV Shannigham& Co v Commr of Income-tax, Madras (1970) 2 SCC
139 [LNIND 1970 SC 228]; Innamuri Gopalan v State of Andhra Pradesh (1964) 1 SCJ 67, [1964] 2 SCR 888 [LNIND
1963 SC 371]; Commr of Income-tax, West Bengal v Central India Industries (1972) 1 SCJ 10; Commr of Income-tax v
Madho Prasad 1976 UJ 810 (SC); Commr of Income-tax v Maharashtra Sugar Co AIR 1971 SC 2434 [LNIND 1971 SC
384]; Commr of Sales-tax v Modi Sugar Mills AIR 1961 SC 1047 [LNIND 1960 SC 252]; Giokaraju Rangaraju v State of
Andhra Pradesh AIR 1981 SC 1473 [LNIND 1981 SC 236]; Commr of Income-tax, Bihar, Ranchi v Dungarmal
Tainwala (1991) 1 BLJR 478.
32 .Shahzada N and & Sons v Central Board of Revenue AIR 1962 Punj 74.
33
. [1921] 1 KB 64, p 71; SI Railway v Panchayat Board, Mandapam AIR 1943 Mad 733, p 736; Best & Co Ltd v Madras
Corpn AIR 1924 Mad 420, p 430; Jiwan Singhji v Members of
Tribunal AIR 1957 Bom 182 [LNIND 1957 BOM 22], p 185; New Shorrockspg&Mfg Co Ltd v NU Rawal AIR 1959 Bom
477 [LNIND 1958 BOM 159], 480; Panchamlal Sikrilal v Municipal board, Rewa 1962 Jab LJ 232, AIR 1962 MP 105;
Kanpur Sugar Works Ltd v STO (1962) All LJ 1028.
34 . 2004 (188) CTRULE 169, 2004 (268) ITR 223, 2004 (135) Taxman 298.
35 . AIR 1956 Nag 16.
36 . AIR 1961 SC 1047 [LNIND 1960 SC 252], per Shah J; NH Lokohmi Bai v Commr of Wealth-tax (1994) 72 Taxman
455 (SC), (1944) 2 SCC 534.
End of Document
Strict Construction
NS Bindra
Fiscal Statutes
Strict Construction
One must find words to impose the tax, and if words are not found which impose the tax, it is not to be imposed. If
the legislature has failed to classify its meaning by the use of appropriate language, the benefit thereof must go to
the tax-payer. In case of doubt, that interpretation of a taxing statue which is beneficial to the tax-payer must be
adopted.37 Undoubtedly, if two views are possible it is better to lean in favour of that construction which would lead
to the least amount of difficulty and which would be more favourable to the assessee.38 In the case of taxing
statutes it has been held by the Supreme Court in several cases that one must have regard to the strict letter of the
law and if the Revenue satisfies the court that the case falls strictly in the provisions of law, the subject can be
taxed.39
In Akbar Badrudeen Jiwaniv Collector of Customs,40 the question before the Court was whether the import of non-
marble calcerous stones, such as limestone, would qualify as the import of marble, which was a restricted good, the
import of which was liable to be penalized. The Court held that non-marble calcerous stones could not be
considered as marble within the entry in the restricted list. An argument of applying the common parlance test was
rejected, and on the construction of tariff entries, the Court observed:
There is no doubt that the general principle of interpretation of tariff entries accruing in a text (tax) statute is of
commercial nomenclature and understanding between persons in the trade but it is also a settled legal position that
the said doctrine of commercial nomenclature or trade understanding should be departed from in a case where the
statutory content in which the tariff entry appears, requires such a departure. In other words, in cases where the
application of commercial meaning or trade nomenclature runs counter to the statutory content in which the said
word was used then the said principle of interpretation should not be applied. Trade meaning or commercial
nomenclature would be applicable of a particular product description occurred by itself in a tariff entry and there is
no conflict between the tariff entry and any other entry requiring to reconcile and harmonise that tariff entry with any
other entry.41
In STP Ltd v Collector of Central Excise,42 the Court was considering the benefit of exemption under the Central
Excise and Salt Act, 1944, as regards an exemption on the commodity tar distillation product. It was argued by the
Revenue that in view of the dictionary meaning of tar, coal tar was a variety of pitch since by the distillation of coal
tar, a type of pitch was obtained. The Court rejected this contention, and held that the expression coal tar comes
within the phrase tar distillation product. The Court observed that if there was any doubt in the construction of any
provision of a taxing statute, that doubt must be resolved in favour of the assessee.
In George Banerji v Emperor,43 in the Allahabad High Court was considering whether a bicycle with a motor wheel
attachment would be taxed. The Court held that the vehicle was a bicycle, irrespective of the attachment, and if the
Municipal authorities wanted to impose a fiscal burden on him, they ought to issue a notification which would
explicitly and clearly bring bicycles within the definition of motor vehicles to impose an additional liability by way of
tax. The Court observed:
The question is one of taxation, and, as the sessions judge rightly says in his order of reference, enactments which
render the public liable to pay taxes or charges or this nature must be construed strictly; or in other words, unless
the language under which they are sought to be charged is perfectly clear, the charging authorities strictly; or in
other words, unless the language under which they are sought to be charged is perfectly clear, the charging
Page 2 of 3
Strict Construction
authorities are not entitled to assess a charge inasmuch as the public have a right to know what exactly are the
charges imposed upon them.
In Century Club, Bangalore v State of Mysore,44 the Court held that Sections of the 2 (1)(k) and 2 (1)(t) of Mysore
Sales Tax Act, 1957, would not apply to supplies of goods or articles at fixed rates by the Management of a
Members Club registered or unregistered to its members, since supplies to members were not strictly sales within
the meaning of the Act.
In Chairman, Municipality of Balasore v Mahammad Abdul Sattar Khan,45 the respondent contended that the
assessment of personal tax under Section 82 of the Bihar and Orissa Municipal Act, 1922, was ultra vires, as the
tax had been fixed on a consideration of his income from properties outside the jurisdiction of the Balasore
Municipality. The appellant argued that as soon as the income came in the hands of the assessee, who was a
resident within the municipal jurisdiction, it would come within the jurisdiction of the municipality even though the
property was situated outside. The Court agreed with the respondent, and held that the Balasore Municipality had
no jurisdiction to levy personal tax.
In Commissioner of Central Excise v M/S Connaught Plaza Restaurant,46 the question before the Court was
whether soft serve served at the Mcdonalds was classifiable under Heading 21.05 (ice-cream) or under Heading
04.04 or 2108.91 (Edible preparations, not elsewhere specified or included) of the Central Excise and Tariff Act,
1985. The latter category did not carry any excise duty as there was no process of manufacture. The revenue
appealed to the Supreme Court against decisions of the Customs, Excise and Gold Tribunal (now the CESTAT)
that classified soft-serve into the latter category. The appellant argued that soft serve was understood as ice-cream
in common parlance i.e. in the comprehension of the common man and hence, it ought to be classified in the
category of ice-cream under heading 21.05 of the Act. Per contra, the respondent argued that soft serve was
distinct from ice-cream since ice-cream was meant to have milk fat content above 8% whereas soft serve contained
around 5% of milk fat. Furthermore, even on an invocation of the common parlance test, soft-serve ought to be
distinct from ice-cream as it was marketed as soft-serve all over the world. The court invoked the common parlance
test i.e. in the absence of a statutory definition, entries in taxing statutes ought to be construed in terms of their
commercial or trade understanding, or according to their popular meaning. Apart from rejecting the technical
submissions of the assessee (Milk fat content), the Court placed reliance on the common parlance test to hold that
the common person would not differentiate between ice-cream and soft-serve. For the common person, both terms
were interchangeable while consuming the product at Mcdonalds and due to the restaurant being a brand name, it
could not claim the exemption awarded to small scale enterprises. Hence, the Court held that for purposes of the
1985 Act, soft-serve was tantamount to ice-cream, and liable to excise duty as such.
37 . AIR 1965 AP 420 [LNIND 1964 AP 164], p 424, per Anantanarayana Ayyar J: when the legislature used both the
expressions fee and tax in the Act, it must be presumed to have understood the distinction between the two
expressions; Pravulal v State of Orissa AIR 1960 Ori 43 [LNIND 1959 ORI 19]-44, per Narasimham CJ.
38 .Alladi Venkateshwarly v Govt of Andhra Pradesh AIR 1978 SC 945 [LNIND 1978 SC 72]; Leela Bai v State of Bombay
AIR 1979 Bom 206 [LNIND 1978 BOM 195]; Diwan Bros v Central Bureau of Investigation AIR 1976 SC 1503 [LNIND
1976 SC 224]; State of Tamil Nadu v MK Kandaswami AIR 1975 SC 1871 [LNIND 1975 SC 213]; Commr of Income-
tax, Bhopal v Badri Prasad Agarwal (1982) MPLJ 796.
39 .Ali Khan (Mhd) &Ors v Commr of Wealth-tax, New Delhi (1997) 3 SCC 511 [LNIND 1997 SC 1969].
40 . AIR 1990 SC 1579 [LNIND 1990 SC 82], (1990) (1) JT 256 [LNIND 1990 SC 82].
41 .Union of India v Delhi Cloth and General Mills [1963] Supp (1) SCR 586, AIR 1963 SC 791 [LNIND 1962 SC 333]:
doctrine was applied; Dunlop India Ltd v Union of India [1976] 2 SCR 98 [LNIND 1975 SC 390], AIR 1977 SC 596;
contra KV Varkey v Sales-tax Officer (1954) 5 STC 348, AIR 1956 Tr&Coch, 105; Cannanore Spg and Wvg Mills Ltd v
Collector of Customs and Central Excise, Cochin [1970] 2 SCR 830 [LNIND 1969 SC 403], AIR 1970 SC 1950 [LNIND
1969 SC 403]; Healthways Dairy v Union of India AIR 1976 SC 2221 [LNIND 1975 SC 391](Spl Bench); both principles
explained in Collector of Central Excise, Kanpur v Krishna Carbon Paper Co (1989) 1 SCC 150 [LNIND 1988 SC 455],
AIR 1988 SC 2223 [LNIND 1988 SC 455]; in Healthways Dairy v Union of India AIR 1976 SC 2221 [LNIND 1975 SC
391]; it is by new well-known that custom traffic import scheme hardly let any scope to go in for trade parlance or
common parlance because it statutorily defined almost everything with the help of rules of interpretation and
explanatory notes; in such a scheme the statutory definition must prevail over the trade parlance or any other aids to
Page 3 of 3
Strict Construction
interpretation; Supreme Court quoted observation of Pollock B in Grenfell v Inland Revenue Commr (1976) 1 Ex D 242,
p 248.
42 . (1998) 1 SCC 292; Municipal Corpn for the City of Thane & Ors v Asmaco Plastic Industries & Ors (1999) 1 SCC 372.
43 .(1916) 36 Ind Cas 877; Pithal Chhagan& Sons v State of Gujarat (1966) 17 STC 96 [LNIND 1965 GUJ 34] (Guj):
where it was held that the word goods taxable under the statute (Sales Tax Act) must be construed not in any technical
or scientific sense but as understood in common parlance.
44 . AIR 1967 Mys 25
45 . AIR 1954 Ori 224.
46 . Available at http://judis.nic.in/supremecourt/imgs1.aspx?filename=39767.
End of Document
Fair Interpretation
NS Bindra
Fiscal Statutes
Fair Interpretation
The rule of strict construction of taxing statutes is often misunderstood. It is not the same thing as saying that a
taxing law should not receive reasonable construction.47 It is true that a taxing provision must receive a strict
construction at the hands of the courts and if there is any ambiguity, the benefit of that ambiguity must go to the
assessee. But that is not the same thing as saying that a taxing provision should not receive a reasonable
construction. The tendency of modern decisions upon the whole is to narrow down materially the difference
between what is called a strict and a beneficial construction.48 The principle of strict construction is applicable only
to charging provisions or a provision imposing penalty, and is not applicable to parts of the taxing statute which
contain machinery provisions.49
In Indian Cable Co Ltd v Collector of Central Excise,50 the Court was considering whether excise duty was validly
levied on the production of PVC compound from PVC resin. It was argued by the appellant that the process was
one of polymerization, which would not qualify as manufacture within Section 2 (f) of the Central Excises and Salt
Act, 1944. The Court applied the test of marketability to agree with the appellant, and observed:
In construing the relevant item or entry, in fiscal statutes, if it is one of everyday use, the concerned authority must
normally, construe it, as to how it is understood in common parlance or in the commercial world or trade circles, it
must be given its popular meaning. The meaning given in the dictionary must not prevail. Nor should the entry be
understood in any technical or botanical or scientific, sense. In the case of technical words, it may call for a different
approach.
47 .Murarilal v BR Vad AIR 1976 SC 313 [LNIND 1975 SC 328]; Broach Dist Co-op Cotton Sales, Ginning and Pressing
Society Ltd v Commr of Income-tax (1989) 2 SCC 679 [LNIND 1989 SC 256], 1989 SCC 351 (Tax), [1989] 177 ITR
418; Commr of Income-tax v Strawford Mfg Co Ltd (1989) Supp (2) SCC 523, [1989] 177 ITR 431 [LNIND 1989 SC
273]; Balaji Tempo Ltd, Bombay v Commr of Income-tax, Bombay City, III Bombay (1992) 3 SCC 78 [LNIND 1992 SC
351].
48 .Rajputana Agencies Ltd v Commr of Income-tax AIR 1959 SC 265 [LNIND 1958 SC 125].
49 .Commissioner of Income tax, Calcutta v National Tag Traders AIR 1980 SC 485 [LNIND 1979 SC 471].
50 . AIR 1995 SC 64 [LNIND 1994 SC 1602].
End of Document
Exemptions from Taxation
NS Bindra
Fiscal Statutes
It is true that when in a fiscal provision if benefit of exemption is to be considered this should be strictly considered.
However, the strictness of the construction of exemption notification does not mean that the full effect to the
exemption notification should not be given by any circuitous process of interpretation. After all, exemption
notifications are meant to be implemented.51 They have to be interpreted strictly and in its entirety and not in
parts.52 Where an exemption is conferred by a statute by an exemption clause, that clause has to be interpreted
liberally and in favour of the assessee but must always be without any violence to the language used. The rule must
be construed together with the exemption provision, which must be regarded as paramount.53 If the tax-payer is
within the plain terms of the exemption it cannot be denied its benefit by calling in aid any supposed intention of the
exempting authority.54 One of the settled principles of construction of the an exemption notification is that it should
be construed strictly but once a good is found to satisfy the test by which it falls in the exemption notification then it
cannot be excluded from it by resorting to applying or construing such notification narrowly and once the good is to
fall even narrowly in any of these categories there appears no justification to exclude it.55 Exemption notification
cannot be unduly stretched to produce unintended results in derogation of the plain language employed therein.56
Taxation laws are not in the nature of penal laws; they are substantially remedial in their character and are intended
to prevent fraud, suppress public wrong and promote the public good. They should, therefore, be construed in such
a way as to accomplish those objects.57
The English law as to exemption of the crown and crown property from payment of tolls, poor rates and other taxes,
local or imperial, imposed by statute rests, partly upon historical reasons and principally upon judicial decision
which do not proceed a course of reasoning of principle which will be binding on Indian courts. According to the
uniform course of Indian legislation, statutes imposing duties or taxes bind government as much as its subjects,
unless the very nature of the duty or tax is such as to be inapplicable to government. Whenever it is the intention of
the legislature to exempt government from any duty or tax which in its nature is not applicable to government, the
government is specially exempted, and this is specially so in regard to taxes imposed by the legislature for the
benefit of local authorities and in particular municipalities.58 In Armytage v Wilkinson,59 the judicial committee
express their dissent from the principle that in a taxing Act provision establishing an exception to the general rule of
taxation are to be construed strictly against those who invoke their benefit.Yet, where an Act, after imposing a
stamp duty on contracts, exempted those which were made relative to the sale of goods, a guarantee for the
payment of the price on such a sale was held included in the exemption, the same words being susceptible of
meaning different things when used to impose a tax, or to exonerate from it.60 It is to be observed that all
exemption from taxation increase the burden on other members of the community and should, therefore, be
deprecated.61
As a general rule grants of tax exemptions are given a rigid interpretation against the assertion of the tax-prayer
and in favour of the taxing power. The basis for the rule here is the same as that supporting a rule of a strict
construction of positive Revenue lawsthat the burdens of taxation should be distributed equally and fairly among the
members of society. However, exemption claimed by the state or its sub-divisions are usually liberally construed
and the same rule had frequently been applied to exemption made in favor of charitable organisation.
Page 2 of 5
Crawford opined:63
Provision providing for an exemption may be properly construed strictly against the person who makes the claim of
an exemption. In other words, before an exemption can be recognised, the person or property claimed to be exempt
must come clearly within the language apparently granting the exemption...Moreover exemption laws are in
derogation of equal rights, and this is an equally important reason for construing them strictly...One other possible
instance exists in which a tax law may be liberally construed. If the law is designed to prevent fraud upon the
Revenue, even though it is a penal Act, some decisions favour a liberal construction. Such a statute, however, is
more properly a statute against fraud rather than a taxing statute, and for this reason properly subject to a liberal
construction in the governments favor.
In Bank of Commerce v Tennessee,64 the Court observed:
Taxes being the sole means by which sovereignties can maintain their existence, any claim on the part of anyone to
be exempt from the full payment of his share of taxes on any portion of his property must on that account be clearly
defined and found on plain language. There must be no doubt or ambiguity used upon which the claim to the
exemption is founded. It has been said that a well-founded doubt is fatal to the claim; no implications will be
indulged in for the purpose of construing the language used as giving the claim for the exemption, where such claim
is not founded upon the plain and clearly expressed intention of the taxing power.
In Liquidators of Pursa Ltd v Commr of Income-tax, Bihar,65 the Court held that any such machinery or plant in the
second proviso to Section 10 (2)(vii) of the Income Tax Act, 1922, referred to the machinery or plant in respect of
which the allowances were to be given under that clause. The Court further held that the words used for the
purpose of business meant that the machinery or plant was used for the purpose of enabling the owner to carry on
the business and earn profits from it. Hence, the machinery or plant must have been used for the purpose of the
business which was carried on, and the profits of which were assessable for the previous year. Thus, the proviso
was held to have no application to sale of machinery and plant which had not been used for the purpose of
business carried on the accounting year. The Court observed:
In construing an Act which imposes a burden, doubts, should be resolved in favour of the tax-payer but this general
rule cannot be applied when the taxing provision is clear and explicit or when a doubt arises in regard to a provision
granting a deduction of an exemption from payment of tax.
In Collector of Central Excise v Parle Exports Pvt Ltd,66 the respondent was engaged in the manufacture of non-
alcoholic beverage bases falling under Tariff Item 68 of Schedule I of the Central Excise Rules, 1944. According to
the Revenue, the company manufactured the non-alcoholic beverage bases without holding a proper Central
Excise Licence, and had cleared the said goods without payment of the duty due on the beverage bases. Per
contra, the company argued that the beverage bases were exempt from duty under a notification that inter alia
exempted all kinds of food products and food preparations. The Court rejected this contention, and observed:
...the notification should not only be confined to its grammatical or ordinary parlance but it should also be construed
in the light of the context...the expression should be construed in a manner in which similar expressions have been
employed by those who framed relevant notification...the need to derive the intent from a contextual scheme. In this
case therefore, it is necessary to endeavour to find out the true intent of the expressions food products and food
preparations having regard to the object and the purpose for which the exemption is granted bearing in mind the
context and also taking note of the literal or common parlance meaning by those who deal with those goods, of
course bearing in mind, that in case of doubt only it should be resolved in favour of the assessee or the dealer
avoiding, however an absurd meaning. Bearing the aforesaid principles in mind, in our opinion, the Revenue is right
that the non-alcoholic beverage bases in India cannot be treated or understood as new `nutritive material absorbed
or taken into the body of an organism which serves for the purpose of growth, work or repair and for the
maintenance of the vital process and an average Indian will not treat non- alcoholic beverage bases as food
products or food preparations in that light.
In Union of India v Wood Papers Ltd,67 the question before the Court was whether an exemption notification that
allowed for an exemption from excise duty on the manufacture of paper for any factory commencing production
Page 3 of 5
would extend to a factory that was already in production at the time. The Court held in favour of the Revenue and
interpreted the exemption strictly. It observed:
Literally exemption is freedom from liability, tax or duty. Fiscally it may assume varying shapes, especially in a
growing economy. For instance tax holiday to new units, concessional rate of tax to goods or persons for limited
period or with the specific objective etc. That is why its construction, unlike charging provision, has to be tested on
different touchstone. Infact an exemption provision is like an exception and on normal principle of construction or
interpretation of statutes it is construed strictly either because of legislative intention or on economic justification of
inequitable burden or progressive approach of fiscal provisions intended to augment state Revenue. But once
exception or exemption becomes applicable no rule or principle requires it to be construed strictly. Truly, speaking
liberal and strict construction of an exemption provision are to be invoked at different stages of interpreting it. When
the question is whether a subject falls in the notification or in the exemption clause then it being in nature of
exception is to be construed strictly and against the subject but once ambiguity or doubt about applicability is lifted
and the subject fails in the notification then full play should be given to it and it calls for a wider and liberal
construction.
In Collector of Customs v MJ Exports Ltd,68 where the question was regarding the scope of an exemption
notification, according to which an exemption was provided if life saving drugs or medicine or equipment were being
imported, it was held that legislative intent was clear that such an exemption could only be granted when these
commodities were being imported for them to be used in India, but if they were imported for purposes of exporting
from India, the benefit of the exemption could not be granted.
In Oxford University Press v Commissioner of Income-tax,69 the Court was considering a provision for exemption
relating to universities under the Income Tax Act, 1961. It was argued that this included foreign universities, as well
as the press owned by it, which was engaged in printing, publishing and sale of books in India. The Court held that
while the exemption extended to foreign universities, it would not extend to presses owned by them. The Court
observed that the purpose for which the institution was established and the source from which the income was
earned were relevant considerations to determine whether the income earned by the assessee was exempted from
tax, and that the exemption was meant to encourage institutions engaged in educational activities, but that would
not include institutions engaged in commercial activities with the intention of earning profit.
In Commissioner of Central Excise v Sunder Steels Limited,70 the Court was considering an exemption which inter
alia read as follows: an integrated steel plant which manufactures or produces ingots or billets and rolled products,
starting from the stage of iron ore, within the same premises. The Revenue argued that since most of the iron
sponge produced in the factory was not used for the production of ingots, the assessee could not claim benefits
under the exemption. The Court rejected this contention, and held:
If the intention was to restrict benefit to only those plants in which the entire production from iron ore stage to ingots
was to be in the same premises the Notification would have so specified. The Notification does not even provide
that if any item is purchased from outside then the benefit would be lost. In the absence of any such restrictions it
must be held that the Notification merely requires that all the four conditions be fulfilled. If all four conditions are
fulfilled, their benefit cannot be denied on the ground that certain percentage of production is from material
purchased from outside.
In Commissioner of Central Excise v Akay Cosmetics,71 the Court was considering whether an exemption should
be granted for secondary packing, turnover tax, freight, insurance, octroi, handling charges and cost of bought-out
items. The court observed that in the matter of interpretation of tax laws, deductions were admissible in terms of the
provision, and not on the basis of general concepts. As no provision granting such an exemption had been made,
the Court held that the deductions could not be allowed.
In Commissioner of Central Excise v Hari Chand Shri Gopal,72 the respondent sought to argue that the procedure
under Rules 174 and 192 of the Central Excise Rules, 1944, were directory and not mandatory. Hence, not filling
Form AL-6 and obtaining a L-6 license would not have the effect of denying the respondent the benefit of the
exemption. The Court rejected this contention, and on a strict construction of the exemption, held that the assessee
who wanted to avail of the benefit of the exemption had to follow the procedure laid down, and the conditions given
in the rules were mandatory requirements for claiming the exemption. The Court observed:
Page 4 of 5
A person who claims exemption or concession has to establish that he is entitled to that exemption or
concession...A provision providing for an exemption, concession or exception, as the case may be, has to be
construed strictly with certain exceptions depending upon the settings on which the provision has been placed in
the Statute and the object and purpose to be achieved...If an exemption is available on complying with certain
conditions, the conditions have to be complied with. The mandatory requirements of those conditions must be
obeyed or fulfilled exactly, though at times, some latitude can be shown, if there is a failure to comply with some
requirements which are directory in nature, the non-compliance of which would not affect the essence or substance
of the notification granting exemption.
In Commissioner of Customs v M/S Konkan Synthetic Fibres,73 the assessee was an importer of goods and
claimed exemption from paying duty on the basis of a beneficial notification. The dispute arose from the fact that the
exemption notification mentioned an exemption for High speed warping devices, with pneumatic suction devices
and drawing units. The assessee imported the devices with drawing units, but without pneumatic suction devices.
Hence, the revenue argued that the absence of pneumatic suction devices made the assessee ineligible for the
exemption. The assessee argued that a liberal interpretation be given to the notification so as to include it within the
ambit of the exemption. The Court, without much substantive discussion on interpretation, relied on previous
judgments to hold that an exemption notification ought to be interpreted strictly, but a beneficial exemption
notification ought to be interpreted liberally so as to provide encouragement to the industry being granted the
exemption. Hence, the Court held in favour of the assessee, granting it the benefit of the exemption.
Invalidity of Exemption does not Invalidate Statute
In Firm Jaswant Rai Narain v Sales-tax Officer,74 the Court while construing the proviso to Section 3, and Section
4 (1)(b) of UP Sales Tax Act, 1948, observed as regards the effect of invalidity of exemptions:
No Government can be carried on without taxation. In taxing statutes, the presumption is that the legislatures
predominant intention was to tax and the exemptions granted were secondary in importance. If the exemptions are
found to be invalid, the presumption is that the legislature would still have intended that the rest of the statute
should be enforced. On the other hand, in statutes creating offences, if the exemptions are invalid, and by reason of
their invalidity, certain objects or activities would be rendered unlawful and subject to punishment, no such
presumption can be raised. In such cases, both the objects must be held to be equally important. Applying these
principles to the provisions of the impugned statute, we find that the dominant motive of the legislature in placing
the Act on the statute book was to raise Revenue, more particularly because, in the Act, the charging section is
general in its scope.
51 . Swadeshi Polytex Ltd v Collector of Central Excise AIR 1990 SC 301 [LNIND 1989 SC 585], (1989) 44 ELT 794.
52 .Grasim Industries Ltd &Anor v State of Madhya Pradesh &Anor and Gwalior Sugar Co Ltd v Madhya Pradesh
Electricity Board &Ors (1999) 8 SCC 547 [LNIND 1999 SC 1414].
53 .Commissioner of Agricultural Income-tax v Raja Jagdish Chandra Deo (1949) 53 CWN 596; Upper India Chamber of
Commerce v Commr of Income-tax, CP and Uttar Pradesh AIR 1948 All 64 [LNIND 1947 ALL 1], p 70; Patron
Engineering Construction Pvt Ltd v Central Board of Direct Taxes AIR 1989 SC 501 [LNIND 1988 SC 581], (1989) Tax
LR 335 [LNIND 1988 SC 581], (1988) (4) JT 666 (SC), (1988) 41 Taxman 294 [LNIND 1988 SC 581], (1989) 75 CTR
20, (1989) 1 Comp LJ 43, [1989] 175 ITR 523 [LNIND 1988 SC 581], (1989) 92 (2) Taxation 3; Bindle Agro Chem. Ltd v
State of Madhya Pradesh (1991) JLR 79; Commr of Income-tax, Amrita v Strawboard Mfg Co Ltd [1989] 177 ITR 431
[LNIND 1989 SC 273] (SC).
54 .Handsaw v Dave [1969] 2 SCR 253 [LNIND 1968 SC 301], p 259, per Ram swami J.
55 .Bombay Chemical Pvt Ltd v Collector of Central Excise, Bombay AIR 1995 SCW 2175; Mac Laboratories Pvt Ltd v
Collector of Central Excise, Bombay (1995) 2 SCC 56; Rajasthan Spg and Wvg Mills Ltd, Bhilwara v Collector of
Central Excise, Jaipur (1995) 4 SCC 473 [LNIND 1995 SC 649].
56 .Collector of Customs, Bombay v MI Exports Ltd (2001) 6 SCC 756 [LNIND 2001 SC 1710].
Page 5 of 5
57 .Kapildeoram v JK Das AIR 1954 Assam 170; chira and muri do not cease to be cereals, which are exempted under
Sch 3 of the Assam Sales Tax Act, merely because rice or paddy had undergone the process of being flattened or fired
in assuming the form of chira and muri; Re Helvering North-West Steel Rolling Mills 85 L Ed 29, 33, per Balck J.
58 .Bell v Municipal Commrs of the City of Madras (1902) ILR 25 Mad 457, pp 501-02.
59 . 3 AC 355, p 369.
60 . Maxwell, Interpretation of Statutes, eleventhedn, p 280; quoting Rein v Lane 2 QB 144, per Blackburn J.
61 . Maxwell, Interpretation of Statutes, eleventhedn, p 281; quoting Inland Revenue Commrs v Forest [1899] 15 AC 334,
per Lord Halsbury LC.
62 . Sutherland, Statutory Construction, volume 3, third edn, p 296; quoting Providence Bank v Billings (1830) 29 Us 514,
7 L Ed 939; Tucker v Fergusson (1874) 89 US 527, 22 L Ed 805; United States v Denver & RGR Co (1893) 150 US 1,
87 L Ed 975.
63 . Crawford, Statutory Construction, p 506-08.
64 . 161 US 134, p 145, 40 L Ed 546.
65 . (1954) SCJ 294 [LNIND 1954 SC 20], AIR 1954 SC
66 . (1989) 1 SCC 345 [LNIND 1988 SC 559], AIR 1989 SC 644 [LNIND 1988 SC 559].
67 . AIR 1991 SC 2049 [LNIND 1990 SC 267], (1991) (1) JT 151 [LNIND 1990 SC 267] (SC), (1990) 4 SCC 256 [LNIND
1990 SC 267].
68 . (2001) 6 SCC 756 [LNIND 2001 SC 1710].
69 . (2001) 3 SCC 359 [LNIND 2001 SC 219].
70 . (2005) 3 SCC 363 [LNIND 2005 SC 127].
71 . (2005) 3 SCC 764.
72 . 2010 (12) SCALE 122 [LNIND 2010 SC 1102].
73 . (2012) 6 SCC 339 [LNINDORD 2012 SC 414].
74 . AIR 1955 All 585 [LNIND 1955 ALL 84].
End of Document
Ambiguous Words
NS Bindra
Fiscal Statutes
Ambiguous Words
In construing tax statutes, if there is any ambiguity of language, the benefit of that ambiguity must be given to the
assessee.75 Statutes which impose pecuniary burden or penalties have to be construed strictly and if on a certain
point such a statute is silent or its language is ambiguous, the doubt is to be resolved by adopting the construction
which is beneficial to the tax-payer and which avoids inconsistency and repugnance among its various provisions or
to any constitutional provision.76 A construction which would have the effect of making a person liable to pay the
same tax twice in respect of the same subject-matter would not be adopted unless the words were very clear and
precise to the effect.77 The principle is that in a taxing statute, wherever there is ambiguity of language, the
ambiguity must be resolved in favour of the person to be taxed rather than the taxing authority. However, when a
legislation advisedly confers upon the taxing authority two modes of taxation, and the authority chooses a mode
which makes it possible to raise a larger amount, it cannot be urged that the second mode is unlawful because the
first mode is more beneficial to the citizen.78
75 .Commr of Income-tax, Ahmedabad v Karamchand Premchand Ltd AIR 1960 SC 1175 [LNIND 1960 SC 143], p 1182.
76 .Chandra Industries v State of Punjab (1972) 29 STC 558 [LNIND 1972 PNH 82], p 563.
77 .Daulat Ram v Municipal Committee, Lahore AIR 1941 Lah 40, p 43.
78 .Hirabhai Asha bhai v State of Bombay AIR 1955 Bom 185 [LNIND 1954 BOM 71], p 189: the legislature empowered
the municipality to levy a water-tax under s 140 (a) of the Bombay Municipal Corporation Act or to recover water-tax
under s 169 of the Act. It is obvious that the municipality will recover a larger amount by resorting to the mode laid down
in s 169 rather than to the mode laid down in s 140 (a). But if the legislature has in its wisdom permitted the municipality
to tax the taxpayer in one way or the other, the tax-payer cannot make a grievance of the fact that he is being taxed
more because the municipality is exercising it is exercising its power under s 169 and not under s 140 (a).
End of Document
Intention of the Legislature how Far Effectuated
NS Bindra
Fiscal Statutes
The opinion that statutes passed with the intention of imposing a tax are to be so construed as to defeat that
intention, provided the words admit of several constructions and any of the constructions would have that effect;
also the opinion that if the words admit of doubt in the mind, either of the tax-collector or the tax-payer, the one
ought to refuse to collect and the other to pay, appears to require limitation. Effect is to be given to intention of the
legislature, to be collected from the context of the whole statute construed with reference to the purposes
expressed therein. A fiscal statute has to be interpreted on the basis of the language used therein and not de hors
the same. No words ought to be added and only the language used ought to be considered so as to ascertain the
proper meaning and intent of the legislation. The court is to ascribe natural and ordinary meaning to the words used
by the legislature and ought not, under any circumstances, substitute its own impression and ideas in place of the
legislatures intent as is available from a plain reading of the statutory provisions.79 It is no part of the duty of the
judges to endeavour to defeat the intention of the legislature, either in respect to the imposition of the tax of to
otherwise.
In AG v Carlton Bank,80 Lord Russel CJ. observed:
In the course of the argument reference was made on both sides to the supposed special canons of construction
applicable to a Revenue Act. For my part I do not accept the suggestion. I see no reason why special canons of
construction should be applied to any Act of Parliament and I know of no authority for saying that a taxing Act is to
be construed differently from any other Act.
In Dharmdas Hargovandas v Commr of Income-tax,81Section 4 (1)(b)(iii) of the Income-tax Act, 1922, provided that
if a person was resident in the taxable territories and income had accrued or arisen to him outside the taxable
territories before the beginning of the year but was brought into or received in the taxable territories by him during
the year, the same was to be included in his income for the purposes of assessment. The assessee had sent Rs.
100,000 from Mahalaxmi Silk Mills Ltd, Bhavanagar, to New Mahalaxmi Mills Ltd, Bombay, by a cheque drawn in
favor of the Bombay Mills, and received payment of the same amount on the same day from the Bhavnagar Mills.
Hence, the assessee sought to claim that the aforementioned income had not been brought in the state, by virtue of
which the aforementioned provision would not apply to the assessee. The Court rejected this contention, and held
that where at the request of the assessee, money was sent by the Bhavanagar Mills to the Bombay Mills, it could be
held that the sum was not liable to tax under Section 4 (1)(b)(iii). The Court observed:
The Legislature, very possibly, did not want to tax accumulated income which was not subsequently used by the
assessee, but which he disposed of in favour of others who had the right of disposal over that amount. But
whatever that may be, in a taxing statute when the Legislature has used language which in a particular case
subjects the assessee to tax and in another case does not subject him to tax, we cannot possibly construe the
section against the assessee and hold in favour of the Department that the different language used by the
Legislature must mean the same thing although obviously and patently they mean entirely different things.
In Mysore Sales International Ltd v Deputy Commissioner of Income Tax,82 the Karnataka High Court was
concerned with the question of whether buyers of arrack are exempted from the provisions of Section 206C of the
Income Tax Act 1961, being deduction of tax at source. The petitioners in this case were producers of arrack and
the arrack could be bought from the petitioners, only by excise contractors who were successful bidders and valid
permit holders. The price fixation was done by the state government in terms of the statute and this procedure, the
Page 2 of 2
petitioners contended, excluded them from the purview of Section 206C of the Act. The Karnataka High Court
negated this contention and reasoned that without the auction of the right to buy arrack from the petitioners there
can be no sale of arrack from the petitioners to the excise contractors. The object of Section 206C of the Act was to
facilitate the collection of tax on that income, which is bound to arise or accrue, at the very inception itself or at an
anterior stage. Consequently, the court could not beneficially interpret the statute continuing the mischief which is to
be avoided. Therefore, the court found the aforesaid event covered by the section.
79 .Orissa State Warehousing Corpn v Commr of Income-tax and Rajasthan State Warehousing Corpn, Jaipur v Commor
of Income-tax (1999) 4 SCC 197 [LNIND 1999 SC 338].
80 .[1899] 2 WB 158, p 164; Best & Co Ltd v Corpn of Madras AIR 1924 Mad 420, p 430.
81 . AIR 1954 Bom 249 [LNIND 1953 BOM 94].
82 . 2004 (134) Taxman 193, (2004) 265 ITR 498, (2003) 185 CTR 417.
End of Document
Substance and not Form to be Taken into Consideration
NS Bindra
Fiscal Statutes
Substance and not Form to be Taken into Consideration
It is a settled rule that in the determination of liability to taxation under a taxing Act, the court has regard to the
substance rather than the form of the transaction sought to be taxed,83 that is to say, in the case of an instrument
that the court is not bound by its apparent tenor but will decide according to the real nature of the transaction.84 It
is not the name of the tax but its real nature which must determine into what category it falls,85 at the same time it
is not proper to take the motives of the assessee, in bringing about a particular arrangement, into consideration,
and a subject is entitled, if he can, in any legal manner, to circumvent the incidence of a particular taxing or
financing Act.86 It is open to parties to vial themselves of any camouflage that the law allows and does not forbid
especially in the case of an enactment for Revenue purposes, such as Court Fees Act. It is not open to a court in
such circumstances to neglect the actual form of the instrument and determine the question of court-fees having
regard to what may be said to be the substance of the claim.87 Though the charging section, which fixes the
liability is generally to be construed strictly, yet the machinery provisions require to be construed so as to effectuate
the object and purpose of the statute.
83 .Joint Commercial Tax Officer v Youngmens Indian Assn AIR 1970 SC 1212 [LNIND 1970 SC 43].
84 .Commr of Stampt Duties (NSW) v Perpetual Trustee Co Ltd 21 CLR 69, p 75; Christie v Commr of Inland Revenue LR
2 Ex 46; Wale v Commr of Inland Revenue 4 Exd 270; Attorney-General v Power [1906] 2 IR 272.
85 .Organon (India) Ltd v Collector of Excise (1977) MP LJ 119.
86 .Commr of Income-tax, Madras v Ibrahimsa AIR 1928 Mad 543.
87 .Pathumma Umma v A Mohiuddeen AIR 1928 Mad 929 [LNIND 1927 MAD 356]; V Aiyaswami v District Board, Tanjore
AIR 1930 Mad 43 [LNIND 1929 MAD 138], p 45, (1959) ILR 52 Mad 972.
End of Document
Tax Planning and Tax Evasion
NS Bindra
Fiscal Statutes
Odgers said:88
The word evasion, may mean either of two things. It may mean an evasion of the Act by something which, while it
evades Act, is within the sense of it, or it may mean an evasion of the Act by doing something to which the Act does
not apply. The first of these methods suggests underhand dealing, the second merely the intentional avoidance of
something disagreeable which is a wholly different thing. There is no obligation not to do what the legislature has
not really prohibited and it is not evading an Act to keep outside it.
Lord Cranworth has said in an earlier case, Edwards v Hall:89
I never understood what is meant by an evasion of an Act of Parliament; either you are within the Act or you are not
within it; if you are not within it you have a right to avoid it, to keep out of the prohibition.
In McDowell & Co v Commercial-tax Officer,90 the manufacture, sale (both wholesale and retail), storage, and
transport of liquor were regulated by the Andhra Pradesh Excise Act, 1968. The appellant paid Sales Tax payable
by it under the Andhra Pradesh General Sales Tax Act, 1957, on the basis of its turnover which excluded excise
duty. The Company was assessed to sales tax on the basis of its returns but later the Commercial Tax Officer was
of the view that the Company had failed to include the excise duty paid on the liquor sold by it to wholesalers. The
taxing authority accordingly called upon the Company to show cause why assessments made may not be re-
opened. It was argued by the appellant that the excise duty had never come into its hands, and therefore, the same
could never be considered as a part of its turnover. The Court rejected the contentions of the appellant, and held
that this arrangement of sale with the wholesalers was a method of avoiding excise duty, which while legally
permissible, ought to be examined by the Court carefully. In this case, the Court eventually decided against the
appellant. On tax planning and tax evasion, the Court observed:
The shortest definition of tax avoidance that I have come across is the art of dodging tax without breaking the law.
Much legal sophistry and judicial exposition have gone into the attempt to differentiate the concepts of tax evasion
and tax avoidance and to discover the invisible line supposed to exist which distinguishes one from the other. Tax
avoidance, it seems, is legal; tax evasion is illegal...We must recognise that there is behind taxation laws as much
moral sanction as behind any other welfare legislation and it is a pretence to say that avoidance of taxation is not
unethical and that it stands on no less moral plane than honest payment of taxation. In our view, 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 not 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 not 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 devices to avoid tax and consider whether the situation created by the devices could be related
to the existing legislation with the aid of emerging techniques of interpretation.
88 . Odgers, Construction of Deeds and Statutes, second edn, pp 306-07.

Page 2 of 2
89 . (1856) 25 LJ Ch 84.
90 . AIR 1986 SC 649 [LNIND 1985 SC 131], 1986 Tax LR 2174 [LNIND 1985 SC 131], (1985) 18 Tax Law Rev 529,
1985 Taxation 77 (3) 150, [1985] 154 ITR 148 [LNIND 1985 SC 131], (1985) 3 SCC 230 [LNIND 1985 SC 131], 1985
SCC 391 (Tax).
End of Document
Retrospective Effect91
NS Bindra
Fiscal Statutes
Retrospective Effect91
The intention to impose a tax on the subject must be shown by clear and unambiguous language. The principle that
a tax cannot be levied or collected except by authority of law, does not, however, involve the further proposition that
under the Indian Constitution taxes cannot be levied retrospectively. Once a competent legislature has passed a
fiscal law with retrospective effect, the tax levied thereby must be held to be by authority of law and it would be
perfectly constitutional and not invalid because of its being retrospective.92 A fiscal statute, more particularly, on a
provision regulating period of limitation must receive strict construction. Law of limitation is intended to give certainty
and finality to legal proceedings and to avoid exposure to risk of litigation to the litigant for an indefinite period on
future unforeseen events. Proceedings, which have attained finality under existing law due to bar of limitation
cannot be held to be open for revival unless the amended provision is clearly given retrospective operation so as to
allow upsetting of proceedings, which had already been concluded and attained finality. Even a procedural
provision cannot in the absence of clear contrary intendment expressed therein be given greater retrospectivity than
is expressly mentioned so as to enable the authorities to effect finality of tax assessments or to open up liabilities,
which have become barred by lapse of time.93
91 . For a more detailed consideration of retrospective operation of statutes see Part II chapter supra.
92 .Mewar Textile Mills Ltd v Union of India AIR 1955 Raj 114; Dhoties (Addl Excise Duty) Act 1953 held to be
retrospective.
93 .KM Sharma v Income-tax Officer, Ward 13 (7), New Delhi, (2002) 4 SCC 339 [LNIND 2002 SC 274].
End of Document
Constitutional Validity
NS Bindra
Fiscal Statutes
Taxing Legislation Subject to Fundamental Rights and Other constitutional Provisions
A taxing statute is not per se a restriction on the freedom under Article 19 (1)(g). The policy of a tax, in its
effectuation, might, of course, bring in some hardship in some individual cases. But that is inevitable, so long as law
represents a process of abstraction from the generality of cases and reflects the highest common factor. Then
again, the mere excessiveness of a tax or even the circumstance that its imposition might tend towards diminution
of earnings or profits of the persons of incidence does not per se, and without more, constitute violation of rights.94
The courts cannot, as pointed out by the United States Supreme Court in Secretary of Agriculture v Central Roig
Refining Co,95 be converted into tribunals for relief from such crudities and inequities and the courts must therefore
adjust the constitutionality of such legislation by the generality of its provisions
A taxing statute if divisible in nature, and partly falls within and partly outside the Constitution, should not be
declared wholly ultra vires. The principle of severability includes separability in enforcement and this principle
should be applied in cases of all taxing statutes.96 In order that a tax may be valid it is, firstly, within the
competency of the legislature imposing it; secondly, that it is for a public purpose; and thirdly, that it does not violate
the fundamental rights guaranteed by Part III of the Constitution.97 Generally stated, when authority to tax at such
rate as the court may specify without the legislature fixing any maximum is conferred, it would be invalid on the
ground of excessive delegation if no other guideline is indicated, for when tax is levied for the benefit of the
government, no implied limitation of quantum of tax can be inferred because the governments needs are unlimited.
In contrast, when power to levy a tax is conferred on a municipal corporation without prescribing the maximum, the
taxing power can be upheld on the ground that the power to tax conferred on a corporation in necessarily limited by
the expenses required to discharge its functions.98
In Cibatul Ltd v Union of India,99 the Court held that while the charging section may not be ultra vires, the
procedural section could be held to be ultra vires it if exceeded the constitutional competence of the legislature
which enacted it. It was held that while Section 3, the charging section of the Central Excise and Salt Act 1944, was
valid, Section 4, the machinery or procedural section, was invalid as it impinged upon the legislative authority of the
state.
94 .Federation of Hotel and Restaurant v Union of India AIR 1990 SC 1637 [LNIND 1989 SC 299], 1990 Tax LR 623
[LNIND 1989 SC 299], [1989] 178 ITR 97 [LNIND 1989 SC 299], (1989) 77 CTR 141, (1989) 74 STC 102 [LNIND 1989
SC 299], (1989) 46 Taxman 47 [LNIND 1989 SC 299], (1989) 3 SCC 634 [LNIND 1989 SC 299].
95 .(1950) 94 L Ed 381.
96 .State of Bombay v United Motors (India) Ltd AIR 1953 SC 252 [LNIND 1953 SC 42].
97 .Vivian Joseph v Municipal Corpn, Bombay [1972] 2 SCR 268, per Shelat J; Hari Krishna Bhargava v Union of India
AIR 1966 SC 619 [LNIND 1965 SC 240].
98 .Rewa Transport Service v State of Madhya Pradesh (1980) MP LJ 341.

Page 2 of 2
99 .(1980) 21 Guj LR 284.
End of Document
Conclusion
NS Bindra
Fiscal Statutes
Conclusion
The chapter shows that the legislative draftsman need to demonstrate greater precision in language whilst drafting
fiscal statutes. Use of imprecise or ambiguous language, could in the wake of the strict construction rule, cause the
entire legislative enterprise to collapse. In tandem with the strict reading of the charging section goes the liberal
reading of the exemption provisions. This is on the reasoning that an exemption provision is something akin to a
beneficent provision and hence the rule applicable for such provisions generally should also apply when such
provisions are part of taxing statutes. In more recent times however, Courts have adopted the same strict scrutiny
of exemption provisions as is extended to charging sections. The rationale being that a liberal reading of the
exemption provisions will reduce the revenues that can be raised and this reduction impacts upon the welfare of the
population at large. Consequently, these judges have perceived pro-revenue interpretations as interpretations
which were advancing social welfare. Thus the rule of strict construction has been used to interpret taxing statutes
both in favour of the assessee and in favour of revenue. Tables 3.6 tabulates cases where the rule of strict
construction favoured the assessee and 3.7 includes cases where strict construction favoured the revenue.
Table 3.6 Strict Construction of Fiscal Statutes in Favour of the Assessee
the Case Court
1. Tobacco Bihar Sales Tax Act, The question before The Court held that an
Manufacturers (India) 1947 - Section 5 the Court was whether agreement to sell had
Ltd v State of Bihar (2)(a)(v) the expression sale not been explictily
AIR1950 Pat 450 occurring and defined brought within the said
in the Act, could extend definition, by virtue of
to covering which, Sales Tax could
agreements to sell. not be imposed on the
assessee. The Court
observed that if an
assessee got an
advantage which the
legislature may not
have intended, but
which he was entitled
to on the construction
of the statute, the court
ought not to deprive
him of that advantage.
2. CA Abraham v Income- Income-tax Act, 1922 - The appellant who was The Court agreed with
tax Officer, Kottayam Sections 28 (1)(c) and carrying on business in the appellant, and held
[1961] 2 SCR 765 Section 44 food grains in that while Section 44
[LNIND 1960 SC 297] partnership with provided for a
another person mechanism for the
submitted the returns assessment of income
of the income of the tax on discontinued
Page 2 of 11
Conclusion
firm for the accounting firms, Section 28 did

years even after his not provide any penalty
partners death. It was for non-disclosure in
found that certain such circumstances.
income of the firm was
concealed and the The Court observed
Income-tax Officer not that in interpreting a
only assessed the firm fiscal statute, the court
to tax for the cannot proceed to
suppressed income but make good
also imposed penalties deficiencies if there be
for concealing the said any: the court must
income. It was argued interpret the statute as
by the appellant that it stands and in case of
proceedings for doubt in a manner
imposition of penalty favourable to the tax-
and proceedings for payer.
assessment of income-
tax were distinct
matters, and Section
44 may be resorted to
for assessing tax due
and payable by a firm
business which had
been discontinued, but
an order imposing
penalty under Section
28 of the Act could not
be passed on the basis
of the mechanism
under Section 44.
3. State of Punjab v M/S East Punjab General The question before The Court construed
Jullunder Vegetables Sales Tax Act - Section the Court was whether the Act and the Rules
AIR 1966 SC 1295 16 and an assessment of a in favour of the
[LNIND 1965 SC 288] dissolved firm could be assessee, and held
East Punjab General made with respect to that since Section 16
Sales Tax Rules, 1949 its predissolution or Rule 40, which
- Rule 40 turnover. The appellant empowered the
argued that there was revenue to make an
no provision in the Act order of assessment,
expressly empowering did not explicitly
the assessing authority provide for the
to assess a dissolved assessment of a
firm in respect of its dissolved firm, the
turnover before its revenue could not have
dissolution. carried out such an
assessment.
4. Banamali Tea State v Assam Agricultural Under Section 19 (1), The Court held that the
State of Assam Income-tax Act, 1939 - returns had to be filed provision had to be
(1985) 2 Gau LR 163 Section 19 and before the 31st of construed in favour of
December of the the assessee, and
Assam Agricultural relevant financial year. hence, if the order was
Income-tax Rules, Where the time-limit quashed as regards a
1939 - Rule 11 (2)(b) was extended by the period of time, it cannot
Agricultural Income-tax be said that there was
Officer, an assessee a failure to furnish
had to pay simple returns for that period
interest at the rate of 6 of time.
per cent per annum
from the 1st of January
Page 3 of 11
Conclusion
of the relevant financial

year to the date of
furnishing the return as
extended by the officer.
If no return was
submitted within 28th
February of the
relevant financial year,
an assessee was liable
to pay simple interest
up to a maximum of 24
per cent.
The question before

the Court was whether
in a situation where an
assessment order had
been partially quashed
by the Court, the
period of extension
would relate back to
the date till which the
order was valid, or
would the partial
quashing have no
effect on the provisions
of Section 19.
5. Distributors (Baroda) Income Tax Act, 1961 - The Court was called The Court held in
Pvt. Ltd v Union of Section 80M (1) and upon to interpret the favour of the assessee,
India Section 80AA expression such and held that the object
AIR 1985 SC 1585 income by way of behind the grant of
[LNIND 1985 SC 207] dividends occurring in relief under Section
Section 80M, in order 80M was to avoid
to decide whether double taxation in the
inter-corporate would hands of the receiving
qualify for an company of the
exemption under the amount, which had
said provision. already borne tax in
the hands of the paying
company. The Court
observed that the
expression such
income by way of
dividends must have
reference to the
income by way of
dividends from a
domestic company
which was included in
the gross total income.
Hence, inter-corporate
dividends were brought
under Section 80M,
and the exemption was
granted to the
assessee.
6. Deputy CIT v Income Tax Act, 1961 - The question before The Court ruled in
Transpower (P) Ltd. Section 32AB and the Court was whether favour of the assessee,
Page 4 of 11
Conclusion
(2001) 72 TTJ Gau 867 Section 80HH and interest on bank and held that where
Section 80I deposits could be net interest income (if
qualified as business any) was earned in the
income, thus making it course of carrying on
eligible for deduction an industrial
under the Act. undertaking and the
same is inextricably
linked with operations
of the industrial
undertaking, the
amount qualified as
income derived from
an industrial
undertaking and was
hence, eligible for
deduction under
Sections 80HH, 80-I
and 32AB.
The Court further

observed that it was an
accepted principle of
law that fiscal statutes
have to be constructed
strictly in favour of the
assessee, when the
meaning was doubtful
or ambiguous. Fiscal
statutes ought be
interpreted strictly in
favour of the subject,
and the court would not
be justified in straining
the language of a
particular provisions in
order to hold a subject
liable to tax.
7. M/S. Ponds India Ltd. v U.P. Trade Tax Act, The question before The Court observed
Commissioner of Trade 1948 -Entry 26 and the Court was whether that an exemption
Tax petroleum jelly is a notification may require
(2008) 8 SCC 369 Drugs and Cosmetics drug or a cosmetic strict construction, but
[LNIND 2008 SC 1238] Act, 1940 - Section 2 within the meaning of where a statute merely
the provisions of the provides for different
1948 Act, since an rates of tax, application
exemption had been of the principles of
granted in favour of strict construction may
drugs. not be appropriate. On
the basis of these
held that the benefit of
the lower tax rate
ought to be given to
the assessee, and that
for the purposes of the
1948 Act, petroleum
jelly would be
considered a drug.
8. Commnr. of Income Income Tax Act, 1961- The Court had to The Court held that
Tax, Coimbatore v Section 36 (1)(v) decide whether while it was true that a
Page 5 of 11
Conclusion
M/S. Textool Co. Ltd. payment gratuity, paid fiscal statute has to be
[2009] 315 ITR 91 directly to the LIC by construed strictly and
(Mad) the employer, would nothing should be
qualify for a deduction added to or subtracted
under the said from it, a strict
provision. construction of a
provision would not
rule out the application
of the principles of
reasonable
construction to give
effect to the purpose
and intention of any
particular provision of
the Act. The Court held
that from a bare
reading of Section 36
(1)(v), it was manifest
that the real intention
behind the provision
was that the employer
should not have any
control over the funds
of the irrevocable trust
created exclusively for
the benefit of the
employees. On facts, it
was evident that the
assessee had
absolutely no control
over the fund created
by the LIC for the
benefit of the
employees of the
assessee and further
all the contribution
made by the assessee
in the said fund
ultimately came back
to the Textool
Employees Gratuity
Fund, approved by the
CIT. Thus, the
conditions stipulated in
Section 36 (1)(v) were
satisfied.
9. Panacea Biotech Ltd v Delhi Sales Tax Rules, In response to a The Court observed
Commissioner of Trade 1975 - Rule 36 (6) and demand notice for that the expression
2012 (12) TMI 826 sales tax for the sale of business occurring in
Central Sales Tax Act, a motor car, the the Act ought to be
1956 - Section 9 (2) appellant contended construed in favour of
that the car was used the assessee, and
in the connection with accordingly held that
the running of the use of the car could
business, and when not be considered as
the car has ceased to an act that was
serve the desired ancillary to the
purpose, it was sold business. Hence, the
after claiming demand notice was
depreciation. The quashed. The Court
Page 6 of 11
Conclusion
revenue argued that further observed that

the use of the car was the appellant had paid
ancillary to the main sales tax on the
business of purchase of the car,
manufacturing and imposing sales tax
pharmaceutical again would amount to
products. two-point taxation.
10. Vallabh Vidyanagar Bombay Stamp Act, The Court was The Court began by
Commercial Co- 1958 considering the site of observing that a fiscal
Operative Bank Ltd v stamp duty on a Statute had to be
State of Gujarat (2013) mortgage by deposit of interpreted strictly to
(Available at title-deeds with a bank. give benefit of stamp
http://indiankanoon.org This became essential duty to the assessee, if
/doc/130485462/) because there was a at all there was any
difference in the rate of duty. On the basis of
duty between Anand this, the Court held that
and Vallabh charging section ought
Vidyanagar. The to be construed in
petitioner argued that favour of the assessee,
since the mortgage and the site for
had been registered at determination of stamp
Anand, that would be duty ought to be
the site of Anand.
determination of stamp
duty. The revenue
argued that since the
property was present
at Vallabh Vidyanagar,
that would be the site
of determination of
stamp duty.
Table 3. 7 Strict Construction of Fiscal Statutes in favour of the Revenue
the Case Court
1. RowjiSojpal v Commr Income-Tax Act, 1922 - There was a partition The Court agreed with
of Income-tax, Bombay Section 12B effected between the the revenue, and
AIR1957 Bom 294 assessee and his sons, construed the
in which the property expression possession
that had been to mean actual and not
coparcenary property juridical possession,
came to the share of thus construing the
the assessee. The provision in favour of
assessee sold the the revenue and not
property, and sought to the assessee.
avoid the payment of
tax on capital gains by
arguing that he was
covered by the proviso
to Section 12B, which
inter alia laid down that
the assessee or his
parent had been in
possession of the
property for not less
than seven years, for
the proviso to apply.
Page 7 of 11
Conclusion
The revenue argued

that since prior to
partition, the property
had existed as
coparcenary property,
the assessee could not
have been in actual
possession of the
property for a period
over 7 years. Hence,
the tax could not be
avoided by recourse to
the proviso.
2. Prince Azam Jah v Expenditure-tax Act, The Court had to The Court construed
Expenditure Tax 1967 - Section 2 (g) consider whether the the provision to mean
Officer Princess of Hyderabad, that the expression
[1970] 78 ITR 364 (AP) who lived in London dependant could not
and visited India for a mean a person whose
brief period every year expenditures were not
at her own expense, tended by the
was a dependant of the assessee. Hence, the
Prince under the Act. Court construed the
expression in favour of
the revenue.
3. Director of Inspection, Income-Tax Act, 1961 - The question before The Court held that this
Income-tax v Pooran Section 132 (5) the Court was whether provision was not
Mal AIR 1975 SC 67 an order of attachment required to be
[LNIND 1974 SC 283] of silver ingots, issued construed strictly in
under Section 132 (3), favour of the assessee,
which was after the since it was not a
statutory limitation charging provision.
period of 90 days Further, the Court held
provided in Section that the fact that the
132 (5), was assessee had sought a
sustainable or not. fresh order was
enough to imply that it
had waived the
limitation period by its
own consent.
4. Shree Sajjan Mills v Income Tax Act, 1961 - The question before The Court construed
Income-Tax Commr Section 40A (7) the Court was whether the expression
AIR 1986 SC 484 a deduction would be provision made
[LNIND 1985 SC 325] permitted to the occurring in Section
assessee on the basis 40A (7) literally, and
of actual gratuity paid held that it implied that
by it to its employees, the conditions under
or on the basis of the the said provision had
sum set aside by it in to be strictly followed,
the gratuity fund for the and the structure of the
purposes of gratuity fund had to
convenience. comply with Section
40A (7) for the
assessee to claim
deductions on the
gratuity fund. Hence,
the Court construed
the provision strictly
against the assessee.
Page 8 of 11
Conclusion
5. Novopan India Ltd v Central Excise Rules, An exemption from The Court held that a
Collector of Central 1944 - Rule 8 (1) excise duty was person invoking an
Excise and Customs granted for plywood exception or an
1994 Supp (3) SCC and boards specified... exemption provision to
606 The appellant initially relieve him of the tax
engaged in the liability must establish
manufacture of clearly that he was
unveenered particle covered by the said
boards, which the provision. In case of
revenue accepted to doubt or ambiguity,
be exempt under the benefit of it must go to
notification. However, the State. On the basis
when the appellant of these observations,
sought to claim that the Court held that the
melamine faced appellant was not
particle boards were covered under the
also exempt, the exemption, since
revenue disagreed. It melamine facing was a
was argued by the process that was not
appellant that the the same as
aforementioned unveneering.
category of particle
boards would come The Court further
within the exemption. observed that the
choice between a strict
and a liberal
construction arises
only in case of doubt in
regard to the intention
of the legislature
manifest on the
statutory language.
Indeed, the need to
resort to any
interpretative process
arises only where the
meaning is not
manifest on the plain
words of the statute. It
the words are plain and
clear and directly
convey the meaning,
there is no need for
any interpretation.
6. M/S Tata Iron & Steel Bihar Finance Act, An exemption was The Court held that
Co. Ltd v State of 1981 - Section 7 (3)(b) granted to dealers in since both Hot Rolled
Jharkhand terms of Section 7 Mill and the Cold
(2005) 4 SCC 272 (3)(b) in respect of tax Rolled Mill were
[LNIND 2005 SC 308] on purchase or sale of existing units, and one
certain goods of them had received
manufactured by new/ the benefits under a
expanded/ diversified/ different policy, the
modernized units. The Appellant was not
Appellant claimed entitled to any further
benefits of the relief under the new
aforementioned notification.
notification, whereupon
the benefit of The Court further
exemption in respect of observed that an
its Cold Rolled Product eligibility clause in
Page 9 of 11
Conclusion
(CRP) was granted relation to an

treating the diversified exemption notification
capacity as a new unit. must be given a strict
Such grant of meaning.
exemption, however,
was withdrawn by the
Commissioner of
Commercial tax in
exercise of its suo
motu power of revision
holding that as both
Cold Rolled Product
and Hot Rolled Product
find mention in the
same entry issued in
terms of Section 14 of
the Central Sales Tax
Act, 1957, they were
not entitled to the
benefits claimed.
7. State of Jharkhand v Bihar Finance Act, An exemption from The Court held that the
Ambay Cements 1981 - Section 7 (3) Sales Tax on purchase exemption had to be
(2005) 1 SCC 368 of raw material and construed strictly, and
[LNIND 2004 SC 1146] Sales Tax on sale of if the respondent had
finished products was not complied with the
granted. Industrial units mandatory conditions
that had obtained precedent to the
registration from exemption, benefits
Industries could not be granted to
Department/Industrial it. Hence, the Court
Area Development agreed with the
authority/Director of revenue and denied
Industries or had the benefit of the
obtained a Registration exemption to the
Certificate from a respondent.
competent Authority of
the Government of
India, and were
desirous of the
aforementioned
benefit, had to obtain
prior permission of the
State Government in
the Industries
Department. The
respondent qualified
for the exemption, but
had not sought the
prior permission of the
State Government.
Hence, the revenue
sought to deny the
benefit of the
exemption to him.
8. Bhai Jaspal Singh v West Bengal Sales Tax The question before The Court disagreed
Assistant Commr Act, 1994 and the Court was whether with the assessee, and
(2010) the assessee would fall held that it was a
West Bengal Sales Tax under an exemption necessary pre-
(Available at Rules, 1995 - Rule 41 notification that applied condition that the
to units with plants and assessee should fall
Page 10 of 11
Conclusion
http://judis.nic.in/supre machinery with worth within the clear

mecourt/ less than 5 lakh wording of the
Rupees. The assessee notification. The
imgs1.aspx?filename= claimed that the value assessee fell outside
37015) to be taken ought to be the parameters of the
value of machinery exemption, since his
after depreciation, and initial investment was
the initial cost ought over 5 lakhs, and
not to be considered in hence, there was no
deciding the question of the
applicability of the Notification applying to
exemption. him.
9. Institute of The Bombay Electricity The petitioner argued The Court held that the
Management, Duty Act, 1958 - that the said Act had concession ought to be
Ahmedabad v State of Schedule I, Part-I, prescribed differential interpreted strictly, and
Gujarat (2011) Item-I rates of Electricity Duty since the petitioner
for educational was not affiliated to
(Available at institutions, and the any University in the
http://indiankanoon.org petitioner had not State of Gujarat from
received any benefit 1993-1999, it could
under it, while being seek the benefit of the
/doc/373141/)
covered by the Act. concession.
The relevant portion of
the Item read as or a The Court observed
college affiliated to, or that a revision for
an institution concessional rate of
recognised or duty should normally
approved, by such be construed strictly,
University. and an exemption
could not be claimed
by a party as a matter
of right. Courts have to
look at the language
used by the Legislation
and decide as to which
categories of cases
concessional rate of
duty is available. In this
process, Courts were
not entitled to fill in any
lacuna in any Act since
that would be a matter
for the Legislature to
take note of, even if the
Court finds that a
particular Institute is
eligible for the
particular concession.
10. Gammon India Ltd. v Customs Act, 1962 - Gammon India Ltd. The Court construed
Commr of Customs Section 25 (1) had entered into a the exemption strictly,
[2011] 7 SCR 195 Joint Venture and held that since
[LNIND 2011 SC 615] Agreement with Atlanta correspondence with
Infrastructure Ltd. for the supplier of goods
the construction of a and placement of the
stretch on National order had been done
Highway-5. After by Gammon, and
receiving the tender, payment for the
goods for the execution machines had been
of road works were from the funds of
Page 11 of 11
Conclusion
imported, and the Joint Gammon, the Joint

Venture sought to Venture could not seek
claim an exemption on an exemption for itself.
import duty. It was
argued by the revenue
that the import was
done solely by
Gammon India Ltd.,
and hence the Joint
Venture could not seek
an exemption for itself.
End of Document
NS Bindra
Edition > Part IV Precedents and Interpretation > CHAPTER 19 Precedents and Interpretation
Part IV Precedents and Interpretation
Chapter 19
End of Document
NS Bindra
Part IV Precedents and Interpretation
End of Document
Introduction
NS Bindra
Introduction
Insofar as the Indian legal system has common law lineages the theory of precedent and the doctrine of stare
decisis influence judicial functioning. The theory of precedent impacts on statutory interpretation in several ways.
Thus when a new legislation continues with or departs from language, which has already been interpreted by the
Court such continuance or departure is perceived as evidence of legislative endorsement or rejection. An earlier
interpretation of a statutory provision influences subsequent interpretation, though the extent of the influence varies
depending upon whether the later Court views the earlier decision as persuasive or binding.
Article 141 of the Constitution of India provides that the law declared by the Supreme Court of India shall be binding
on all the Courts within the territory of India. It is significant to note that the Constitution has bound the Courts
subordinate to the Supreme Court to the law declared by the apex Court; the Court itself is at liberty to reconsider
an earlier ruling and to overrule it if required. In the traditional and formalist understanding ofstare decisis it is only
the ratio decidendi which is binding; the obiter dicta have only persuasive value. Unless a subsequent decision
happens per incuriam, a later Court is required to engage with an earlier decision, and determine its relevance to
the question of interpretation faced by it. In determining the binding value of precedent Courts take into account the
similarity or dissimilarity of facts; the text of the disputed statutory provision and the bench structure.
Upendra Baxi whilst examining the operation of the doctrine of stare decisis in India has opined that the Indian
Supreme Court adopts an eclectic approach towards the doctrine.1 It neither strictly follows nor totally disregards it.
Whilst Baxi sees the eclecticism of the Court as a strength, which allows the Court to make social justice
interventions without being burdened by the weight of precedents; Seervai reproaches the Court for precedential
inconsistency which causes normative incoherence and systemic instability.2
This part of the book elaborates on: juristic opinion and judicial pronouncements on the theory of precedent; the
influence of precedents on statutory interpretation; and the interpretation and operation of Article 141 of the Indian
Constitution. Lastly to assess the relative value of varied juristic opinions the Supreme Courts reliance and
departure on the doctrine of stare decisis in some select areas shall be examined.
1 . U Baxi The travails of stare decisis in India in T. Blackshield Law and Social Change Essays in Honour of Julius
Stone, Butterworths (1983).
2 . H.M. Seervai, Constitutional Law of India, vol.1, (Delhi: Universal Law Publishing Co. Ltd, 1993) p.264-266.
End of Document
Juristic Opinion on Precedents
NS Bindra
A precedent is a judicial decision which contains in itself a principle. The underlying principle which thus forms its
authoritative element is termed the ratio decidendi. Whilst the concrete decision is binding between the parties to it;
the abstract ratio decidendi has the force of law as regards the world at large. The only use of authorities or decided
cases, says Sir George Jessel is the establishment of some principle, which the judge can follow in deciding the
case before him. The only thing, says the same distinguished judge in another case, in a judges decision binding as
an authority upon a subsequent judge is the principle upon which the case was decided. Hence, decisions of
learned judges are of the great value in assisting subsequent benches, before whom similar points subsequently
arise for decision, to construe the meaning of statutory provisions, and are frequently of binding authority. Every
court is under an obligation to follow the precedent laid down by a court superior to itself. A magistrate is bound to
follow the authority of the high court, and it is his duty to keep himself informed of its decisions. Failure to do so is a
dereliction of duty on his part.3 The law laid down by the Supreme Court shall be binding on all courts within the
territory of India.4 The prerogative of judges is not to make law by formulating and declaring itthis pertains to the
legislaturebut to make law by applying it. A Judicial declaration, which is unaccompanied by judicial application,
lacks binding authority.5
A precedent, therefore, writes Salmond,6 is a judicial decision which contains in itself a principle. The underlying
principle which thus forms its authoritative element is often termed the ratio decidendi. Any judgment of any court is
authoritative only as to that part of it, called the ratio decidendi, which is considered to have been necessary to the
decision of the actual issue between the litigants. It is for the court, of whatever degree, which is called upon to
consider the precedent, to determine what was the true ratio decidendi.7 Precedents as observed by Lord
Macmillan, in Birch Bros Ltd v Brown,8 should be stepping-stones and not halting places. A good judge writes Lord
Wright, is one who is the master, not the slave of cases. Unfortunately, the form is very often confused with the
substance.
Julius Stone says:9
Precedents become rather pegson which to hang judgment than an explanation of the process of reaching it. While
this is not itself an evil, it is likely to become one at the point when the peg chosen for hanging the present decision
was manufactured in a different factual context and with a different purpose from the instant case.
When a general rule of construction has once been laid down by authority, a decision arising from its application to
a particular set of facts cannot operate as a precedent, for the very remote chance of any two sets of facts being
absolutely similar may be excluded. No judge can be fettered by an attempt by another judge to lay down any rule
of construction based on his opinion on the facts of the case before him.10 A judgment must be read with objectivity
and not out of context or even as a provision of an act or rule with preconceived notions exposing virtually hidden
desires or agendas.11 Precedents may be compared to wine which improves with age up to a certain point, and
then begins to go off.12 It is a trite proposition that each case is authority for itself and no more, unless a case lays
down a broad proposition of law, it cannot have even a persuasive value.13
The use of precedent is an indispensable foundation upon which to decide what is the law and its application in
individuals cases. It provides at least some degree of certainty upon which individuals can rely in the conduct of
their affairs, as well as provides a basis for orderly development of legal rules.14 All persons within a state are
bound to follow the decisions of the high court for that state, until they are subsequently overruled either by a larger
bench of that court or by a decision of the Supreme Court or by an enactment passed by the legislature.15 It is,
however, a statutory rule that a judge is not to be assumed to have intended to overrule or disapprove of an
authority which has not been cited to him and which he does not even mention.16
Page 2 of 4
Finding out the Ratio
Since the ratio alone has binding value, the manner in which a ratio can be culled out from a judgment assumes
significance. Prof Goodhart enunciated the following rules for finding the principle of a case:
(i) the principle of a case is not found in the reasons given in the opinion;
(ii) the principle is not found in the rule of law set forth in the opinion;
(iii) the principle is not necessarily found by a consideration of all the ascertainable facts of the case, and the
judges decisions;
(iv) the principle of the case is found by taking into account:
(a) the facts treated by the judge as material; and
(b) his decision as based on them;
(v) In finding the principle, it is also necessary to establish what facts were held to be immaterial by the judge;
for the principle may depend as much on exclusion as it does on inclusion.
Prof. Goodhart also expounded the following rules to explain which facts are material and what facts are immaterial
for a judge:
(i) all facts of person, time, place, kind and amount are immaterial unless stated to be material;
(ii) if there is no opinion, or the opinion gives no facts, then all other facts in the record must be treated as
material;
(iii) if there is an opinion, then the facts as stated in the opinion are conclusive and cannot be contradicted from
the record;
(iv) if the opinion omits a fact which appears in the record, this may be due either to:
(a) oversight; or
(b) an implied finding that the fact is immaterial, the second will be assumed to be the case in the absence
of other evidence;
(v) all facts which the judge specifically states as immaterial must be considered immaterial;
(vi) all facts which the judge impliedly treats as immaterial must be considered immaterial;
(vii) all facts which the judge specifically states as material must be considered material;
(viii) if the opinion does not distinguish between material and immaterial facts, then all the facts set forth must
be considered material;
(ix) if in a case, there are several opinions which agree as to the result but differ as to material facts, then the
principle of the case is limited so as to fit the sum of all the facts held material by the various judges;
(x) a conclusion based on a hypothetical fact is a dictum. By hypothetical fact, is meant any fact, the existence
of which has not been determined or accepted by the judge.17
Obiter dicta
Dictum is an observation as to the law made by a judge in the course of a case, but not necessary to its decision
and is often called obiter dictum, a remark by the way.18 The court, as a rule, does not decide questions which are
not necessary for determining or resolving the actual controversy arising in the case. Such opinions partake of the
nature of obiter.19 It is, of course, a perfectly familiar doctrine that obiter dicta, though they may have great weight
as such, are not conclusive authority; obiter dicta in this context mean what the words literally signify, namely,
statements by the way. If a judge thinks it desirable to give his opinion on some point which is not necessary for the
decision of the case, that, of course is an action in equity. The rights of the parties are those conferred by the
concerned statutes, nothing more or nothing less.
In the course of the argument and decision of a case many incidental considerations arise which are (or should be)
all parts of the logical process, but which necessarily have different degrees of relevance to the central issue.
Page 3 of 4
Judicial opinions upon such matters, whether they by merely casual, or wholly gratuitous, or (as is far more usual)
of what may be called collateral relevance, are known as obiter dicta, or simply dicta.20
Although it is the duty of courts of Justice to decide questions on principle if they can, they must take care in the
formulation of principles to limit themselves to the requirements of the case in hand. That is to say, they must not
lay down principles which are not required for the due decision of the particular case, or which are wider than is
necessary for this purpose. The only judicial principles which are authoritative are those which are thus relevant in
their subject-matter and limited in their scope. All others, at the best, are of merely persuasive efficacy. They are not
true, has not the binding weight of the decision of the case and the reasons for the decision.21
Jessel J. observed in Re Wright, ex p Willey:22
I never allow my construction of a plain enactment to be biased in the slightest degree by any number of judicial
decisions or dicta as to its meaning, when those decisions or dicta are not actually binding upon me. I read the Act
for myself. If I think it clear I express my opinion about its meaning as I consider I am bound to do. of course, if
other judges have expressed different views as to the construction, and their decisions are binding on this court,
this court has simply to bow and submit, whatever its own opinion may be. But when there is no such binding
decision, in my view a judge ought not to allow himself to be biased in construction of a plain Act of Parliament (for
it appears to me to be plain) by any number of dicta or decisions which are not binding on him. The judge ought,
with all due respect, to examine into them, but he must not allow any number of dicta or even decisions which are
not binding on him, to affect his judgment except in one peculiar case. That case is peculiar, and, therefore, I will
mention it. Where a series of decisions of inferior courts have put a construction on an Act of Parliament, and have
thus made a law which men follow in their daily dealings, it has been held, even by the House of Lords, that it is
better to adhere to the course of the decisions than to reverse them, because of the mischiefs which would result
from such a proceeding. of course that requires two things, antiquity of decision and the practice of mankind in
conducting their affairs.
Precedents Sub-silento
Where a particular question, though involved in the case, was not argued or considered, the decision (called a
precedent sub-silento) is merely of persuasive authority. A judgment, which is rendered without considering the
statutory provisions, passes sub-silentio. It is equally well-settled that a decision of the question not argued cannot
be recognised as a precedent.23 In Halsburys Laws of England,24 it is said that when a previous case has not laid
down a new principle, but has merely decided that a particular set of facts illustrates an existing rule, there are few
more fertile sources of fallacy than to erect a previous decision into a governing precedent merely because it
contains what is simply resemblance of circumstances.25
3 . Dow Lath v Dey(1953) 2 Mad LJ 28.

4 . Article 141, Constitution of India.
5 . Salmond, Jurisprudence, eleventh edn, pp 223-24; Sheikh Dawood v Collector of Central Excise AIR 1961 Mad 1
[LNIND 1960 MAD 234], p 5.
6 . Jurisprudence, tenth edn, p 191.
8 . [1931] AC 605, 631; Lala Bihari Lal v Beni Madhava AIR 1949 Pat 293, p 296: in spite of the rule of stare decisis,
statutes to be construed progressively.
9 . Julius Stone, Province and Function of Law, p 193.
10 . Govind Laxman v Hirachand Mansharam AIR 1919 Bom 40, p 41: authorities are useful only so far as they lay down
the law, but they are usually not safe guides when questions of facts are involved; Re Jaunpur Sugar Factory Ltd AIR
1925 All 658, p 660, per Mukerjee J; Khilawan v Emperor AIR 1928 Oudh 430, p 435.
11 . Zahira Habibullah Sheikh v State of Gujarat (2004) 5 SCC 353 [LNIND 2004 SC 1421].
13 . Sheo Kumar v Thakurji Maharaj AIR 1959 All 463 [LNIND 1959 ALL 12].
Page 4 of 4
14 . Gopabandhu Biswal v Krishna Chandra Mohanty & Ors (1998) 4 SCC 447 [LNIND 1998 SC 462].
15 . Harihar v Laxmi Jena AIR 1959 Ori 116 [LNIND 1957 ORI 18]-17.
16 . Ridge v Baldwin [1940] AC 40 , p 79, per Lord Reid.
17 . Professor Arthur L Goodhart, The Ratio Decidendi of a Case, Essays in Jurisprudence and the Common Law,
Cambridge University Press, 1931, pp 12-6.
18 . Wharton, Law Lexicon, fourteenthedn, p 328: obiter dictum is described as a dictum of a judge on a point not directly
relevant to the case before him: West and Neave, Law Dictionary, third edn, p 228: it is an expression of opinion
(formed) by a judge on a question immaterial to the ratio decidendi and unnecessary for the decision of the particular
case; Iyers Law Lexicon, p 892.
19 . Kunjukutty v State of Kerala (1972) 2 SCC 364 [LNIND 1972 SC 259], p 382, per Dua J.
21 . Flowr v Ebbio Wale Steel Iron and Coal Co [1934] 2 KB 132, p 154; Sheikh Dawood v Collector of Central Excise AIR
1961 Mad 1 [LNIND 1960 MAD 234]; Kundan Singh v Suraj Prakash AIR 1968 All 94; Sheikh Abdul Rehman v Jagat
Ram Aryan AIR 1969 J&K 16: obiter dicta of the Supreme Court are binding on the High Court under the Constitution of
India, art 141;KG Hiranandani v Bharat AIR 1969 Bom 373 [LNIND 1968 BOM 100]: must be a accepted unless they
are mere passing observations; full Bench decision always binding until overruled; Pannain Chand v Subhakaran AIR
1969 Cal 547 [LNIND 1968 CAL 105]: courts lay down only law with reference to the facts of each case; any
observation made in the course of the judgment must be read along with the facts; Kundan Singh v Suraj Prakash AIR
1968 All 94.
22 . (1883) 23 Ch D 118, pp 127-28, Sir George Jessel has pointed out in Quilter v Heatly and in ex p Willey: that what I
think everyone must agree is the inexpediency of deciding any case upon the authority of the dicta of modern judges.
There are old dicta of great judges, which have been followed by many decisions and have become maxims of the law,
but modern dicta are but attempts to embody, in a short form, the results of decisions on statutes which any lawyer can
examine for himself; Dashwood v Magniae [1891] 2 Ch 306 , p 376, per Kay LJ.
23 . Durga Prasad Banerjee v Sushmita Banerjee (1991) 2 Pat LJR 215 (Pat); refering to AR Antulay v RS Nayak (1988) 2
SCC 602 [LNIND 1988 SC 264]; Municipal Corpn of Delhi v Gurnam Kaur (1989) 1 SCC 101 [LNIND 1988 SC 441];
Union of India v Raghubir Singh (1989) 2 SCC 754 [LNIND 1989 SC 328]; Good Year India Ltd v State of Haryana
(1990) 2 SCC 72; Zainul Ansari (Mhd) v Md Khalil 1990 BLT 371, (1990) 2 PLJR 378.
24 . Halsburys Laws of England, vol 19, p 52.
25 . Narotam Chand v Durga Devi AIR 1949 EP 109, pp 116-17; quoting Salmond, Jurisprudence, 1947, 180, 185.
End of Document
Reliance on Precedents in Pre-Independence India
NS Bindra
During the British regime in India, the judicial committee of the Privy Council exercised the highest appellate judicial
authority in India. Their lordships of the Privy Council thought it desirable to point out in Mata Prasad v Nageshwar
Sahai:26
that it is not open to the courts in India to question any principle enunciated by this board, although they have a right
of examining the facts of any case before them to see whether and how far the principle on which stress is laid
applies to the facts of the particular case.
People in arranging their affairs are entitled to rely on a decision of the highest court, which appears to have
prevailed for considerable length of time, and it would require some exceptional reason to justify its reversal when
such reversal is likely to create serious embarrassment for those who had acted on the faith of what seemed to be
the settled law. Where the meaning to the statute is ambiguous and capable of more interpretations than one, and
one view accepted by the highest court has stood for a long period during which many transactions, such as
dealings in property and making of contracts, have taken place on the faith of that interpretation, the court would
ordinarily be reluctant to put upon it a different interpretation which would materially affect those transactions. It is
relevant to consider the same when the Act has been amended in some other respects.27 Under the stare decisis
rule, a principle of law which has become settled by a series of decisions generally is binding on the courts and
should be followed in similar cases. This rule is based on expediency and public policy, and although generally it
should be strictly adhered to by the courts, it is not universally applicable.28 Previous decision should not be
followed to the extent that grievous wrong may result, and accordingly the courts ordinarily will not adhere to a rule
or principle established by previous decisions which they are convinced is erroneous.29 This principle of abiding by
authorities or cases already adjudicated upon otherwise known as stare decisis was not, and indeed could not be,
settled until the nineteenth century in England. Being a salutary principle, it has been applied in India.30
Lord Cranworth observed in Young v Roberton:31
There is another duty incumbent on all courts, and pre-eminently upon a court of ultimate appeal, and which has
been invariably observed, namely, that as regards those rules which regulate the settlement and devolution of
property, those courts which have to interpret instruments and acts of parties must take care to be very guarded
against letting any supposed notions as to the inaccuracy of any rule which has in fact been acted upon, induce
them to alter it so as to endanger the security of property and titles.
Lord Chelmsford considered the matter from the point of the duty of a court of ultimate appeal when he observed as
follows in Mersey Docks v Cameron:32
The courts rightly abstain from overruling cases which have been long established, because if they did so, they
would only disturb, without finally settling the law. But when an appeal from any of their judgments is made to this
House, however, they may be warranted by previous authorities, the very object of the appeal being to bring those
authorities under review for final determination, the House cannot, upon the principle of stare decisis, refuse to
examine the foundation upon which they rest.
and by the House of Lords in West Ham Union v Edmonton Union:33

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Our decisions will not embarrass trade or commerce, nor will it affect transactions which may have been adjusted,
rights which may have been determined, titles which may have been obtained or personal status which may have
been acquired. Decree-holders will find that they possess a power which has hitherto been denied to them. No
doubt judgment-debtors like the respondent before us (who, as was found by the trial court, can easily pay up to the
decree if he will, but is unwilling to pay it up) will no longer be able to escape payment of their just liabilities. That
surely is a result which need not make us hesitate to lay down the law correctly.
Lord Wright in Admiralty Commissioners v Valverda (Owners),34 laid down:
This House has, no doubt, power to overrule even a long-established course of decisions of the courts, provided it
has not itself determined the question. It is impossible to lay down precise rules according to which this power will
be exercised. But in general this House will adopt this course only in plain cases where serious inconvenience or
injustice would follow from perpetuating an erroneous construction or ruling of law.
When the matter of Sangavarapu Anjaneyulu v Parankusam Rangacharyulu35 was brought before the Court, the
position of law on Order XXI, Code of Civil Procedure, 1908 was laid down for the erstwhile Madras State was laid
down inNaravanaswamy Naidu v Rangaswamy Naidu.36 In the arguments of the present case, the counsel for the
petitioner claimed that since that position had not been revised since 1926, nor had the judgment been cited as
precedent since then, the judgment had been rendered obsolete and need not be relied on. The Court repelled this
contention, and held as follows:
It is novel to suggest that merely because there was no occasion for a court to follow the precedent of the same
court for sometime, those decisions should be treated without any respect and should be disregarded.
In Bank of Jaipur Ltd v Davey,37 the matter dealt with the power of the Small Causes Court to set aside an ex parte
garnishee order. The petitioner argued that the Small Causes Court had ignored a precedent set by a Full Bench of
the Madras High Court in 1934, confirmed by the dismissal of a review petition filed against it in 1935. This decision
had established that such a power existed in the Small Causes Court. Per contra, the respondent argued that the
dismissal of the review petition did not establish a precedent, and that the position of law claimed by the petitioner
was not recognized till 1933. Hence, it could not be invoked by the petitioner as binding precedent.
Repelling the argument of the respondent, the Court observed:
First of all, a decision of a court does not depend for its validity on the number of years it has been in force, and the
number of decisions in favour of the particular point. As an ancient sage has remarked, a room kept dark for a
hundred years does not require another hundred years for light to be let in. The moment light is let in, the darkness
automatically disappears. So too the moment a valid and (binding decision of a High Court is given as in C. R P.
No. 778 of 1935 (Mad) (A), the days of non-decision disappear automatically, and this decision takes its place till it
is displaced or overruled which is not the case here.
In Chandra Binode Kundu v Ala Bax Dewan38 Mookerjee ACJ, when pressed to adhere to the rule enunciated in
Bhiram Ali Shaik v Gopi Kanth,39 even though it should be held erroneous in principle, as it was decided more than
20 years ago, observed:
We are sensible of the importance of maintaining, wherever possible, the authority of long-established decided
cases; but this doctrine is manifestly not of universal application...In the present case, there are, moreover, three
special features which cannot be entirely overlooked. In the first place, the decision in Bhiram Ali Shaik v Gopi
Kanth departed from what had been the law for over 60 years. In the second place, the current of decisions since
then has not been absolutely uniform. In the third place, we are called upon only to remove what has hitherto been
erroneously regarded as a fetter upon the right of an execution creditor to realise his dues by the sale of an
occupancy holding.
In Noor Mahommad v King,40 their Lordships of the Privy Council observed with respect to the opinion of Lord
Chief Justice in Rex v Sims,41 running counter to the principles enunciated on the same point in Makin s case:42
Page 3 of 4
The court of criminal appeal would thus appear to have rejected altogether the opinion of Lord Summer which,
although, as their Lordships have said, they believe that it must in one respect be somewhat qualified, has hitherto
been generally accepted as a governing principle. Recent dicta of the court of criminal appeal, though carrying
great weight, do not necessarily outweigh earlier dicta in the House of Lords or the court of crown cases reserved,
or in the court of criminal appeal itself, and if their Lordships have correctly understood those which they have
quoted, they can only regard them as in some degree inconsistent with settled principle.
Binding value of reported and unreported precedents
Where a subordinate judge considered that he was bound to follow without question a view expressed in a
judgment of Nagpur judicial commissioners court, which had been officially published in the Nagpur Law Reports,
Hallifax, AJC in Muralidhar v Anand Rao,43 observed:
That is not so. An opinion so expressed even without reasons is entitled to respect, and any examination of it ought
to start with the assumption that it is correct and has good reasons behind it. But it is not to be followed blindly, like
one that is officially published, though good reasons must be found for not following it.
In MSMM Chettyar Firm v Maungsein, the issue before the Court was whether under a joined reading of Order XXI,
Rule 63 and Order XXXIII, Rule 8, a Court can order attachment of property outside its territorial jurisdiction. The
District Judge had followed the decision in Bhai Khan v Des Rai [1914-16] 2 UBR 16 in preference to
Somasundaram Chetty v Muthu Veerappa Chetty [1911] 10 IC 794. According to the Rangoon High Court, this was
a salutary move, as the former judgment had been reported in law reports, whereas the latter was unreported.
Hence, the principle evolved by this judgment could be that if there is conflict between the rulings of the same High
Court, and one of them is reported in the authorised reports, whilst the other is not, the subordinate courts ought to
follow the former, which is reported in the authorised law reports.44
26 . , p 417.
27 . Gajanan v Brindaban [1971] 1 SCR 657 [LNIND 1970 SC 282], p 669, per Dua J; Nirshi Dhobin v Sudhir Kumar [1969]
1 SCR 469 [LNIND 1968 SC 181], p 471, per Hegde J.
28 . Corpus Juris Secundum, p 302, para 187.
29 . Ibid p 322, para 198.
30 . Brij Narain v Mangla Prasad 51 IA 129, AIR 1924 PC 50, p 55; Attar Kaur v Nikkoo AIR 1924 Lah 538 (FB), (1923) ILR
4 Lah 356 per Shadi Lal CJ; Allah Baksh v Chet Ram AIR 1945 Lah 123, 125, ILR 45 Lah 273; see also Narotam
Chand v Durga Devi AIR 1949 Lah 94, p 119: limitation; Maddur Krishnammal v Collector of Coimbatore AIR 1927 Mad
282 [LNIND 1926 MAD 198]: limiation; Risal Singh v Balant Singh (1915) ILR 37 All 496, p 509: affirmed in (1918) ILR
40 All 593 (PC); Abdul Razak v Mahommad Ibrahim 14 PLR 1903; Income-tax Commr v Kamaksha Narain AIR 1940
Pat 633, 538, (1941) ILR 20 Pat 13): income-tax.
31 . (1862) 4 Macqueen HLC 314, p 346.
32 . (1865) 11 HLC 443, p 510.
33 . [1909] AC 1, p 4-5, per Lord Loreburn, p 6, per Earl of Halsbury; Pate v Pate [1915] AC 1100, p 1108.
34 . [1938] AC 173, p 194.
35 . AIR 1958 AP 705-06.
36 . AIR 1926 Mad 749 [LNIND 1926 MAD 46]
37 . AIR 1957 Mad 353 [LNIND 1956 MAD 160]
38 . (1921) ILR 48 Cal 184, p 256, AIR 1921 Cal 25.

Page 4 of 4
39 . (1897) ILR 24 Cal 355.
40 . AIR 1949 SC 161, p 165.
41 . [1946] 1 KB 531 .
42 . [1894] AC 57.
43 . Muralidhar v Anand Rao, AIR 1925 Nag 414, 8 NLJ 153; Lachmi Narayan v Dharamchand AIR 1926 Nag 396, 398;
Secretary of State v Nandlal AIR 1928 Nag 52; Nur Mahommad v Rehman 28 NLR 116, AIR 1932 Nag 137 (2); Maung
Chit Tun v Ma Pwa Sein AIR 1934 Rang 39.
44 . AIR 1931 Rang 279; see also Cathrineholm v Nor Equipment Trading Co (1972) 2 WLR 1242: unreported case
followed in preference to reported one.
End of Document
Binding Value of Privy Council Decisions in Post Independence India
NS Bindra
The decisions of the Privy Council are now not binding on the Supreme Court, and the Supreme Court can declare
a decision of the Privy Council as not sound.45 The position the Privy Council occupied before 1950 was different
from the one it was designated after 1950. Before 1950, the law laid down by the Privy Council was the law of the
country. After 1950, the decisions of the Privy Council have only persuasive authority. The only final tribunal which
can lay down the law in this country is the Supreme Court, and if the Supreme Court has not laid down the law, then
the final authority in a state is the High Court for that State. It is not open to any inferior court or tribunal in a State to
consider the decision of the Privy Council, if it was at variance with the decision of the High Court; it had to follow
that decision till the Supreme Court laid down the correct principle.46
The Calcutta High Court, in Corporation of Calcutta v Director of Rationing,47 dealt at length with the relationship of
Indian Courts with the Privy Council. The Court held that Section 8, Abolition of Privy Council Jurisdiction Act, 1949,
attached binding value only to the decree and order of the Privy Council and to nothing more. The rules laid down
by the previous Privy Council decisions were not to be continued as existing Indian law under Article 372 of
Constitution or under Section 18 (1) of the Indian Independence Act, 1947, as the aforementioned expression did
not include the declaration of law by the courts. The reasoning and conclusion in the Privy Council decisions,
therefore, do not have the binding force which they enjoyed prior to 26 January 1950. However, they still retain
whatever persuasive value they may intrinsically have.
According to the decision of the Allahabad High Court in Kishen Chand v Ram Bala,48 the position immediately
prior to independence was that the final authority in constitutional matters, as far as the Government of India Act,
1935, was concerned, was not the Federal Court, but if an appeal was entertained by the Privy Council, it was the
Privy Council that was the ultimate authority. It was only when no leave was granted by the Federal Court and no
special leave was granted by the Privy Council that the decision of the Federal Court became final and effect was
given to it under Section 212 of the Government of India Act, 1935. Where the Federal Court took a particular view
in a case, and that very point came up before the Privy Council, and the Privy Council took a contrary view, it is that
contrary view which must prevail under Section 212 and not the view of the Federal Court. Hence, up till 26 Jan
1950, the decision of the Privy Council was a declaration of law within the meaning of s 212, Government of India
Act 1935, and was binding on all courts in India.
However, under Article 372 (1) of the Constitution, the law in force on 25 January 1950 continued in force until
altered or repealed or amended by a competent legislature or authority. Hence, the decision of a High Court which
was reversed or overruled by the Privy Council prior to 26 January 1950, ceased to be binding on the division
bench of that High Court prior and after 26 January 1950, even though the Privy Council decision might have
ceased to be binding after 26 January 1950.
A novel proposition from the Bombay High Court came in State of Bombay v Chhagan Lal,49 where the Court held
that as long as the Supreme Court does not take a different view from the view taken by the Privy Council, the
decisions of the Privy Council are still binding upon the High Courts.
The judgments and orders of the Federal Court referred to in Article 374 (2) of the Constitution are judgments and
orders which were delivered by the Federal Court in those suits, appeals and proceedings which were transferred to
the Supreme Court. The provision does not mean that all judgments of the Federal Court delivered before the
Page 2 of 4
Constitution have been given the same efficacy and the same binding authority as the judgment of the Supreme
Court delivered after the Constitution came into force.50
Reliance on English and Foreign Precedents
English decisions are not precedents which govern us, said Sankaran Nair J in Annapuranamma v Akkayya51 but
are only referred to for the purpose of finding out the principal underlying those decisions and to explain the Indian
statutes which are usually framed with reference to those decisions. Dunkley J.opined in Emperor v U Damapala:52
Where the law of British India appears on examination to be the same as the law of England on any subject, the
decisions of English Courts on that subject form a most valuable guide to the courts in India, and a decision of the
House of Lords on such a subject must be considered to be of paramount authority in India.
Even though the decisions of the English courts are not binding, they are of weight, especially because the
questions as to whether a piece of legislation provides merely for a matter of procedure or allows vested rights, are
obviously questions of general principle in regard to which the law could not possibly be different in England or in
India.53 The judgments of the superior courts of England and United States of America are only persuasive
precedents. The judges of India are under no obligation to follow them but, in many cases, they have followed it,
though they have not hesitated to differ from them when they conflicted with the statutory provisions contained in
Indian Act and the CPC.54 Where the wording of the relevant section in the English enactment has been freely and
in most cases bodily adopted in the Indian statute, with respect to such analogous provisions of the Indian law,
unaffected by the specificities of English law on fundamental concepts and on broad general principles, decisions of
a Court in England can be useful and of considerable guidance if utilised with due care and caution. However, the
provisions of the Indian statute must be understood in their background and setting and in interpreting them, regard
must be had to the conditions, customs and religious beliefs of those affected by the provisions. In a branch of the
law, rules of which are inspired by the broad general principles of the English law on the subject and have been so
adopted as to be in pari materia, reference to the decisions under that law can be of great assistance.55
When the law relating to a topic has been codified into statute as in the Evidence Act, the duty of the court is merely
to interpret the statute. Recourse to decisions of other jurisdictions laying down principles applicable there, though
they might be of the highest tribunals, is not very profitable. of course, if there had been legislation in those
jurisdictions using the same or similar expressions as in the Indian enactment, the guidance afforded by such
decisions would indeed be valuable.56 Codification has its own advantages and disadvantages, but it is a well-
settled rule of interpretation of the Indian law, that we must primarily look to our own enacted law and its terms, and
refer to the background of the English common law and precedents, only where there is no repugnancy, or in order
to throw further light upon the principle taken from that source, in order to take it part of the codified law of this
country.
Moreover, a decision of a court of law as opposed to a court of equity, which the common law lawyers recognise as
being inequitable, is not decision which ought to be followed in this country.57
If the words used in the Indian statute are obscure or ambiguous, perhaps, it may be permissible in interpreting
them to examine the background of the law or to derive assistance from English decisions bearing on the point, but
where the words are clear and unambiguous, it would be unreasonable to interpret them in the light of the alleged
background of the statute and to attempt to see that their interpretation conform to the said background.58 Ameer
Ali J. observed in Imam Bandi v Mutsaddi:59
Their Lordships cannot help deprecating the practice which seems to be growing in some of the Indian High Courts
of referring largely to foreign decisions. However useful in the scientific study of comparative jurisprudence,
reference to judgments of foreign courts to which Indian practitioners cannot be expected to have access, based
often of considerations and conditions totally different from those applicable to or prevailing in India, is only likely to
confuse the administration of justice.
It will be undesirable, and, in fact, wrong to base the decision on the Indian Stamp Act and its exemption merely on
the words of the English statute and on the English cases. It will be so, because a question of construction of a
statute must depend on the language of that particular statute which is being construed but also because the
Page 3 of 4
English Stamp Act and the English case-law are significantly different from the provisions of the law in India.60
Where the Indian statute is silent on the subject and when the point for decision is not affected by principles which
are peculiar to English law alone, the English decisions are a valuable source of elucidation on the problems arising
on such a subject.61
The views expressed in the judgments of English courts are referred to and adopted by the courts in India only
when it appears that those views are fundamentally sound and are based on immutable principles.62 Blind
following of English precedents according to the letter can only have the effect of reducing the estimation of the
common law by intelligent Indians to the level of its more technical and less fruitful portions making those portions
appear if possible more inscrutable to Indian than they do to English law suitors.63
Where the provisions between the English Act and the Indian Act, are in pari materia; where local conditions do not
materially differ from the conditions in UK, then keeping Indian conditions in view the outlook adopted by the
English courts may be examined, and if consistent with local jurisprudence, and social conditions, the path chalked
out for the movement of the law is profitable then assistance may be obtained from the decision. But ignoring all the
relevant considerations, English decisions cannot be bodily imported into the Indian legal system to create a hybrid
legal system. It is not right to be so hypnotised by English decisions as to overlook legislative changes introduced in
Indian law.64
In Liverpool and London SP &I Association v MV Sea Success,65 the Supreme Court observed as follows:
It is true that this Court is not bound by the American decisions. The American decisions have merely a persuasive
value but this Court would not hesitate in borrowing the principles if the same is in consonance with the scheme of
Indian law keeping in view the changing global scenario. Global changes and outlook in trade and commerce could
be a relevant factor. With the change of time; from narrow and pedantic approach, the Court may resort to broad
and liberal interpretation. What was not considered to be a necessity a century back, may be held to be so now.
In BR Enterprises & Others v State of Uttar Pradesh & Others,66 the question was whether the lotteries run by the
State itself were in the nature of gambling or whether they could be regarded as trade and commerce within the
provisions of Articles 301 and 303 of the Constitution of India. It was argued that there was a marked difference
between the India Constitution and the Australian Constitution and the Constitution of United States of America and
so the principles of the decisions of those courts could not be applied. It was held that recourse to the foreign
judgments is only to take stock of the views as to with what vision they judged and what they meant and understood
while dealing with the sale of lottery tickets. Nevertheless this apart, if reasoning of these decisions are to be tested
qua, Indian constitutional provisions, they should, of course, be tested with circumspection, not for interpreting the
provisions of the Constitution but only to know the nature and character of lotteries as understood in those
countries.
To obtain aid from American concepts and laws as precedent in the interpretation of Indian laws is not always
without dangers and they have therefore to be followed, if at all with caution, if not without hesitation because of
difference in the nature of those laws and in the complexion of its society and of the institutions to which they
apply.67 There is no due process clause in the Indian Constitution and hence, the considerations, which govern the
interpretation of the due process clause in the Constitution of United States as reported in the American decisions,
need not be imported by the courts when dealing with art 14.68 It would be better to follow English precedents on
questions of rules of natural justice because the American due process clause has not been adopted in India.69 In
Godfrey Philips v State of UP,70 the court observed that whatever be the similarities between the Constitutions of
other countries with similar federal structure as India namely USA, Canada, or Australia, the judicial decisions in
those jurisdictions may not be helpful in construing the allocation of legislative heads in the Indian Constitution.
45 . Shrinivas Krishan Rao Kango v Narayan Devji Kango AIR 1954 SC 379 [LNIND 1954 SC 52]; State of Bihar v Abdul
Majit AIR 1954 SC 245 [LNIND 1954 SC 23]; State of Bombay v Gajanan Mahadev (1954) 56 Bom LR 172; Nair
Service Society Ltd v KC Alexander AIR 1968 SC 1165 [LNIND 1968 SC 41].
46 . Jubilee Mills Ltd Commr of Income-tax, Bombay AIR 1959 Bom 51, p 53.
Page 4 of 4
47 . AIR 1955 Cal 282; P Krishnamurti v A Bapanayya1955 Andh WR 308; Subbareddi v Govindreddi AIR 1949 AP 49.
48 . AIR 1965 All 65, p 68, per Desai CJ; Legal Remembrancer, State of West Bengal v Corpn of Calcutta [1967] 2 SCR
170 [LNIND 1966 SC 341], per Subba Rao CJ.
49 . AIR 1955 Bom 1 [LNIND 1954 BOM 65], (1955) ILR Bom 203.
50 . State of Bombay v Gajanan Mahadev (1954) 56 Bom LR 172.
51 . (1913) ILR 36 Mad 544, p 549.
52 . AIR 1937 Rang 83, p 87, (1936) ILR 14 Rang 606.
53 . Kulkarni v State of Bombay AIR 1951 Bom 105 [LNIND 1951 BOM 1], p 110.
54 . Krishnaswamy v Thangavelu AIR 1955 Mad 430 [LNIND 1954 MAD 254]; Nakshed Bhagat v Jire Khan Sab AIR 1955
Pat 118: citing an English case is always dangerous, unless one is definitely sure of all the facts and circumstances and
the law concerning that case.
55 . Khatizabai v Controller of Estate Duty AIR 1960 Bom 61, p 65.
56 . State of Madras v Sayed Abdurahiman Baffaki Thangal AIR 1954 Mad 926 [LNIND 1954 MAD 12]; SK Yusuf v State
AIR 1954 Cal 258 [LNIND 1954 CAL 16].
57 . Muthu Karuppan v Annamalai AIR 1936 Rang 141-42.
58 . State of West Bengal v BK Mondal& Sons AIR 1962 SC 779 [LNIND 1961 SC 377], p 786.
59 . 45 IA 73: but the decisions in question were Amrican decisions and were correctly described as foreign, an adjective
which is inapplicable and would certainly not have been applied by the Privy Council to the decision of the English
courts; Chief Commr of Income-tax v North Ananatpur Gold Mining Ltd (1921) ILR 44 Mad 718, p 728, per Wallis CJ;
see also Seeni Nandan v Muthuswami Pillai (1919) ILR 42 Mad 821, p 832.
60 . National Security Assurance Co v Ratilal AIR 1961 Cal 48 [LNIND 1960 CAL 94], p 50.
61 . Re Imperial Bank of India AIR 1940 Cal 429, p 432; Maung Sen Sone v Ma Pau Nyun AIR 1932 PC 161, p 164.
62 . Basdevanand v Shantanand AIR 1942 All 302, p 307.
63 . Sir Fredrick Pollock, Genus of the Common Law, p 92; quoted by Mookerjee J in Manjuri v Akel 19 IC 793, p 813.
64 . Cotton Corpn of India v United Industrial Bank AIR 1983 SC 1272 [LNIND 1983 SC 258]; Anna Basu Mullick v
Daroteha Mittra AIR 1983 SC 916 [LNIND 1983 SC 182]: where English decisions have been referred to.
65 . (2004) 9 SCC 512.
66 . (1999) 9 SCC 700 [LNIND 1999 SC 517].
67 . Joseph Kuruvilla v Reserve Bank of India[1962] Supp SCR 632, (1961) Ker LT 69 (SC); Sodan Singh v New Delhi
Municipal Committee (1989) 4 SCC 155 [LNIND 1989 SC 423]: referring to and distinguishing from Savhir Ahmed v
State of Uttar Pradesh AIR 1954 SC 728 [LNIND 1954 SC 128], [1955] 1 SCR 707 [LNIND 1954 SC 128].
68 . Raj Sahiban Sher Singh v State of Rajasthan AIR 1954 Raj 65 [LNIND 1953 RAJ 142].
69 . East Punjab University v Tarloki Nath AIR 1953 Punj 3.
70 . (2005) 2 SCC 515 [LNIND 2005 SC 65].
End of Document
Doctrine of Precedent after the Constitution
NS Bindra
Doctrine of Precedent after the Constitution
When the Supreme Court decides a question of law, its decisions are, under Article 141 of the Constitution, binding
on all courts within the territory of India, and so, it must be a constant endeavour and concern of the Supreme Court
to introduce and maintain an element of the certainty and continuity in the interpretation of law in the country.
End of Document
Whether Supreme Court bound by its own decisions
NS Bindra
As already mentioned the doctrine of precedent has been accorded constitutional recognition by Article 141 which
makes the law declared by the Supreme Court binding on all others courts in India. Every word of this short article
has been the subject of controversy and hence required interpretation. Amongst the early questions that the court
was required to determine was whether the Court was bound by its own declarations.
In Bengal Immunity Co v State of Bihar,71 the appellant company was a manufacturer of vaccines, biological
products and medicines, registered in Calcutta. The company did not maintain any office, factory or agency in
Bihar, and was registered with the tax authorities of West Bengal for the recovery of sales tax. The Assistant
Superintendent of Commercial Taxes, Bihar wrote to the appellant demanding that the company should be
registered in Bihar for the purposes of sales tax and provisions for the recovery of sales tax be made. This was
followed by a formal notice from the Superintendent of Commercial Taxes seeking registration and recovery of
sales tax. The Court was called upon to interpret Article 286 of the Constitution. Article 286 had been interpreted
previously in State of Bombay v The United Motors (India) Ltd,72 and the Court had to determine whether it was
bound by this interpretation as per Article 141.
This question arose because the intervenors argued that the Court was not bound by the majority decision in the
aforementioned case, and that it was still open to the Court to examine and ascertain for themselves the true
meaning, import and scope of Article 286.
The majority opinion, written by Justice S.R. Das (acting Chief Justice at the time), is one of the earliest reflective
opinions on the doctrine of precedent as understood and applied by the Supreme Court. It also has interesting
reflections on the significance of benches in India. Some excerpts from the opinion are as follows:
There is nothing in our Constitution which prevents us from departing from a previous decision if we are convinced
of its error and its baneful effect on the general interests of the public. Article 141 which lays down that the law
declared by this Court shall be binding on all Courts within the territory of India quite obviously refers to Courts other
than this Court...Article 141, no doubt, provides that the law declared by the Supreme Court shall be binding on all
Courts within the territory of India. It has been urged before us that the phrase all Courts is comprehensive enough
to include the Supreme Court. It is pointed out, that since every decision declares the law, a later decision declaring
the law in a contrary sense, would in effect, be the exercise of legislative function which must be taken to have been
impliedly prohibited. While these arguments are not without force, it is reasonably clear, in the context of article 141,
that the phrase all Courts must refer to Courts other than the Supreme Court...In considering the question whether
a decision is open to reconsideration on account of its being recent, it is of importance to observe that our decisions
become declarations of law under article 141 and must be treated normally as final from the very moment they are
pronounced. The finality of the decisions of this Court, which is the court of last resort, will be greatly weakened and
much mischief done if we treat our own judgments, even though recent, as open to reconsideration...It was argued
for the respondents that article 141 gives the decisions of this Court the status of law, and that, therefore, if they are
to be changed that could be only by process of legislation. Article 141 only enacts that the decisions of this Court
are binding on all courts, and that does not stand in the way of this Court itself, reversing or modifying a previous
decision, as when that is done, such decision would thereafter become itself the law under that article. There is,
therefore, good reason for holding that this Court has the power to reconsider, in appropriate cases, a previous
decision given by it...The object of article 141 is that the decisions of this Court on these questions should settle the
controversy, and that they should be followed as law by all the Courts, and if they are allowed to be reopened
because a different view appears to be the better one, then the very purpose with which article 141 has been
enacted will be defeated, and the prospect will have been opened of litigants subjecting our decisions to a
continuous process of attack before successive Benches in the hope that with changes in the personnel of the
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Court which time must inevitably bring, a different view might find acceptance. I can imagine nothing more
damaging to the prestige of this Court or to the value of its pronouncements...The rule as to the binding character of
a judicial precedent is based on a juristic principle of universal application. The reason for its adoption is the
disastrous inconvenience of subjecting each question decided by a previous judgment to reargument, thereby
rendering the dealings of mankind doubtful by different decisions; so that in truth and in fact there would be no real
final court of appeal...
In his dissenting judgment Justice Jagannadhadas, agreed with the interpretation that the Courts mentioned in
Article 141 referred to subordinate courts, he was however not in favour of overruling of United Motors, with such
ease. He pointed out that whilst the procedure for the amendment of the American Constitution was rigorous, that
was not the case in India. Except for certain mentioned parts (not including Article 286), amendment was not at all
onerous, for the Indian Parliament. Consequently, clarifications where required must be left to the legislature.
The Supreme Court thus ruled that it was not bound by its own decisions and could reverse a previous decision
especially on a constitutional question. At the same time it was accepted that the court will be slow to do so unless
such previous decision appears to be obviously erroneous.73 In case such reversal is not made but there is a
conflict in judicial construction or interpretation in two decisions of the Supreme Court, then operating on a rule of
implied reversal the later decision will be followed.74
It may asked whether this slowness is similar to the reluctance expressed by the House of Lords when it
pronounced upon its newly acquired power of not being bound by its own decisions. The difference can be captured
in Lord Reids observation in Reg v Knuller (Publishers etc) Ltd:75 when he stated:
I have said more than once in recent case that our change of practice is no longer regarding previous decisions of
this House as absolutely binding does not mean that whenever we think that a previous decision was wrong we
should reverse it. In the general interest of certainty in the law we must be sure that there must be some very good
reason before we so act.
Reliance on Doctrine of Stare Decisis
In Waman Rao vUnion of India76 t he doctrine of stare decisis was discussed in detail in relation to the validity of
Article 31A. The validity of the First Amendment was upheld in Shankari Prasad as it rejected the argument that
constitutional amendments were law under Article 13 (2), and later Sajjan Singh refused to overrule this decision.
Golaknath employed the doctrine of prospective overruling, hence leaving the First Amendment untouched.
Khanna, in Kesavananda, discussed that just as 31A was valid on account of the doctrine of stare decisis, the
unamended portion of 31C too would be valid. The Court upheld 31A on its own merits, discussed the importance
of stare decisis but chose not to apply it for four reasons:
Firstly, Article 31A breathes its own vitality, drawing its sustenance from the basic tenets of our Constitution. Its
unstated premise is an integral part of the very making of the Constitution and it holds, as it were, a mirror to the
ideals which inspired the framing of the Constitution.
Secondly, why we do not want to resort to the principle of stare decisis while determining the validity of Article 31A
is that neither in Shankari Prasad (Supra) nor in Sajjan Singh (Supra), nor in Golak Nath (Supra) and evidently not
in Kesavananda Bharati (Supra) was the question as regards the validity as such of Article 31A raised or decided.
As stated earlier, Shankari Prasad (Supra) involved the larger question as to whether constitutional amendments
fall within the purview of Art. 13 (2) of the Constitution. It was held that they did not. In Sajjan Singh (Supra), the
demand for reconsideration of the decision in Shankari Prasad (Supra) was rejected, that is to say, the Court was
not inclined to consider once again whether constitutional amendments are also comprehended within the terms of
Art. 13 (2). Golak Nath (Supra) raised the question as to where the amending power was located and not whether
this or that particular amendment was valid. In none of these decisions was the validity of Article 31A put in issue.
Nor indeed was that question considered and decided in any of those cases. A deliberate judicial decision made
after hearing an argument on a question which arises in the case or is put in issue may constitute a precedent, and
the precedent by long recognition may mature into stare decisis. But these cases cannot be considered as having
decided, reasons apart, that the 1st Amendment which introduced Article 31A into the Constitution is valid.
Thirdly, the history of the Worlds constitutional law shows that the principle of stare decisis is treated as having a
limited application only. Justice William Douglas said in New York v United States that it is a wise policy to restrict
the principle of stare decisis to those areas of the law where correction can be had by legislation. Otherwise, the
constitution loses the flexibility which is necessary if it is to serve the needs of successive generations. It is for that
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reason again that Justice Frankfurter said in U.S. v International Boxing Club that the doctrine of stare decisis is not
an imprisonment of reason. Older the standing of a decision, greater the provocation to apply the rule of stare
decisis. A possible mischief arising out of this position was pointed out by Justice Benjamin Cardozo in Mac
Pherson v Buick Motor Co. by saying that precedents drawn from the days of travel by stag e-coach do not fit the
conditions of travel today. and alive to that possibility, Justice Brandeis said in State of Washington v W. C. Dawson
&Co. that stare decisis is merely a wise rule of action and is not a universal, inexorable command. The instances in
which the court has disregarded its admonition are many. In fact, the full form of the principle, stare decisis et non
quieta movere which means to stand by decisions and not to disturb what is settled, was put by Coke in its classic
English version as: Those things which have been so often adjudged ought to rest in peace. Such being the
justification of the rule, it was said in James Monroe v Frank Pape that the relevant demands of stare decisis do not
preclude consideration of an interpretation which started as an unexamined assumption. We have already pointed
out how the constitutional validity of Article 31A has to be deemed to have been upheld in Shankari Prasad (supra)
by a process of inferential reasoning, the real question therein being whether the expression law in Art. 13 (2)
includes law made in the exercise of constituent power.
Fourthly, is the one cited by Shri Tarkunde that on principle, rules like stare decisis should not be invoked for
upholding constitutional devices like Articles 31A, 31B and 31C which are designed to protect not only past laws but
future laws also. Supposing Article 31A were invalid on the ground that it violates the Constitutions basic structure,
the fact that its validity has been recognised for a long time cannot justify its protection being extended to future
laws or to laws which have been recently passed by the legislature. The principle of stare decisis can apply, if at all,
to laws protected by these articles, if those laws have enjoyed the protection of these articles for a long time, but the
principle cannot apply to the articles themselves. The principle of stare decisis permits the saving of laws the
validity of which has been accepted or recognised over the years. It does not require or sanction that, in future too,
laws may be passed even though they are invalid or unconstitutional. Future perpetration of illegality is no part of
the doctrine of stare decisis.
Justice Krishna Iyer,in a separate opinion, clarified his position on this question, as follows:
What the learned Chief Justice has in mind, if, with respect, I may venture to speak is that in constitutional issues
over-stress on precedents is inept because we cannot be governed by voices from the grave and it is proper that
we are ultimately right rather than be consistently wrong. Even so, great respect and binding value are the normal
claim of rulings until reversed by larger benches. That is the minimum price we pay for adoption of the
jurisprudence of binding precedents.
Decision on question of factis not binding
Decisions even of the highest court on questions which are essentially questions of fact, cannot be cited as
precedents governing the decision of other cases which must rest in the ultimate analysis upon their own particular
facts. The general principles governing appreciation of circumstantial evidence are well-established and beyond
doubt or controversy. The more difficult question is one of applying those principles to the facts and circumstances
of a particular case coming before the court. That question has to be determined by the court as and when it arises
with reference to the particular facts and circumstances of that individual case. It is no use, therefore, appealing to
precedents in such matters. Therefore, it serves no useful purpose to decide a case with reference to the decisions
of the court in previous cases.77 It is not proper to rely upon one or two sentences in a judgment without reference
to the facts of the case.78 It must be remembered that it will be a manifest abuse of judicial precedents to apply
isolated dicta from a judgment to a case where the facts are in essential particulars different.79 Hence, mere
precedents are not by themselves a sufficient guide. The wordings of the sections must be examined, and if on a
reasonable construction, a more desirable and equitable view can be taken, it should be taken. Mere technicalities
ought not to prevail.80 If a statute creates new circumstances which render the earlier decision inapplicable, the
effect must be to evade the earlier decision of the court. The earlier decision then cannot operate because the new
statute alters the circumstances to which the old decision applied, and as the cause of action is different, the earlier
decision ceases to play a part.81
The Supreme Court under Art.141 is enjoined to declare law. The expression declared is wider than the words
found or made.82 To declare is to announce opinion. Indeed latter involves a process, while the former expresses
result, Interpretation, ascertainment and evolution are part of process, while that interpreted, ascertained or evolved
is declared as law. Law declared by the Supreme court is a law of the land. A decision which is not express and is
not founded on reasons nor it proceeds on consideration of issue cannot be deemed to be a law declared to have a
binding effect as contemplated by Article 141 of the Constitution of India.83 Thus in Krishna KumarvUnion of
India84 the Constitution Bench held that a decision of the Supreme Court which does not set out the facts or the
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reasons for the conclusions or direction given, cannot be treated as a binding precedent under article 141 of the
Constitution. Similar views have been expressed by the apex court in Government of IndiavWorkmen of State
Trading Corporation.85
Institutional essentialism discussed in Part I of this book demonstrated how the power of making law is primarily
considered to lie with the legislature and the primary rule of the Court is to so undertake the task of interpretation as
to fathom legislative intention. The hold of the doctrine of separation of powers is again evident in the manner in
which precedential value is deduced by Courts. The importance of individuated decision-making and an obligation
not to occupy the space of the legislature can be appreciated by examining the decisions of the Court Rajendra
Prasad and Others v State of Uttar Pradesh86 and Dalbir Singh and Others v State of Punjab.87 Both cases had
the same bench of Justices, Krishnaiyer, A P Sen and D A Desai. Both cases involved appeals against the award of
death penalty to the petitioners. In Rajendra Prasad, Iyer and Desai changed the sentence to life imprisonment and
discussed in detail the relevant facts that must govern the special reasons set out by judges while awarding a death
sentence under Section 302 of the IPC. They held that reasons must deal with the criminal (and his lived
experiences) and not the crime. Sen dissented, seeking judicial restraint, and opined that the decision to
circumscribe the award of death penalty is necessarily a legislative one.
In Dalbir Singh, Justices Iyer and Desai modified the sentence to life imprisonment again, citing Rajendra Prasad
and Bishnu Deo Shaw v State of West Bengal (where Chinappa Reddy and Iyer had cited Rajendra Prasad and
changed sentence to life) as binding precedent.
Rajendra Prasads case and Bishnu Deo Shaws, [1979] 3 S.C.R. 355 [LNIND 1979 SC 150] case, have indubitably
laid down the normative cynosure and until over-ruled by a larger bench of this court that is the law of the land
under Art. 141. To discard it is to disobey the Constitution and such subversiveness of the rule of law, in a crucial
area of life and death, will spell judicial disorder. One thing is clear. Counting the casualties is not the main criterion
for sentencing to death; nor recklessness in the act of murder. The sole focus on the crime and the total farewell to
the criminal and his social-personal circumstances mutilate sentencing justice. We express ourselves in this explicit
fashion since the deep-rooted Raj criminological prejudices still haunt Free Indias courts and govern our mentions
from the grave. To- day, the law is what Rajendra Prasad, in its majority judgment, has laid down and that has been
done at unmistakable length, Willy-nilly, that binds judges and parties alike.
This manner of arriving at creating precedential value was not acceded to by Justice Sen who in his dissenting
again in Dalbir Singh ruled :
S. 302 I.P.C., 1860, confers upon the Court a discretion in the matter of the punishment to be imposed for an
offence of murder and the Court has to choose between a sentence of death and a sentence of imprisonment for
life; while under s. 354 (3)Cr.P.C., 1973, the Court is enjoined with a duty to record special reasons in case the
extreme penalty is awarded. But the question whether the death sentence should be awarded or not must, in my
view, be left to the discretion of the Judge trying the accused and the question of sentence must depend upon the
facts and circumstances obtaining in such case. A decision on a question of sentence depending upon the facts
and circumstances of a particular case, can never be regarded as a binding precedent, much less law declared
within the meaning of Art. 141 of the Constitution so as to bind all Courts within the territory of India.
The theory of precedents he then holds consists of the following three well recognized ingredients
(i) findings of material facts, direct and inferential. An inferential finding of facts is the inference which the
Judge draws from the direct, or perceptible facts,
(ii) statements of the principles of law applicable to the legal problems disclosed by the facts; and
(iii) judgment based on the combined effect of (i) and (ii) above.
27. For the purposes of the parties themselves and their privies, ingredient No. (iii) is the material element in the
decision for it determines finally their rights and liabilities in relation to the subject matter of the action. It is the
judgment that estops the parties from reopening the dispute. However, for the purposes of The doctrine of
precedents ingredient No. (ii) is the vital element in the decision...The other two elements in the decision are not
precedents. The judgement if not binding (except directly on the parties themselves), nor are the findings of facts.
This means that even where the direct facts of an earlier case appear to be identical to those of the case before the
Court, the Judge is not bound to draw the same inference as drawn in the earlier case.
He then tested the majority decision in Rajendra Prasad in the light of the aforesaid theory of precedents and
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concluded that the majority did not apply any legal principle to any legal problem disclosed by the facts and,
therefore the majority decision did not declare any law within the meaning of Art. 141 so as to bind all Courts in the
country. The general observations made in the context of sentencing jurisprudence he opined would have to be
regarded as the view of the Judge/Judges concerned-and not law declared by this Court any attempt to limit or
circumscribe the connotation of special reasons mentioned in s. 354 (3) of the Code of Criminal Procedure he ruled
would amount to unwarranted abridgement of the discretion legally vested in the trial court and constitutionally
upheld by this Court.
In Union of India and Others v Dhanwanti Devi and Others88 certain lands were acquired by the State for defence,
from the respondents, under the Jammu & Kashmir Requisition and Acquisition of Immovable Property Act, 1968.
The Act did not provide for the payment of interest or solatium. The state, by notification, awarded certain
compensation. The claimants approached an arbitrator under the Act, who substantially enhanced the
compensation and also provided interest per annum and a solatium. The State went up in appeal, and the High
Court upheld the arbitrators award as the Land Acquisition Act provided for interest and solatium, and it held that no
discrimination should be faced by those whose land is acquired under the regional law. The State went up in appeal
to the Supreme Court.
At the time of the appeal two conflicting judgements of the Supreme Court existed, on the matter. In Satinder Singh
&Ors.v Amrao Singh &Ors89 the Court had held that unless payment of solatium and interest were explicitly barred
by the statute, they must be paid, else it would amount to unjust enrichment of the state. In Union of India v Hari
Krishna Khosla90 on the other hand, it was held that there was no obligation to pay solatium unless expressly
provided in the statute. The respondents argued that Hari Krishna was not a valid precedent as it did not discuss
and distinguish Satinder Singh, and had merely reached a conclusion. Thereupon the Supreme Court distinguished
between the two cases and pointed out that the Satinder Singh decision related to the East Punjab Acquisition and
Requisition of Immovable Property (Temporary) Powers Act, 1948 which did not provide for any principle on the
basis of which compensation was to be calculated. It merely pinned compensation to Section 23 (1) of the Land
Acquisition Act. Consequently, the argument that this resulted in the automatic exclusion of other provisions of the
Land Acquisition Act (which dealt with interest and solatium) was negated. InHari Krishna Khosla, however, the
Requisition and Acquisition of Immovable Property Act provided for mechanisms to calculate compensation, but did
not provide for solatium or interest. This caused the court to rule that such provision could not be implied. Since the
law in dispute in Dhanwanti Case was enacted after the Requisition and Acquisition of Immovable Property Act, it
could be presumed that the legislature aimed to follow the latter Act instead of the Land Acquisition Act. In making
these distinctions, the judge clarified that
not everything said by a Judge...constitutes a precedent. The only thing in a Judges decision binding a party is the
principle upon which the case is decided and for this reason it is important to analyse a decision and isolate from it
the ratio decidendi. According to the well settled theory of precedents, every decision contain three basic postulates
- [i] findings of material facts, is the inference which the Judge draws from the direct, or perceptible facts; [ii]
statements of the principles of law applicable to the legal problems disclosed by the facts; and [iii] judgment based
on the combined effect of the above.91 A decision is only an authority for what it actually decides. What is of the
essence in decision is its ratio and not every observation found therein not what logically follows from the various
observations made in the judgment...No judgment can be read as if it is a statute. A word or a clause or a sentence
in the judgment cannot be regarded as a full exposition of law.
On the facts before it the Court held that the statute in question did not envision the payment of interest and
solatium.92
Operation of precedents in procedural law
The principle of stare decisis has far less applicability to the law of procedure than to that of substantive law.1
Dealing with the provisions of O 21, r 2, CPC, Sulaiman ACJ in Jyoti Prasad v Srichand,2 observed: The principle of
stare decisis does not apply to such decisions as they cannot be considered to have affected any rights in property
or title, or to have affected contracts and other dealings.
71 . AIR 1955 SC 661 [LNIND 1955 SC 122], per Majority SR Das acting CJ Bose, Bhagwati and Imam JJ, Jagannadha
Das, Venkatarama Ayyar and Sinha JJ, dissented: Jagannadha Das J held that correctness of the prior decision cannot
be straightway canvassed before the Supreme Court. It is only after the court came at least to a prima facie conclusion
that there are circumstances to justify a re-consideration that re-argument on the merits of that decision should have
Page 6 of 6
been permitted. Venkatarama Ayyar J held that the Supreme Court cannot differ from a previous decision of the court
because a view contrary to the one taken therein appears to be preferable, and Sinha J observed that the question we
have to determine at the outset is whether or not we should follow the previous decision of this court. We are all agreed
that in a proper case, it is permissible for this court to go back upon its previous decision; but we are again divided as to
whether this is a fit occasion for reviewing its previous decision.
72 . State of Bombay v The United Motors (India) Ltd, AIR 1953 SC 252 [LNIND 1953 SC 42].
73 . Dwarkadas Shrinivas v Sholapur Spg and Wvg Co AIR 1954 SC 119 [LNIND 1953 SC 124], p 137, per Das J.
74 . SP Kachar v Addl Dist Judge, Meerut(1978) All LJ 332; relying on Uttar Pradesh State Transport Corpn, Meerut v
State Transport Appellate Tribunal(1976) All LJU 683.
75 . (1972) 3 WLR 143, p 147; Lt-Col Khajoor Singh v Union of India [1961] 2 SCR 828 [LNIND 1960 SC 306], p 845, per
Sinha CJ.
76 . AIR 1981 SC 271 [LNIND 1980 SC 253].
77 . Prakash Chandra v State of Uttar Pradesh AIR 1960 SC 195, pp 197-98; Mood v Dumond 93 L Ed 865, p 892, 336
US 525, Frankfurter J dissenting; HR Gokhale v Bharucha Noshir AIR 1969 Bom 177 [LNIND 1967 BOM 69], p 186,
per Vimadalal J.
78 . Krishnaswami v Thirumalai AIR 1926 Mad 101, p 104; Kannan v Avvulla Haji AIR 1927 Mad 288 [LNIND 1926 MAD
331]-89, (1927) ILR 50 Mad 403; Prem Chand Roy Chand & Sons v Moti Lal AIR 1951 Bom 249.
79 . Shiv Shankar v Kali Ojha AIR 1929 Pat 392, p 395, (1929) ILR 8 Pat 471.
80 . State v Mangilal AIR 1952 MB 161.
81 . Anwar Khan Mehboob& Co v State of Madhya Pradesh [1966] 2 SCR 40 [LNIND 1965 SC 372], p 50, per
Hidayatullah J.
82 . Delhi Transport Corporation v DTC Mazdoor Congress (1991) 1 Supp. SCC 600
83 . Joji v Joint Director of Public Instruction, ILR 2001 (2) Kerala 85 [LNIND 2001 KER 129].
84 . 1990 (4) SCC 207 [LNIND 1990 SC 341].
85 . 1977 (11) SCC 641.
86 . 1979 SCC (3) 646.
87 . 1979 SCC (3) 745 decided in May 1979.
88 . (1996) 6 SCC 44 [LNIND 1996 SC 1298].
89 . (1961) 3 SCC 676.
90 . 1993 Supp. (2) SCC 149
91 . Interestingly, the Court has extracted these sentences from the dissenting judgment of Justice Sen in Dalbir Singh
supra note 87.
92 . The importance of the facts and the applicable statutory provision was again stressed in Haji Mohammed Din and
Another v Narain Dass AIR 1979 DEL 186. A judicial decision can only be binding authority for the statutory provision it
has interpreted; if the statutory provision has been amended the binding authority of the case also abates.
1 . Chidambaram v NA Chettiyar Firm AIR 1929 Rang 41, p 43, (1928) ILR 6 Rang 703; see also Narayanan v Theva
Amma (1928) ILR 51 Mad 46, AIR 1927 Mad 1043 [LNIND 1927 MAD 294], p 1051, per Phillips off CJ; Abdul Karim v
Lakshmanaswami AIR 1928 Mad 440 [LNIND 1927 MAD 295], 441, per Wallace J: Limitation Act; Annamalai v
Ramaswami (1941) ILR Mad 438, AIR 1941 Mad 161, p 171, per Patanjali Sastri; following Leach CJ in Krishna Iyer v
Subramania Iyer (1916) ILR 39 Mad 151, AIR 1939 Mad 371 [LNIND 1938 MAD 419](FB): s 47, CPC; Palia v Mathura
Prasad (1916) ILR 38 All 280, p 284; Brij Inder Singh v Kanshi Ram (1918) ILR 45 Cal 94, 106 (PC).
2 . (1929) ILR 51 All 237, AIR 1928 All 629-30.
End of Document
Binding force of Supreme Court Obiter
NS Bindra
Precedents are either authoritative or persuasive. An authoritative precedent is one which the court, before whom it
is cited, is bound to follow whether it approves of the principle or not. A persuasive precedent is one which stands
on its own merits and which the judges are not bound to follow. The only judicial principles which are authoritative
are those which are thus relevant in their subject matter and limited in their scope. All others, at the best are of
merely persuasive efficacy. They are not true ratio decidendi, and are distinguished from them, under the name of
dicta or obiter dicta, things said by the way.
When it came to the binding force of its own decisions on the High Courts, an early view adopted by the Court was
that as the Supreme Court was the highest judicial tribunal in the country it was necessary in the interest of
uniformity and judicial discipline that all the High Courts must accept as binding the obiter dicta of the Supreme
Court in the same spirit as the High Courts accepted the obiter dicta of the Privy Council.3 Such obiter dicta even in
a dissenting judgment are entitled to high respect, especially if there is no direct decision to conclude the question
at issue.4 Yet in Madhav Rao v Union of India (Privy Purses Case),5 on the application of Bachawat J.s opinion in
State of Gujarat v Vora Fiddali Badruddin Mithibarwala,6 Hedge J. observed:
Every observation of this court is no doubt, entitled to weight but an obiter cannot take the place of the ratio. Judges
are not oracles. In the very nature of things, it is not possible to give the same attention to incidental matters as is
given to the actual issues arising for decision. Further much depends on the way the case is presented to them.
Similar opinions have been expressed by other Courts. Thus Lord Stendale pointed to the fact that dicta are of
different kinds and of varying degrees of weight. Sometimes they may be called almost casual expressions of
opinion upon a point which has not been raised in the case, and is not really present to the judges mind. Such dicta,
though entitled to the respect due to the speaker, may fairly be disregarded by judges before whom the point has
been raised and argued in a way to bring it under much fuller consideration. Some dicta, however, are of a different
kind; they are, although not necessary for the decision of the case, deliberate expressions of opinion given after
consideration upon a point clearly brought and argued before the court. It is open, no doubt, to other judges to give
decision contrary to such dicta, but much greater weight attaches to them than to the former class.7
For example in Haramaniv Dinabandhu Misra,8 the question before the Court was whether a pre-1937 Hindu widow
was entitled to interest which her husband had in the joint family property which had devolved on a sole coparcener
prior to date of commencement of the Hindu Womens Rights to Property Act, 1937. The counsel for the respondent
sought reliance on the Federal Courts decision in Umayal Achi v Lakshmi Achi,9 which denied interest to pre-1937
widows. This was characterized by the appellants counsel as obiter dictum in relation to the present case because
reliance was not placed in the earlier case on Section 3 (2) of the Act. While agreeing with counsel on this factual
point, the Court disagreed on the nature of obiter dictum, holding it equally applicable and binding. The High Court
created a distinction between obiter and the prima facie view of the Court. It held:
This observation may be an obiter dictum inasmuch as the learned counsel for the predeceased sons widow did not
base his claim on Sub-section (2) of Section 3 and hence any observation about the applicability of that sub-section
to the plaintiff was not necessary for the decision of that case. But as is well known even the obiter dictum of a
superior Court is binding on a subordinate Court...But there is a real distinction between an obiter dictum of a
superior Court and a prima facie view taken by the superior Court...A prima facie view expressed on any question of
Page 2 of 3
law by a Judge is only his tentative view based on first impression whereas his obiter dictum is an expression of his
definite opinion, though it was not necessary for the decision of the case before him...
The distinction between the binding force of the obiter and ratio of a Supreme Court decision came to the fore in
Mohandas Issardas v AN Sattanathan,10 where the Division Bench of the Bombay High Court was required to
pronounce upon the power of Custom Authorities under Section 167- Item 8 of the Sea Customs Act, 1878, to
impose a penalty in excess of Rs. 1,000 in respect of goods which have been imported into India contrary to a
prohibition against importation of the goods or restriction upon the importation of the goods. This question came in
an appeal from the decision of a single judge of the High Court. The single judge had relied on Maqbool Hussain v
State of Bombay11 to arrive at a decision on Section 167 . However, in his reliance, the single judge admitted that
the Supreme Court had not conclusively decided on the point and that reliance was being placed on the obiter dicta
of the Supreme Court. In the opinion of the single judge, obiter was as binding as the operative decision of
Supreme Court. The Division Bench disagreed with the single judges observation, and dealt extensively with the
significance and operative limits of obiter dictum. The bench considered obiter dicta from the House of Lords, the
Privy Council and the Supreme Court. On the position of the Supreme Courts obiter, the Division Bench held:
But the question still remains as to what is an obiter dictum, given expression to by the Supreme Court, which is
binding upon the Courts in India. Now, an obiter dictum is an expression of opinion on a point which is not
necessary for the decision of a case. This very definition draws a clear distinction between a point which is
necessary for the determination of a case and a point which is not necessary for the determination of the case. But
in both cases points must arise for the determination of the tribunal. Two questions may arise before a Court for its
determination. The Court may determine both although only one of them may be necessary for the ultimate decision
of the case. The question which was necessary for the determination of the case would be the ratio decidendi; the
opinion of the tribunal on the question which was not necessary to decide the case would be only an obiter
dictum...Therefore, what according to the learned Judge is an obiter dictum is an opinion on some point which is not
necessary for the decision of the case. The emphasis is not only on the opinion, but also on the point. It is not
merely an expression of opinion unconnected with the point that arises, but it must be an opinion given on a point
which arises for determination...Therefore, it would be incorrect to say that every opinion of the Supreme Court
would be binding upon the High Courts in India. The only opinion which would be binding would be an opinion
expressed on a question that, arose for the determination of the Supreme Court, and even though ultimately it might
be found that the particular question was not necessary for the decision, of the case, even so, if an opinion was
expressed by the Supreme Court on that question, then the opinion would be binding upon us. It. is from this aspect
that we must turn to the decision of the Supreme Court which, it is contended, has over-ruled the decision to which
reference has been made.
A counter opinion was voiced in SN Mukherjee v State of West Bengal.12 An order of requisition of property was
made under the West Bengal Premises Requisition and Control (Temporary Provisions) Act, 1947. The petitioner
challenged the order, claiming that no case of public purpose that would justify requisition under the Act was made
out. Secondly, the statutory period of ten days notice prior to order of requisition was not followed, and the order
was passed within twenty four hours of giving notice.
The Court acceded to the petitioners reliance on Satya Narayan Nathani v State of West Bengal.13 The
Government counsel opposed this, and argued that according to the rules of the Court, the division bench in Satya
Narayan Nathani had to refer the matter to a full bench of the Calcutta High Court in light of an earlier division
bench reaching the opposite conclusion. Hence, reliance on the judgment was improper. The Court rejected the
argument of the Government counsel, and justified its reliance on Satya Narayan Nathani s case on the basis of it
being consonant with the observations of the Supreme Court in State of Bombay v Bhanji Munji14 and other
judgments. It held:
My own view is that, in the light of those observations of the Supreme Court, it was wholly unnecessary for the
learned Chief Justice to refer the matter to a Full Bench because the law declared by the Supreme Court of India is
binding on all courts in India under Article 141 of the Constitution and must therefore be applied in a subsequent
decision even though the resulting decision thereby might be in conflict with a prior Division Bench decision of this
Court. In Such circumstances reference to a Full Bench as required by the Rules of this Court is unnecessary as it
would be an idle ceremony.
Binding Force of Concession

Page 3 of 3
In Pramod Bhat v Kanwar Raj,15 the question before the Court was whether the Custodian of evacuee property
under the Administration of Evacuee Property Act, 1950 had the power to issue a show-cause notice to lessees for
them to state why the lease shouldnt be terminated, and whether the lease could be terminated by the Custodian.
The concerned provisions were Section 10 and Section 12, respectively, of the Act.
In the course of arguments, the counsel for the respondent sought to make concessions for the Custodian. He
argued that the merits of the concession must not be judged by reliance on Brij Narain v Mangla Prasad16 because
that judgment of the Privy Council did not deal with concessions for a Custodian. However, reliance could be placed
on B.C. Patel. v A.V. Patel17 because it dealt exclusively with concessions by a counsel for a Custodian. The Court
agreed with the counsel for the respondent, and held:
Now, in order that a decision of a Court on a concession should be considered to be a binding decision and a
decision which should bind Courts of co-ordinate jurisdiction, two conditions are necessary. The first is that the
concession must be necessary for the decision of the case...the other condition is that the Court must accept that
concession and put its own imprimatur upon that concession and must accept that concession as the true
statement of the law.
3 . Mohandas Issaradas v AN Sattanathan AIR 1955 Bom 113 [LNIND 1954 BOM 74], p 115.
4 . Ashok Leyland Ltd v State of Madras AIR 1957 Mad 263 [LNIND 1956 MAD 78], p 266.
5 . [1971] 3 SCR 9 [LNIND 1970 SC 481], p 193.
6 . AIR 1964 SC 1043 [LNIND 1964 SC 22].
7 . Lord Sterndale MR in Slack v Leeds Industrial Co-op Society [1923] 1 Ch 431, p 451; reversed in [1942] 2 Ch 475 ;
and [1924] AC 851.
8 . AIR 1954 Ori 54.
9 . AIR 1945 FC 25
11 . AIR 1953 SC 325 [LNIND 1953 SC 51].
12 . AIR 1958 Cal 510 [LNIND 1958 CAL 14], 516.
13 . AIR 1957 Cal 310 [LNIND 1957 CAL 17].
14 . AIR 1955 SC 41.
15 . AIR 1954 Bom 518 [LNIND 1954 BOM 51].
16 . AIR 1924 PC 50.
17 . AIR 1952 Bom 16 [LNIND 1951 BOM 115]
End of Document
Precedents to Guide Interpretation
NS Bindra
In Abdul Hamid v Karim Bux and Others18 t he question was whether, on the dismissal of a suit in default the
attachment before judgment automatically lapses and a fresh attachment is necessary on the restoration of the suit,
or whether, on the restoration of the suit, the attachment previously made is revived or can be said to have
survived. The relevant provision is Order 38Rule 9 of the CPC, which authorises attachment before judgment, but is
silent on this point of law. The court was faced up with a series of judgments from across High Courts holding that
the attachment lapses and is not revived on the restoration of the suit. In this context, the majority opined:
The language of Order 38, R. 9 no doubt is capable of both the interpretations but the well-recognised rule of
interpretation is that where the language is capable of two interpretations and where the section of the Act has
received a judicial construction and the said construction has long been acted on without any alteration in the
statute, the interpretation so recognised and acted on is to be accepted on the principle of stare decisis because it
is the general maxim that even a point of law has been settled by decision it forms a precedent which is not
afterwards to be departed from. The latter part of the rule which requires that the attachment shall be removed
when the suit is dismissed is either directory or mandatory. If it is directory the attachment is removed automatically
in spite of no order of the Court. If it is mandatory, then the duty of the Court is to pass an order and a party cannot
be penalised where the consequences for the dismissal appear to be the withdrawal of the attachment before
judgment. The court upheld the existing precedent on the matter.
In Basanagouda19 the petitioner went a step further and argued that the interpretation in line with precedent ought
to be endorsed by courts, even if that interpretation was not completely correct. This view of the courts inability to
change track despite the incorrectness of previous decisions became evident in cases like State of Gujarat and
OthersvMirzapur Moti Kureshi Kassab Jamat, Ahmedabad and Others,20 where the cow-slaughter bans was
upheld on grounds of the utility of cow urine.
However, in several cases this sense of destiny has been denied by the courts. The most salient and oft referred
judicial decisions are discussed below:
In Haryana Financial Corporation and Another v Messrs Jagdamba Oil Mills and Another21 the Supreme Court
opined that Courts should not place reliance on decisions without discussing as to how the factual situation fits in
with the fact situation of the decision on which reliance is placed. Observations of Courts are not to be read as
Euclids theorems nor as provisions of the statute. These observations must be read in the context in which they
appear. Judgments of courts are not to be construed as statutes. To interpret words, phrases and provisions of a
statute, it may become necessary for judges to embark into lengthy discussions but the discussion is meant to
explain and not to define. Judges interpret statues, they do not interpret judgments. They interpret words of
statutes, their words are not to be interpreted as statutes. and in Sarva Shramik Sanghatana (K.V) Mumbai v State
of Maharashtra and Others22
J. Katju quotes and endorses Lord Halsbury, L.C., in Quinn v Leathem, [1901] A.C. 495:
Now before discussing the case of Allen v Flood [1898] A.C. 1 and what was decided therein, there are two
observations of a general character which I wish to make, and one is to repeat what I have very often said before,
that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the
generality of the expressions which may be found there are not intended to be expositions of the whole law, but are
Page 2 of 2
governed and qualified by the particular facts of the case in which such expressions are to be found. The other is
that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that
may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical Code,
whereas every lawyer must acknowledge that the law is not always logical at all.
When there is a sharp conflict of opinion on a point and it can be stated generally that in almost all the High Courts
different views have been expressed at one time or the other, it would be singularly inappropriate to invoke the
doctrine of stare decisis in such a case where High Courts have differed and the matter has been brought to the
Supreme Court for resolving this difference of opinion. In such a case, it is open to the Supreme Court, and indeed
it is its duty to construe the relevant provisions and decide which of the two conflicting views should hereafter
prevail. The argument based on the practice prevailing in the majority of the high courts in this country is not of
much assistance herein.23
18 . AIR 1973 ALL 67.
19 . Basanagouda v Land Tribunal 2004 (4) Kar LJ 193.
20 . (2005) 8 SCC 534 [LNIND 2005 SC 856].
21 . (2002) 3 SCC 496 [LNIND 2002 SC 73].
22 . (2008) 1 SCC 494 [LNIND 2007 SC 1379]
23 . Tirumalachetti Rajaram v Radhakrishnayya AIR 1961 SC 1795 [LNIND 1961 SC 213], p 1801.
End of Document
Legislative Power to Override Precedent
NS Bindra
Legislative Power to Override Precedent
On the relationship between the legislature and the judiciary qua the theory of precedent, a clear assertion comes in
Janapada Sabha, Chhindwara v Central Provinces Syndicate Ltd.24 An Independent Mining Local Board was
constituted under the Central Provinces Local Self Government Act, 1920. The Act was repealed by the Central
Provinces and Berar Local Government Act, 1948, which contained a savings clause in Section 192 saving all rules,
bye laws and orders made, notifications and notices issued, taxes imposed or assessed, cesses, fees, tolls or rates
levied under the earlier Act and all rates, taxes and cesses due to the Independent Local Board shall be deemed to
be due to the Janpada Sabha to whose area they pertain. The levy of coal cess was challenged in the Supreme
Court, and the petition was dismissed. A subsequent petition was filed challenging the enhancement of levy, which
was allowed. The Court restrained the Sabha from recovering any additional tax over the ceiling amount prescribed
by the Court. To mitigate the effect of the Courts decision, the State Assembly passed the Madhya Pradesh Koyala
Upkar (Manyatakaran) Adhiniyam Act, 1964. The Act contained expressions such as Notwithstanding any
judgment. However, the Act did not contain any deeming provision in favour of the levy being sourced to the Act of
1948. On this basis, the Court dismissed the appeal.
On the role of the Amendment vis a vis the earlier judgment of the Court, the Court observed:
On the words used in the Act, it is plain that the Legislature attempted to overrule or set aside the decision of this
Court. That, in our judgment, is not open to the Legislature to do under our Constitutional scheme. It is open to the
Legislature within certain limits to amend the provisions of an Act retrospectively and to declare what the law shall
be deemed to have been, but it is not open to the Legislature to say that a judgment of a Court properly constituted
and rendered in exercise of its powers in a matter brought before it shall be deemed to be ineffective and the
interpretation of the law shall be otherwise than as declared by the Court.
24 . Janapada Sabha v Central Provinces Syndicate Ltd [1970] 3 SCR 745 [LNIND 1970 SC 67], p 751, per Shah J.
End of Document
Decisions from Different Benches and Bench Strength
NS Bindra
The question of stare decisis is further complicated by the fact that both the Supreme Court and the High Courts sit
in benches. In the Supreme Court there are no single judge benches but in the High Court decisions are first made
by single judges. The impact of divergent views and varied bench strength is considered in this section.
Precedential Value of decisions expressing divergent views
Sometimes, it is not easy to discover the true reasons which led to the superior court to its conclusion. When judges
in the highest court give divergent reasons for the same conclusion, it becomes very difficult to ascertain the ratio
decidendi which shall bind the subsequent and subordinate judiciary. In this aspect of the matter, nothing remains
except the actual judgment and a number of weighty opinions.25 It is essentially from this feature of House of Lords
decisions that these derive their wide freedom of action, despite the rule that it is bound by its prior decisions. For
since no sanctity attaches to one set of concurring reasons as against another, one may be preferred to another, or
even used merely to neutralise it, leaving the field clear. This technique of distinguishing is often regarded as in the
nature of an evasion of the system of precedent. It is respectfully submitted that, on the contrary, it affords a deep
insight into its essential nature.26
In Harshadrai R Desai v Balubhai M Batliwala,27 the question before the Court was whether under the Bombay
Tenancy Act, 1948, a civil court had jurisdiction to determine whether land in question was agricultural land, or
whether such jurisdiction was solely the province of the mamalatdar. The applicant relied on a single-bench
judgment that conferred jurisdiction on the civil court as well. As regards the applicability of that judgment as
precedent, the Court held:
This is a judgment given by a single Judge; but it is nevertheless a judgment of this Court, and unless there are
strong grounds for differing from that conclusion, we would be bound to follow that decision even if it be a decision
of a single Judge.
However, on merits, the Court held that the earlier judgment was erroneous, and the jurisdiction of the civil Court
was excluded by the Act.
In Jabalpur Bus Operators Association v State of MP,28 the question seeking determination before Jabalpur Bench
of the Madhya Pradesh High Court was that when co-equal benches of the Apex Court render decisions with
conflicting views then which view is to be followed by the High Court as a binding precedent?
The Supreme Court noted the approach of various high courts on the issue and the lack of a decision on the issue
by the Supreme Court. The two trends that were noticed were (a) following the latter case and (b) following the case
which in the judgment of the high court was correct. The court held that in case of conflict between decisions of the
apex court, benches comprising of equal number of judges, the decision of earlier bench is binding unless
explained by the latter bench of equal strength, in which case the later decision is binding. The court held:
High Courts and subordinate courts should not lack competence to interpret decisions of apex court since that
would not only defeat what is envisaged under article 141 of the constitution of India but also militate hierarchical
supremacy of courts...value has to be attached to precedent which has taken the shape of rule being followed by it
Page 2 of 9
for the purpose of consistency and exactness in decisions of Court, unless the Court can clearly distinguish the
decision put up as a precedent or is per incuriam.
When a general rule of construction has once been laid down by authority, a decision arising from its application to
a particular set of facts cannot operate as a precedent, for the very remote chance of any two sets of facts being
absolutely similar may be excluded. No judge can be fettered by an attempt by another judge to lay down any rule
of construction based on his opinion on the facts of the case before him.29
In JN Bagga v All India Reporter Ltd,30 All India Reporter sought to criminally prosecute partners of a firm that
published five different works which allegedly infringed on the copyright of AIR. The alleged infringer had advertised
the concerned works in journals in Nagpur. The question before the Court was whether a advertisement for sale in
a journal or newspaper amounted to offer for sale within Section 51 (b)(i) of the Copyright Act, 1957, and whether
such an offer for sale was made at Nagpur, where the journals were published, or at Allahabad, where the allegedly
infringing books had been written and published. In this context, the petitioner sought to rely on a judgment
(MacPherson v Appanna31) that was from the realm of specific performance of contract to buttress its submissions
as regards the expression offer for sale.
The Court did not accept the invocation of such a precedent, and held:
I must first point out that the judgments of the Supreme Court and the High Courts cannot be read out of context,
even though propositions of law appear to be laid down in general terms. In deciding a lis, primarily the Court is
considering the set up of facts, the nature of the dispute and the legal conclusions which ought to flow from the
facts found...We, therefore, need not be misled by the synonyms used because the emphasis must be laid upon the
Statute that was before their Lordships and the particular part of that Statute which was being interpreted.
In Koganti Jayakrishnav State of Andhra Pradesh,32 the controversy related to Rule 7 (8)(a) of A.P. Professional
Educational Institutions (Regulation of Admissions into Under-graduate Professional Courses through Common
Entrance Test) Rules, 1993, which provided for admission of meritorious students in reserved category to open
category. However, a subsequent Government notification allotted seats vacated by meritorious students of
reserved category to reserved category students, which would deny seats to the open category meritorious
students who were next in the merit list.
In the course of arguments, counsel for the petitioners sought to invoke the judgment of the Supreme Court in
Ritesh Shah v Y.L. Yamul,33 which held that a meritorious reserved category student ought to treated as an open
category student. The Court did not agree with the absolute application of this precedent, as it would lead to
discrimination against the meritorious reserved category student vis a vis other reserved category students. It
further observed that Ritesh Shah was based upon the principle of equality amongst equals, whereas the situation
in the present case was remarkably different.
On the applicability of Ritesh Shahs case as precedent in this case, the Court observed:
It is well settled that a judgment cannot be read as a statute. Furthermore it is well settled principle of law that a
decision is an authority for what it decides and not what logically can be deduced therefrom. It is further well settled
that even a little violation in fact or additional fact may make lot of difference in arriving at a just conclusion. It is not
for the Courts to blindly follow the decision without considering the extent of its applicability. Each case, as is well
known, must be applied to the extent the same is applicable.
When a bench of the High Court gives a decision on a question of law, it should in general be followed by other
benches unless they have reasons to differ from it, in which case the proper course to adopt would be to refer the
question for the decision of a full bench. Law will be bereft of all its utility, if it should be thrown into a state of
uncertainty by reason of conflicting decisions, and it is therefore desirable that in case of difference of opinion, the
question should be authoritatively settled. It sometimes happens that an earlier decision given by a bench is not
brought to the notice of a bench hearing the same question, and a contrary decision is given without reference to
the earlier decision. The expedient course would, in such circumstances, be for the bench hearing the case in which
the same point of law is involved, to refer the matter to a full bench in view of the conflicting authorities without
taking upon itself to decide whether it should follow the one bench decision or the other.34
Page 3 of 9
In Jai Kaur v Sher Singh,35 the question before the Court was whether there was a custom in the Grewal Jats of
Ludhiana that allowed daughters to inherit both ancestral and self-acquired property. A full bench of the Punjab
High Court had, in Hurmate v Hoshiaru,36 held that the custom extended only to ancestral property. However, a
division bench in Mohinder Singh v Kher Singh37 subsequently ruled that the custom extended to both the
ancestral and self-acquired property. This created a situation of competing precedents, leading to confusion on
which judgment to follow as precedent.
The Supreme Court severely chastised the division bench for not following the unequivocal ruling by the full bench.
The Court opined that the appropriate response from the division bench in a circumstance of difference in opinion
would have been a reference to a full bench.
On the role and limitations of a division bench, the Court observed:
When a Full Bench decides a question in a particular way every previous decision which had answered the same
question in a different way cannot but he held to have been wrongly decided. We had recently occasion to
disapprove of the action of a Division Bench in another High Court in taking it upon themselves to hold that a
contrary decision of another Division Bench on a question of law was erroneous and stressed the importance of the
well recognised judicial practice that when a Division Bench differs from the decision of a previous decision of
another Division Bench the matter should be referred to a larger Bench for final decision. If, as we pointed out there,
considerations of judicial decorum and legal propriety require that Division Benches should not themselves
pronounce decisions of other Division Benches to be wrong, such considerations should stand even more firmly in
the way of Division Benches disagreeing with a previous decision of the Full Bench of the same court.
The problem with an inflexible outlook on the binding nature of earlier decisions can be understood if the decision of
the Punjab and Haryana High Court in Pritam Kaur v Surjit Singh38 is examined.
The respondent had filed a suit for restitution of conjugal rights. His wife, Pritam Kaur, flatly refused to live with him
in Bhatinda as she was employed in the Rajasthan government. The trial court held that this was dereliction of
marital duties (that required cohabitation), hence decreed the suit in the husbands favour. The defendant wife went
up in appeal to a single judge Bench of the High Court who was faced with a Full Bench decision on the matter,
which had not dealt with Article 14 challenge, but had granted restitution under similar grounds. Unable to
distinguish this decision from the facts in question, and disagreeing strongly with the reasons and the decision given
by the Full Bench, the single judge referred the case to a higher Bench for reconsideration.
On referral the higher bench of the Court discussed the binding nature of precedent and gave it great weightage, in
the interests of certainty. While it obviously held that decisions by larger benches and by superior courts were
binding, it also felt that courts should, as far as be, seek not to overrule decisions by benches of the same size. In
this context it cited Mahadeolal Kanodia v The Administrator General of West Bengal39 where the Apex Court had
opined that
...Judicial decorum no less than legal propriety forms the basis of judicial procedure. If one thing is more necessary
in law than any other thing it is the quality of certainty. That quality would totally disappear if judges of co-ordinate
jurisdiction in a High Court start overruling one anothers decisions. If one Division Bench of a High Court is unable
to distinguish a previous decision of another Division Bench, and holding the view that the earlier decision is wrong,
itself gives effect to that view the result would be utter confusion.
The Court thus held that the single judge bench was bound by the Full Bench decision and had no reason to refer it
for reconsideration; the case was sent back to the single judge for decision on merits.
A similar approach was taken by the Madhya Pradesh High Court in Jabalpur Bus Operators Association and
Others v State of Madhya Pradesh and Another40 whilst dealing with binding force of earlier decisions. The Court
ruled :
with regard to the High Court, a single Bench is bound by the decision of another single Bench. In case, he does
not agree with the view of the other single Bench, he should refer the matter to the Larger Bench. Similarly, Division
Page 4 of 9
Bench is bound by the judgment of earlier Division Bench. In case, it does not agree with the view of the earlier
Division Bench, it should refer the matter to Larger Bench. In case of conflict between judgments of two Division
Benches of equal strength, the decision of earlier Division Bench shall be followed except when it is explained by
the latter Division Bench in which case the decision of latter Division Bench shall be binding. The decision of Larger
Bench is binding on smaller Benches.
The Supreme Court also leaned towards discipline and conformity when it sought to determine41 whether two
judge benches that disagreed with judgements by three judge benches could directly refer them to Constitutional
Benches in order to have them overruled. In Bharat Petroleum Corporation Limited v Mumbai Shramik Sangha and
Ors,42 the Court had discussed a similar question: Two learned Judges in that case doubted the correctness of the
scope attributed to a certain provision in an earlier Constitution Bench Judgment and, accordingly, referred the
matter before them directly to a Constitution Bench. The Constitution Bench that then heard the matter took the
view that the decision of a Constitution Bench binds a Bench of two learned Judges and that judicial discipline
obliges them to follow it, regardless of their doubts about its correctness. At the most, the Bench of two learned
Judges could have ordered that the matter be heard by a Bench of three learned Judges.43
The argument was made that, according to Order VII Rule 2 of the Supreme Court Rules, 1966, where, in the
course of the hearing of any cause, appeal or proceeding, a Bench considers that the matter should be dealt with
by a larger Bench, it shall refer the matter to the Chief Justice, who shall thereupon constitute such a Bench for the
hearing of it. Thus, the two-judge bench here had merely referred the matter to the Chief Justice.
The Court held that the Chief Justice in this case has merely an administrative duty; a direct referral to a
Constitutional Bench can only be made in cases where Article 145 (3) is attracted (interpretation of Constitutional
provisions). In a case where a two judge bench differs with one three judge bench it could only seek referral to
another three-judge bench.
However in the main the rule of greater the number greater the probity of a decision is followed. The Supreme Court
in this decision in the sixties ruled that where a full bench of say three judges is inclined to differ from the opinion
expressed previously by another full bench of three judges, the better course would have been to constitute a larger
bench. Such a course becomes necessary in view of the fact that otherwise the subordinate courts are placed
under the embarrassment of preferring one view to another, both equally binding upon them.44
The dispute between two and three judge benches was differently resolved in Javed Ahmed Abdul Hamid Pawala
vState of Maharashtra45 where a two judge division bench of the Curt was required to decide whether it was
required to rely upon a two or a three judge bench to decide on the impact of delay on the execution of death
sentence. In T V Vatheeswaran v State of Tamil Nadu,46 a two judge Division Bench of the Supreme Court held
that in case of a delay exceeding two years in the execution of a death sentence, the offender is entitled to file a writ
petition seeking that the sentence be quashed on account of an Article 21 violation. In Sher Singh v State of
Punjab,47 another Division Bench of three judges agreed with most of what was decided in Vatheeswaran, but held
that the two year limit was not practical given the nature of litigation in India and that other considerations (apart
from delay) also weighed in to the decision, and thereby effectively overruled Vatheeswaran.
Faced up with this situation in Javed Court found that, independent of the debate, there were reasons to quash the
death sentence in the case before them. It however did e comment on the aside about the validity of three judge
Division Benches overruling decisions by two judge Division Benches:
The Court sits in Divisions of two and three judges for the sake of convenience and it may be inappropriate for a
Division Bench of three judges to purport to overrule the decision of a Division Bench of two judges. It may be
otherwise where a full Bench or a Constitution Bench does so.
Assertions that the subsequent Courts should not feel bound by incorrect decisions are continually made. Thus in In
Re: Suresh Manharlal Mehta48 it was contended before the Bombay High Court that where a larger bench of the
Bombay High Court or even the Supreme Court adjudged a person insolvent, the insolvency court was bound to
annul the order if in its opinion the order ought not to have been made.
Such a contention was raised because Section 21 of the Insolvency Act provided that the court shall by order annul
Page 5 of 9
the adjudication where in its opinion the debtor ought not to have been adjudged insolvent. The Bombay High Court
did not agree to accept only a lexical definition of the word opinion. The term opinion in section 21 the Court held
could not possibly mean the personal opinion or view of the court. To ascribe to the term opinion in section 21
merely its lexical definition would entitle a single judge of the High Court to sit in appeal over the judgment of a
larger bench of the court or even of the Supreme Court. It could not be the intention of the legislature to make the
doctrine of precedent inapplicable to applications made under the Insolvency Act. The Court held:
This would not only be contrary to the doctrine of precedent but would denude the entire judicial system under the
Presidency - Towns Insolvency Act of any certainty. Such a submission would permit any person entitled to
maintain an application under section 21to keep making such applications till a judge, on the basis of his personal
opinion, even contrary to the decision of a larger bench or of the Supreme Court annuls it. An opinion under Section
21 is that which is capable of being translated into an order of the court enforceable as such.
The doctrine of precedent the Court pointed out did not preclude a judge or any other person from having a
personal view on a matter. However in the exercise of his judicial functions a judge was bound by the doctrine of
precedent. The term opinion in section 21 was thus held not to include within its scope the personal opinion or view
of the judge. Since a judges personal view contrary to a binding judgment were not capable of being translated into
an order of the court.
Whilst all the aforementioned cases discussed how to address difference of opinion between earlier and later
cases; between larger and smaller benches in A R Antulay v R S Nayak and Another49 the controversy arose
between different benches in the same case.
The Chief Minister of Maharashtra, Antulay, was charged with several offences relating to extortion of funds, under
the IPC. Requisite sanction was received from the Governor, in time. As per the Criminal Law Amendment Act,
1952, a Special Judge was to be appointed to try these charges. After Antulay resigned as Chief Minister, the
respondents filed several other charges against him, which were rejected on grounds of lack of sanction. They went
up in appeal, ending with a Constitution Bench of the Supreme Court holding that a member of a Legislative
Assembly was not a public servant and, further, transferred the proceedings from the Special Judge to the Bombay
High Court. This transfer I was challenged, in this case, as it denied the petitioner an appeal, which was his by right,
as well as having granted the High Court jurisdiction that, by law, lay with the Special Judge.
The majority opinion held that smaller benches of the Court were not subordinate to larger benches hence the
question of a writ of certiorari to quash an earlier judgement does not arise. However, in case of an error where
there is absence of jurisdiction, the Court must correct itself. The Court thus ruled that the jurisdiction to try a case
could only be conferred by law enacted by the legislature and this Court could not confer jurisdiction if it did not
exist in law and decided to correct this error. As according to them to perpetuate an error is no heroism. To rectify it
is the compulsion of the judicial conscience.
Decision of High Court on Local Statute
In interpretation of enactments, which are in force in a particular state, the Supreme Court generally attaches a
good deal of value to the views of the high court of that state, particularly when they have been fully considered by
it, because that court is expected to be sufficiently conversant with the provisions of the various local
enactments.50
Court of Co-ordinate Jurisdiction
Whilst sitting as a court of co-ordinate jurisdiction, a court may follow any one of the two conflicting decisions given
by courts of co-ordinate jurisdiction.51 One of the exceptions to the rule, that a decision of a court of co-ordinate
jurisdiction should be followed by another court similarly constituted, is that a judgment delivered, per incuriam is
not binding on a court of co-ordinate jurisdiction.
Decisions of Other High Courts
The courts should ordinarily follow a decision of another High Court in matters such as income tax, where it is
desirable to lay down a common policy. But where the wording of the section is not clearly in favour of a decision
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against the tax-payer and it is, to say the least, a case of doubt, the statute has to be interpreted in favour of the
subject when the court is dealing with a case of fiscal enactment.52
Decisions of Reconstituted High Courts
In State of Gujarat v Gordhandas,53 the question before the Court was the nature of precedent set by the Bombay
High Court, and the implications for the Gujarat High Court, which was a successor to the former after the division
of the erstwhile Bombay State into Gujarat and Maharashtra. This led the Court to refer to Section 87 of the
Bombay Reorganization Act, 1960, which stated that any law in force immediately before the appointed day extends
or applies and territorial references in any such law to the State of Bombay shall...be construed as meaning the
territories within that State immediately before the appointed day. The controversy that the Court had to resolve was
whether the precedents of the Bombay High Court were law in force prior to the bifurcation of states. Holding them
to be so, the Gujarat High Court held as follows:
The Gujarat High Court is a court of equal rank and status with the Bombay High Court prior to the appointed day (1
May 1960) and even as a matter of sound practice, in order to avoid conflict of authority and to secure certainty,
uniformity and continuity in the administration of justice, the principles applicable to the decisions of courts of co-
ordinate jurisdiction must be extended to the decisions of the Bombay High Court given prior to 1 May 1960. The
decisions of the High Court of Bombay given prior to 1 May 1960, have as much binding force and effect as if they
were the decisions given by the Gujarat High Court itself. A decision of a single judge of the Bombay High Court
given prior to 1 May 1960, would have the same binding force and effect as a decision of a single judge of the
Gujarat High Court; a decision of a division bench of the Bombay High Court given prior to 1 May 1960, would have
the same binding force and effect as a decision of a division bench of the Gujarat High Court and a decision of a full
bench of the Bombay High Court given prior to 1 May 1960, would have the same binding force and effect as a
decision of a full bench of the Gujarat High Court.
Quasi-judicial Bodies how far Bound by their Own Precedents
The high court cannot take upon itself the burden of directing the board of revenue as to what rulings they are
bound to follow and what they are not. It is for them to decide for themselves as to what shall be the cursus curiae
of that tribunal. When the board has not followed its previous ruling it cannot be said that the order impugned had
gone beyond the powers conferred on the Board of Revenue.54
In Prabhudas Kishoredas Tobacco vDeputy Commissioner of Income Tax55 it was reiterated that the decisions of
the Tribunal were are not precedents because they were only binding between the contesting/litigating parties
before the Tribunal. The Tribunal was not a court of record but it functions as a court within the limits of its
jurisdiction.56 The tribunal does not declare or pronounce law but the decisions of the Tribunal do, in most cases,
lead to a pathway towards the Supreme Court and High Court where law is declared and laid down, but the
decisions of the Tribunal by itself do not lay down or propound law. The Tribunal admitted that in several High Court
and Supreme Court Judgments the Tribunal has been asked to maintain uniformity in decisions and to follow and
adopt the orders passed by other co-ordinated Benches. This is necessitated in order to maintain judicial discipline
and to avoid chaos and anarchy in the administration of justice in so far as the tax related appeals are concerned.
Despite this need for uniformity the Tribunal refused to condone delay on the strength of an earlier decision of
Ahmedabad Bench of the Tribunal as these earlier decisions had no binding value and were not law. Instead, the
Tribunal advised it was better if the assessee to filed an appeal or revision petition though belatedly before the
concerned authorities, because the decision/judgment of the Supreme Court were declarations of the law of the
land.
Decisions per incuriam
In its primary sense, per incuriam means something determined through want of care. The Law Lexicon points out
that the expression connotes an order obviously made through some mistake or under some misapprehension as to
a decision or a dictum of a judge which clearly is the result of some material oversight.
In Broome v Cassell& Co Ltd,57 the plaintiff had been awarded damages for defamation. The defendants pleaded
justification. Before the commencement of the trial, the plaintiff gave notice that he wanted additional exemplary
Page 7 of 9
damages. The trial judge held that such a claim was inadmissible on notice, and it had to be specifically pleaded.
This decision of the trial was in direct opposition to Rookes v Barnard.58 In the trial Court, Lord Denning held:
All this leads me to the conclusion that, if ever there was decision of the House of Lords given per incuriam, this
was it. The explanation is that the House, as a matter of legal theory, thought that exemplary damages had no
place in the civil code, and ought to be eliminated from it; but as they could not be eliminated all together, they
ought to be confined within the strictest possible limits, no matter how illogical those limits were. Yet I am conscious
that, in all that I have said I may myself be at fault. Some will say that it is our duty to follow the House of Lords and
not to question their decision. We are not to reason why. Ours is but to do and die. If this be so, then I turn to
consider the case of the footing that we are bounded by Rookes v Barnard.
In appeal to the House of Lords, Lord Dennings observations as regard Rookes v Barnard being per incuriam were
criticized. Lord Diplock observed:59
It is inevitable in a hierarchical system of courts that there are decisions of the supreme appellate tribunal which do
not attract the unanimous approval of all members of the judiciary. When I sat in the court of appeal I sometimes
thought that the House of Lords was wrong in overruling me. Ever since that time there have been occasions, of
which the instant appeal itself is one, when, alone or in company, I have dissented from a decision of the majority of
this House. But the judicial system only works if someone is allowed to have the last word and if that last word,
once spoken, is loyally accepted. The court of appeal found themselves able to disregard the decision of this house
in Rookes v Barnard by applying to it the label per incuriam. That label is relevant only to the right of an appellate
court to decline to follow one of its own decision of the court of appeal. Even if the jurisdiction of the court of appeal
had been co-ordinate with the jurisdiction of the House and not inferior to it the label per incuriam would have been
misused.
In Indian Extractions Pvt Ltd v Vyas,60 the petition dealt with the construction of Section 33 (2) of the Industrial
Disputes Act, 1947. Counsel for the petitioner argued that a decision of the Bombay High Court (Premier
Automobiles v Ramachandra61) on the identical question ought not to be treated by the Gujarat High Court as
binding, and that the decision of the Bombay High Court was delivered per in curiam. This was argued on the basis
of the fact that the Bombay High Court did not take into consideration the impact of Section 38 of the Act on the
construction of Section 33 . Hence, the counsel claimed that the judgment of the Bombay High Court was infirm in
its wisdom due to non-consideration of Section 38 . Rejecting this contention and upholding the significance of the
Bombay High Court decision, the Court held as follows:
Here it seems convenient to allude to the juridical meaning of the expression per incuriam. In its primary sense it
means something determined through want of care. The law lexicons point out that the expression connotes an
order obviously made thought some mistake or under some mis-apprehension; a decision or a dictum of a judge
which clearly is the result of some material oversight. The doctrine of binding precedent of a co-ordinate Court is to
absolute in its applicability. It does not require a Court to abdicate wholly its own judgment. It does, however, rest
strongly on the principle of comity which requires uniformity of decisions of Courts and certainty about the law.
Moreover, the sound principle that confusion and uncertainly should, as far as possible, be avoided also requires
that precedents of the nature under consideration should be respected and followed unless there is strong
permissible reason for not doing so, for instance, in case of a decision delivered per incuriam. It is not, however,
every relevant consideration or aspect or facet of a question or point for determination about which there may have
been some mistake or misapprehension or which might have been overlooked by the Court which decided the
question or point that can be regarded as adequate ground for treating the decision as per incuriam.
The Apex Court in A.R. Antulay v R.S. Nayak and Anr.62 observed per incuriam are those decisions given in
ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the Court
concerned, so that in such cases some part of the decision or some step in the reasoning on which it is based, is
found, on that account to be demonstrably wrong.
Siddharam Satlingappa Mhetre vState of Maharashtra and Ors63 was a case which revolved around the
interpretation of section 438 Criminal Procedure Code and the meaning of extraordinary jurisdiction. The Supreme
Court inSiddharam clarified that describing the power as extraordinary meant that the power was not ordinary not
that the power was to be exercised in extraordinary cases. This interpretation the Court ruled was how the
Constitution bench in Sibbias case64 had interpreted section 438 and the subsequent interpretations by smaller
Page 8 of 9
benches had been decided the issue of the nature of power per incuriam. The apex Court in Sibbia had formulated
its interpretation of the section by balancing the protection of society and individual liberty and laid down a range of
conditions on the grant of the power to achieve this balance. Subsequent judicial decisions which were pronounced
oblivious of those conditions or which through a process of construction, read into the statute conditions which are
not to be found therein were categorized by Siddharam as decisions which were pronounced per incuriam.
25 . Allen, Law in the Making, fourth edn, p 248-49.
26 . Julius Stone, Province and Function of Law, p 180.
27 . AIR 1958 Bom 62 [LNIND 1957 BOM 53], p 65; Madhavan Nair v Gopala Panikar(1968) Ker LR 454; Rameshmy Roy
v Pashupati Kumar Pathak AIR 1968 SC 372 [LNIND 1967 SC 256].
28 . AIR 2003 MP 81 [LNIND 2002 MP 635], 2003 (1) MPHT 226.
29 . Govind Laxman v Hirachand Mansharam AIR 1919 Bom 40, p 41: authorities are useful only so far as they lay down
the law, but they are usually not safe guides when questions of facts are involved; Re Jaunpur Sugar Factory Ltd AIR
1925 All 658, p 660, per Mukerjee J; Khilawan v Emperor AIR 1928 Oudh 430, p 435.
30 . AIR 1969 Bom 302 [LNIND 1968 BOM 136], p 306, per Deshmukh J.
31 . 1951] 2 SCR 161 [LNIND 1951 SC 11].
32 . 2002 (4) ALD 389; Indian Charge Chrome Ltd v Union of India (2003) 2 SCC 533 [LNIND 2002 SC 815].
33 . (1996) 3 SCC 253 [LNIND 1996 SC 384].
34 . Jaisri Sahu v Rajdewan Dubey AIR 1962 SC 83 [LNIND 1961 SC 223], p 88; Jaswant Rao v State of Rajasthan AIR
1961 Raj 250 [LNIND 1960 RAJ 81]; Venkateshwara Rice Co v State of Andhra Pradesh [1972] 1 SCR 346 [LNIND
1971 SC 401], p 350, per Hedge J.
35 . AIR 1960 SC 1118 [LNIND 1960 SC 435], pp 1122-23.
36 . AIR 1944 Lah 21.
37 . AIR 1949 E Pun 328.
38 . AIR 1984 P&H 113.
39 . AIR 1960 SC 936 [LNIND 1960 SC 128].
40 . AIR 2003 MP 81 [LNIND 2002 MP 635].
41 . Pradip Chandra Parija and Others v Pramod Chandra Patnaik and Others (2002) 1 SCC 1 [LNIND 2001 SC 2759].
42 . (2001) 4 SCC 448 [LNIND 2001 SC 1068].
43 . Logically the court should have stayed with the discipline reasoning as reference from two to a three judge bench
could at best quell the dissatisfaction with the decision of the Constitution bench, it could not resolve it, especially if the
three judge bench also disagreed with the decision of the Constitution Bench.
44 . Atma Ram v State of Punjab AIR 1959 SC 519 [LNIND 1958 SC 157], p 527.
45 . AIR 1985 SC 231 [LNIND 1984 SC 310].
46 . AIR 1983 SC 361 [LNIND 1983 SC 58].
47 . AIR 1983 SC 465 [LNIND 1983 SC 89].
48 . In Re: Suresh Manharlal Mehta of Mumbai, as a Director of Star Precision Electronics (I) Ltd. and In Re: ICDS Limited,
AIR 2009 Bom 171 [LNIND 2009 BOM 324], 2009 (3) Bom CR 686 [LNIND 2009 BOM 324].
49 . AIR 1988 SC 1531 [LNIND 1988 SC 264].

Page 9 of 9
50 . State of Gujarat v Zinabhai Ranchodji Darji (1972) 1 SCC 233 [LNIND 1971 SC 621], pp 239-40, per Grover J;
Oklahoma Tax Commr v Texas Co 93 L Ed 721, p 731, 336 US 342, per Rutledge J; Vishnu Avatar v Shiv Avtar 1980
UJ 619 (SC).
51 . Tatoba Ganu v Tarabai AIR 1957 Bom 280, p 284.
52 . City Tobacco Mart v Income-tax Officer AIR 1955 Mys 49.
53 . AIR 1962 Guj 128, pp 138-39.
54 . Maroti Raibhan v Board of Revenue, Madhya Pradesh AIR 1954 Nag 91.
55 . Decided on27 August, 1993 by ITAT Ahmedabad http://indiankanoon.org/doc/815809/.
56 . Union of India & Anr. v Paras Laminates Pvt. Ltd. (1990) 186 ITR 722 [LNIND 1990 SC 426] (SC).
57 . Broome v Cassell& Co Ltd, [1971] 2 All ER 187, p 200 (CA).
58 . [1961] 2 All ER 825.
59 . (1972) 1 WLR 645, 724.
60 . AIR 1961 Guj 22 [LNIND 1960 GUJ 54], p 26; Beni Ram v Ganga Sah AIR 1968 Pat 284; Tribhuvandas
Pursottamdas v Ratilal Motilal AIR 1968 SC 372 [LNIND 1967 SC 256].
61 . 1960 ILLJ 433.
62 . Supra note
64 . AIR 1980 SC 1632 [LNIND 1980 SC 168].
End of Document
Overruling of Precedents
NS Bindra
Whilst the previous section spoke of the precedential value of different kinds of court decisions, in this section the
grounds on which Courts expressly deny precedential value to decisions is being elaborated upon.
A precedent overruled is definitely and formally deprived of all authority. It becomes null and void, like a repealed
statute, and a new principle is authoritatively substituted for the old.65 The principle communis error facit jus is
justified on the basis of the maxim communis error facit jus (common error sometimes passes current as law).
Where a decision of the courts, originally wrong, or an erroneous conception of the law, especially of real property,
has been made, for a length of time, the basis upon which rights have been regulated and arrangement as to
property made, the maxim communis error facit jus may be applied.66 Indeed, this is strictly in accordance with the
view of Lord Ellenborough, and it will be found that, where the courts of justice have declined to correct
longstanding misconceptions, the reluctance has been due to a wholesome fear of interference with rights based
upon them.67
In Bourne v Keane,68 Lord Buckmaster observed:
From these authorities I collect the following principles as applicable to such a question. Firstly, the construction of
a statute of doubtful meaning, once laid down and accepted for a long period of time, ought not to be altered unless
your Lordships could say positively that it was wrong and productive of inconvenience. Secondly, that decisions
upon which title to property depends, or which by establishing principles of construction or otherwise form the basis
of contracts, ought to receive the same protection. Thirdly, decisions that affect the general conduct of affairs, so
that their alteration would mean that taxes had been unlawfully imposed, or exemption unlawfully obtained,
payments needlessly made, or the position of the public materially affected, ought in the same way to continue.
It is often more important that the law should be certain than that it should be ideally perfect. These two
requirements are to a great extent inconsistent with each other, and we must often choose between them.
Whenever a decision is departed from, the certainty of the law is sacrificed to its rational development, and the evils
of the uncertainty thus produced may far outweigh the very trifling benefit to be derived from the correction of the
erroneous doctrine. The precedent, while it stood unreversed, may have been counted on the numerous cases as
definitely establishing the law. Valuable property may have been dealt with in reliance on it; important contracts may
have been made on the strength of it, it may have become to a great extent a basis of expectation and the ground
of mutual dealings. Justice may, therefore, imperatively require that the decision, though founded in error, shall
stand inviolate nonetheless.69
Lord Loreburn dealt with the matter in Murphy v Deichler:70
I think this case falls within the rule that it is not necessary or advisable to disturb fixed practice which has been
long observed in regard to the disposition of property, even though it may have been disapproved at times by
individual judges, where no real point of principle has been violated.
In Textile Labour Association v Ashok Mills Ltd,71 the question was whether a principle of limitation provided in
Section 79 (4) of the Bombay Industrial Relations Act, 1946, that had stood as good law for over a decade, and had
been settled by a full bench of the Industrial Court, could be discarded by the decision of the Gujarat High Court in
Page 2 of 5
Nagri Mills Ltd. v Textile Labour Association.72 The Court pointed to the fact that the principle had not been not
departed from by the legislature, when it amended the Act, and this non amendment affirmed the practice. Hence,
the principle ought not to be unsettled, even if there was some reason to accept another judicially recognised view,
as that would frustrate the whole policy of the Act.
Thus, the principle of stare decisis does not come into operation when there is departure from an incorrect view of
the law to follow the correct view. The principle is applicable only where the effect of departing from an established
rule of decision will be to unsettle transactions which have been previously supposed to be finally settled.73
In Narotam Chand v Durga Devi,74 in considering whether by reversing the decision in Lehna v Mst Thakri,75 in
holding that the property of a maternal grandfather in the hands of grandsons was not ancestral qua sons, any right
in property that might have come into existence would be affected or, in other words, any title in immovable property
would be disturbed or any expectations on the basis of which certain contracts might have been entered into would
be affected, Mahajan J observed:
It seems to me that by reversing this decision none of these consequences would follow. The only effect of the
decision is that it confers a power of control on the son or the maternal grandson in respect of alienations made by
his father. This power of control entitles him to bring a suit to challenge such an alienation. Such a power of control
is not right in property. It is only an option to avoid an alienation, and the right to bring a suit to safeguard the
reversionary rights being not an interest in immovable property if the right is taken away, it would not disturb any
title in immovable property. At best the reversal of the decision will only affect some pending suits and suits that
may in future be brought by such persons to control the alienations made by their fathers. The titles of the alienees
in such properties, on the other hand, become secure. Instead of disturbing their titles the overruling of this decision
would confirm those titles and make them absolute.
In Maktul v Mst. Manbhari,76 the question before the Court was the same as the question in Narotam Devi s case.
The Court applied the decision in Narotam Devi, holding it to be a precedent sound in law. In arriving at its decision,
the Court held that the rule of stare decisis was not so imperative or inflexible as to preclude a departure therefrom
in any case, but its application must be determined in each case by the discretion of the court and previous
decisions should not be followed to the extent that error may be perpetuated and grievous wrong may result.
In Empress Mills v Municipal Committee, Wardha,77 the Court was concerned with the interpretation of Section 66
(1)(o) of the Central Provinces & Berar Municipalities Act, 1922, from which the expressions imported and exported
were to be interpreted. It was submitted that different Courts in India had placed a certain construction on both
expressions (their dictionary meaning), and that settled construction should not be disturbed. The Court did not
accept this proposition, and held that none of the earlier decisions could have a bearing on the construction of
Section 66 (1)(o) because none of them dealt with issues of terminal tax. Hence, the Court revised the construction
of these expressions qua Section 66 (1)(o).
In rejecting the argument of settled construction, the Court observed:
The argument that in accordance with the current authority of the different courts of India, a different interpretation
should not be placed on the words of the section, is of little avail in a case where the decision has not been
acquiesced in for long or the authorities are not absolutely unanimous. Moreover, when it is not a case of disturbing
the course of construction which has continued unchallenged for such a length of time as to acquire the sanction of
continued decisions over a very long period there is, therefore, no principle which will preclude the superior court
from correcting the error.
In CB Distributors (Baroda) Pvt Ltd v Union of India,78 the Court was called upon to interpret Section 80M of the
Income Tax, 1961, which provided for deduction in taxable income with respect to inter-corporate dividends, to
evolve a method of computation of deductible income. The Court was faced with competing precedents to apply.
The Supreme Court had held in Cloth Traders Pvt Ltd v Additional Commissioner of Income-tax79 that the method
of computation had to base itself on the full amount of dividends received by the assessee. A year prior to the
aforementioned decision, the Supreme Court had held in Cambay Electric Supply Industrial Co Ltd v Commissioner
of Income Tax80 that computation had to base itself on dividend income computed in accordance with the
Page 3 of 5
provisions of the Act and not with reference to the actual amount of dividends received by the assessee. Hence, the
two judgments laid down opposite points of law.
The Court agreed with the reasoning in Cambay Electric, and disagreed with the Cloth Mills judgment. It held the
Cloth Mills decision to be erroneous in law, but prior to declaring it as bad law, the Supreme Court observed:
But, even if in our view the decision in Cloth Traders case is erroneous, the question still remains whether we
should over-turn it. Ordinarily we would be reluctant to over-turn a decision given by a Bench of this Court, because
it is essential that there should be continuity and consistency in judicial decisions and law should be certain and
definite. It is almost as important that the law should be settled permanently as that it should be settled correctly.
But there may be circumstances where public interest demands that the previous decision be reviewed and
reconsidered. The doctrine of stare decisis should not deter the Court from over-ruling an earlier decision, if it is
satisfied that such decision is manifestly wrong or proceeds upon a mistaken assumption in regard to the existence
or continuance of a statutory provision or is contrary to another decision of the Court.
In Keshav Mills v Commissioner of Income Tax,81 while deciding the ambit of Section 66 of the Indian Income Tax
Act, 1922, the Court was confronted with its decisions in New Jehangir Vakil Mills Ltd. v Commissioner of Income-
tax82 and Petlad Turkey Red Dye Works Co. Ltd. v The Commissioner of Income-tax.83 These judgments were
invoked by the petitioner, and the Court disagreed with them. In its quest to revise its position on Section 66, and
reconsider the aforementioned judgments, the Court made the following observations:
In reviewing and revising its earlier decision, this Court should ask itself whether in interests of the public good or
for any other valid and compulsive reasons, it is necessary that the earlier decision should be revised. When this
Court decides questions of law, its decisions are, under Article 141, binding on all courts within the territory of India,
and so, it must be the constant endeavour and concern of this Court to introduce and maintain an element of
certainty and continuity in the interpretation of law in the country. Frequent exercise by this Court of its power to
review its earlier decisions on the ground that the view pressed before it later appears to the Court to be more
reasonable, may incidentally tend to make law uncertain and introduce confusion which must be consistently
avoided. That is not to say that if on a subsequent occasion, the Court is satisfied that its earlier decision was
clearly erroneous, it should hesitate to correct the error; but before a previous decision is pronounced to be plainly
erroneous, the Court must satisfied with a fair amount of unanimity amongst its members that a revision of the said
view is fully justified. It is not possible or desirable, and in any case it would be inexpedient to lay down any
principles which should govern the approach of the Court in dealing with the question of reviewing and revising its
earlier decisions. It would always depend upon several relevant considerations:What is the nature of the infirmity or
error on which a plea for review and revision of the earlier view is based ‘ On the earlier occasion, did some patent
aspects of the question remain unnoticed, or was the attention of the Court not drawn to any relevant and material
statutory provision, or was any previous decision of this Court bearing on the point not noticed ’ Is the Court hearing
such plea fairly unanimous that there is such an error in the earlier view ‘ What would be the impact of the error on
the general administration of law or on public good ’ Has the earlier decision been followed on subsequent
occasions either by this Court or by the High Courts ‘ And, would the reversal of the earlier decision lead to public
inconvenience, hardship or mischief ’ These and other relevant considerations must be carefully borne in mind
whenever this Court is called upon to exercise its jurisdiction to review and review and revise its earlier decisions.
In Molar Mal v Kay Iron Works Pvt.Ltd,84 the Court was called upon to interpret Section 13 of the Haryana Urban
(Control of Rent and Eviction) Act, 1973, specifically the proviso to Section 13 (i)(b), which restrained the landlord
from seeking eviction of a tenant because of having obtained eviction of other tenants earlier under the very same
provision of law. The landlord sought to rely on Brij Lai Puri v Smt Muni Tandon,85 a decision of the Punjab and
Haryana High Court that held that the proviso did not restrict a tenant from filing subsequent eviction petitions if the
purpose was to evict tenants from one building. In the view of the High Court, the proviso only applied to multiple
buildings. The Supreme Court did not agree with the High Court, and held that the object of the proviso was to
restrict the right of the landlord to seek eviction, and hence reading a right on the landlord to evict more than one
tenant if those tenants were occupying different parts of the same premises, was improper.
In response to the Supreme Courts observation that the cited decision was erroneous in law, the landlord argued
that the position of law had stood since 1978, and hence had established a practice within its jurisdiction. Rejecting
this argument, the Supreme Court held:
Page 4 of 5
When we find that the interpretation of the proviso by the High Court is wholly contrary to the object of the Statute,
merely because it had remained to be the interpretation of the High Court for a considerable length of time, the
same cannot be permitted to continue to be so when it is erroneous and it is so brought to our notice. We will be
failing in our duty if we do not declare an erroneous interpretation of law by the High Court to be so, solely on the
ground that it has stood the test of time. Since, in our opinion, in regard to the interpretation of the above proviso,
no two views are possible, we are constrained to hold that the law declared by the Punjab & Haryana High Court
with reference to the proviso is not the correct interpretation and hold that the said judgment is no more a good law.
The narrative on the interplay between precedents and interpretation has demonstrated that there is this continuous
tension between wishing to settle the law; and allowing for its dynamic growth. In the next two sections of this
chapter two strategies employed by the Court to obtain certainty and to bring change are being evaluated. These
two case studies are only illustrative in nature and have been incorporated to demonstrate that whilst the law in
books asserts that the larger the bench the more stable the law; the operation of the large bench rulings may
require some reconsideration of this belief.
The second case study demonstrates how paradigmatic changes in meaning occur whilst observing.
65 . Salmond, Jurisprudence, tenth edn, p 189; quoted in Gangappa v State of Madras AIR 1957 AP 447, p 449.
66 . Brooms Legal Maxims, tenth edn, p 8.
67 . Ibid, p 87; Palmer v Johnson (1884) 53 LJQB 348, p 351, per Fry LJ:
having regard to the high authority of the learned judge who decided that case, and to the long period during which that
decision has stood unimpeached, I think that we ought not to overrule it. Still, speaking myself, I must say, with the
greatest respect, that if the question had been free from decision I am not satisfied that I should have decided it in the
same way.
Re Revensworth v Tindale [1905] 2 Ch 1, p 6 per Sterling LJ.
68 . Bourne v Keane, [1919] AC 815, 874; followed in Re Warden and Hotchkis Ltd [1945] 1 All ER 507, pp 509-10.
69 . Salmond, Jurisprudence, tenth edn, p 184.
70 . [1909] AC 446; Armugham Chetty v Muthu Koundan (1919) ILR 42 Mad 711, p 736; Babu Sakha Ram v Lahoo
Sambhaji AIR 1937 Bom 279, p 286; (1936) ILR Bom 508; see also Anant v Shankar AIR 1943 PC 196, where the view
of Ranganekar J is disapproved; Tej Pal v Rup Chand(1968) All LJ 1043.
71 . (1977) 18 Guj LR 241.
72 . 12 GLR 417
73 . Yasin Mhd v Rahmat Illahi AIR 1947 All 201, p 206.
74 . AIR 1949 EP 109, p 118.
75 . 39 PR 1895.
76 . AIR 1958 SC 918 [LNIND 1958 SC 85], 922-23, [1959] SCR 1099 [LNIND 1958 SC 85], pp 1108-09: doctrine held
inapplicable in the custom case in question.
77 . AIR 1958 SC 341 [LNIND 1957 SC 139], p 346.
78 . AIR 1985 SC 1585 [LNIND 1985 SC 207].
79 . (1979) 3 SCC 538 [LNIND 1979 SC 270].
80 . (1978) 2 SCC 644 [LNIND 1978 SC 129].
81 . [1965] 2 SCR 908 [LNIND 1965 SC 28], p 921, per Gajendragadkar CJ; Pilani Investment Corpn Ltd v Income-tax
Officer, Calcutta (1972) 1 SCC 122, p 124, per Sikri CJ; Bengal Immunity Co v State of Bihar [1955] 2 SCR 603 [LNIND
Page 5 of 5
1955 SC 122], per Das acting CJ; Legal Remembrancer, West Bengal v Corpn of Calcutta [1967] 2 SCR 170 [LNIND
1966 SC 341], p 176, per Subba Rao CJ; Shambhu Nath Sarkar v State of West Bengal (1973) 1 SCC 856 [LNIND
1973 SC 138], p 872, per Shelat acting CJ.
82 . AIR 1959 SC 1177 [LNIND 1959 SC 117].
83 . AIR 1963 SC 1484 [LNIND 1962 SC 353].
84 . (2000) 4 SCC 285 [LNIND 2000 SC 476].
85 . (1979) 1 RLR 58.
End of Document
Large Benches and the Uncertainty of Precedent
NS Bindra
The positive function of precedents is to provide a cast for future decisions. To borrow Dworkins analogy,
precedents are the earlier chapters in a chain novel, the next chapter of which is to be written by the judge in a
present day case. The application of precedents, while not mathematical, becomes a process simpliciter of
application of the ratio of previous cases to facts. Hence, for precedents to be applicable, there must be clarity on
what the operative part of the previous judgment is, and it ought not to be lost in the tresses of the judgment. In this
light, there seems to be a difficulty with decisions from large benches, particularly in finding what the applicable
precedent really is. An examination of Kesavananda Bharti v State of Kerala,86 and T.M.A. Pai Foundation v State
of Karnataka87 is being undertaken to show how large bench decisions can also produce uncertainties.
Kesavananda and beyond
Kesavananda Bharti is perhaps the most famous case adjudicated by the Supreme Court of India. Prior to
Kesavananda, in Golaknath v State of Punjab,88 the Supreme Court had held in a 6-5 majority that Parliament
could not amend Part-III of the Constitution. The majority in Kesavananda explicitly overruled Golaknath, and held
that Parliament could amend any part of the Constitution and to any extent. A limitation immediately placed after
this was that Parliament could not amend the basic features or the fundamental features of the Constitution.
Khanna and Reddy JJ. christened this doctrine as the basic structure doctrine. On a retrospective reading of cases
that came after it, Kesavananda is considered to have evolved the basic structure doctrine, which essentially
postulated that the Parliament can amend any part of the Constitution, but cannot destroy its basic structure or that
the power to amend does not include the power to abrogate. However, in the decision, there is no clear agreement
on what the basic structure really is, or what its constituent elements are.89
Kesavananda was followed by judgments such as Indira Gandhi v Raj Narain,90 which held that free and fair
elections are part of the basic structure of the Constitution. This was followed by Waman Rao v State of Madhya
Pradesh,91 where the Court held that laws placed in Schedule IX of the Constitution could be tested on basic
structure. The basic structure doctrine has been applied fluidly and with little heed to the content of Kesavananda or
the difference in opinion even within the majority. S.R. Bommai v Union of India92 represents the zenith of
innovation in this regard when it held that the Preamble was part of the basic structure of the Constitution, thus
empowering the judiciary could review Presidential orders under Article 356.
A strong argument is raised that there was not a majority decision in Kesavananda as the judges considered to be
part of the majority did not decide on the same thing. Thus, the invocation of the doctrine of basic structure does not
premise itself as much on precedent created by the case as it does on the perception handed down by subsequent
cases. Judges are free to create limitations or inroads into checking executive and legislative power by resort to the
basic structure doctrine, without heed to what would technically qualify as precedent.
From the aforementioned decisions, one may deduce that decisions of larger benches, by virtue of the sheer
number, are unable to constitute an applicable precedent in the traditional understanding of doctrine. A judgment
becomes less a determination of a principle of law and more a balancing exercise between various divergent points.
A process which may run short on doctrinal terms but whether such shortage or deficiency is necessarily
undesirable in a plural country is a question that needs further investigation.
TMA Pai and Beyond

Page 2 of 3
Prior to the judgment in Pai, the Supreme Court had held in St. Stephens College v University of Delhi93 that a
minority institution, under the right to establish and administer, could evolve its own selection process for students.
While considering a similar issue a year later in a writ petition filed by the Islamic Academy, the Court opined during
the arguments that such a right could not be accommodated within the parameters of Article 30 . This led the bench
to refer the matter to a larger bench of 7 judges, which further referred it to a bench of 11 judges. The reference
was made to the bench for it to survey the entire lot of conflicting judicial dicta and evolve an applicable and
resolute precedent that could be used by the government to frame cogent and uniform policy for the regulation of
minority instituations. The task of consolidation and resolution before the Court was mammoth, as Khare J.
observed in Pai:
After the Constitution of India came into force, Articles 29 and 30 came up for interpretation before various High
Courts and the Apex Court. There appears to be no unanimity amongst the judicial decisions rendered by the courts
as regards the extent of right conferred by Article 30 (1).
While faced with 11 questions, the court answered 7, leaving the rest to be answered by smaller benches in due
course of time. In dealing with the scope of Article 29 and 30 of the Constitution and the amount of regulation that
the state could impose on minority institutions, 5 separate opinions were issued. Quadri J. ruled with the majority,
except on 3 questions. Pal, Bhan and Variava JJ.disagreed with the majority, while agreeing on a few questions.
The multiplicity of opinions and the softness of agreements and disagreements led to a situation where the clear
application of Article 141 was subdued. As there was no clear minority on most points, the task of determining the
precise scope of the majority decision became even more
difficult. Attempts were made to extract the ratio, and the supposed precedent that the majority block in Pai lays
down is that state governments and universities cannot regulate the admissions policies of institutions responsible
merely linguistic and religious minorities, but state governments and universities can specify academic qualifications
for students and make rules and regulations to keep academic standards.1Pai soon ran into trouble due to the
confusion it generated and the carte blanche it offered to states to form different policies and still source it back to
the judgment. This led Khare CJ. to form a five judge bench to clarify Pai.
In Islamic Academy v State of Karnataka,2 the Court sought to clarify Pai and decide whether the power of
regulation and setting of academic standards prescribed by it operated qua unaided professional educational
institutions. The Supreme Court interpreted Pai as having held that unaided institutions may exercise autonomy in
their administration, but the principle of merit must not be forsaken and the entrance test should be structured in a
way that would ensure that meritorious students are offered seats. It was further held that unaided professional
colleges should also make provisions for advancement of education in students from the poorer and backward
sections of society by way of reservation of seats. In this regard, the Court empowered the government to prescribe
the percentage of seats according to local needs and different percentages for both minority and non-minority
institutions.
The decision in Islamic Academy premises itself strongly on the following observation from Pai:
It must be borne in mind that unaided professional institutions are entitled to autonomy in their administration while,
at the same time, they do not forgo or discard the principle of merit...The prescription of percentage for this purpose
has to be done by the government according to the local needs and different percentage can be fixed for minority
unaided and non-minority unaided and professional colleges. The same principles may be applied to other non-
professional but unaided educational institutions viz., graduation and post- graduation non-professional colleges or
institutes.
Against this reading of Pai, the case of P.A.Inamdar v State of Maharashtra3 was filed. This was adjudicated by a
7-judge bench,that was conspicuously devoid of judges who were on the bench for Pai. Inamdar begins with Lahoti
CJ. observing that while the ink on the opinions in Pai Foundation was yet to dry, the High Courts were flooded with
writ petitions, calling for settlements of several issues which were not yet resolved or which propped on floor post
Pai Foundation...The events following Islamic Academy judgment show that some of the main questions have
remained unsettled even after the exercise undertaken by the Constitution Bench in Islamic Academy in clarification
of the 11-Judge Bench decision in Pai Foundation.
Page 3 of 3
Inamdar draws sharp divergence with Islamic Academy. In the first place, the Court held that the observations in
Pai that formed the basis of the decision in Islamic Academy, did not intend to mean what Islamic Academy read
them as. The Court interpreted the aforementioned observations to mean that the management of institutions may
adopt a policy in conformance with the reservation policy of the state, but it ought to be based on voluntary or
consensual arrangements which can be reached between unaided private professional institutions and the state.
The Court held that the first part of the observations from Pai declared the law, while the second part was
suggestive in nature and aimed to guide the state. The second part, which formed the bedrock of the directives
issued in Islamic Academy, could not be read as law under Article 141, and it could only be enforced only by
consent or agreement or persuasion.
The controversy that eleven judges, followed by five and seven, respectively, set out to resolve has only become
murkier and more difficult to tread. Recent decisions relating to admission processes, such as Christian Medical
College (CMC) v Union of India,4 have referred to a common understanding of Pai passed down by Islamic
Academy, without considering the implications of Inamdar. A review petition was filed against this judgment on this
point. In CMC, the Court had to decide whether the conducting of the National Eligibility-cum-Entrance Test (NEET)
was unconstitutional, and in violation of the law laid down by Pai. The majority held that the NEET was in violation
of the principles laid down in Pai, and hence unconstitutional.5 Evidently, the precedent set by Pai looms
uncertainly over the bench.
86 . AIR 1973 SC 1461 [LNIND 1973 SC 154].
87 . (2002) 8 SCC 481 [LNIND 2002 SC 681].
88 . AIR 1967 SC 1643 [LNIND 1967 SC 49].
89 . Kesavananda has courted criticism from the likes of Seervai because of the uncertainty of the precedent it set, and
because it does not form binding law if Article 141 is strictly read: H.M. Seervai, Constitutional Law of India 3111
(1996); Rajeev Dhavan, Supreme Court and Parliamentary Sovereignty 68 (1976).
90 . AIR 1975 SC 1590 [LNIND 1975 SC 554].
91 . (1981) 2 SCC 362.
92 . (1994) 3 SCC 1.
93 . (1992) 1 SCC 558.
1 . TMA Pai Foundation v State of Karnataka, (2002) 8 SCC 481 [LNIND 2002 SC 681] (SCC Headnote).
2 . (2003) 6 SCC 697 [LNIND 2003 SC 667].
3 . (1992) 1 SCC 558 [LNIND 1991 SC 667].
4 . 2013 (9) SCALE 226 [LNIND 2013 SC 662].
5 . Dave J. dissented due to his belief that the NEET would ensure transparency and fair competition in the admission
process. He did not seek to invoke any of the judgments on this point apart from Preeti Srivastava v State of Madhya
Pradesh (1997) 7 SCC 120 [LNIND 1999 SC 665].
End of Document
Case Studies on Operation of the Theory of Precedent in Specific Areas of
law
NS Bindra
Case Studies on Operation of the Theory of Precedent in Specific

Areas of law
Case Study: Article 301- From Atiabari to Jindal Steel
The decisions on Article 301 of the Constitution are quite telling as a narrative of judicial hopscotch with precedents.
Article 301 states that there shall be free trade and commerce within the territory of India. Article 304 (b) of the
Constitution allows states to impose reasonable restrictions on these freedoms in public interest, subject to seeking
prior sanction from the President of India.
In Atiabari Tea Estate v State of Assam,6 a five judge bench had to judge the constitutionality of the Assam
Taxation (on Goods Carried by Roads or Inland Waterways) Act, 1954, which imposed a tax on the carriage of
goods through the State of Assam. The petitioners contended that this measure inter alia hampered free trade and
commerce in tea, and was in violation of Article 301as a consequence. The government argued that taxation was a
manifestation of sovereignty of the state and was not covered by Articles 301-304. Hence, the imposition of a tax
could not be tested on Article 301 and following provisions.
Agreeing with the petitioner, the majority observed:
If the movement, transport or the carrying of goods is allowed to be impeded, obstructed or hampered by taxation
without satisfying the requirements of Part XIII the freedom of trade on which so much emphasis is laid by Article
301 would turn to be illusory. When Article 301 provides that trade shall be free throughout the territory of India
primarily it is the movement part of the trade that it has in mind and the movement or the transport part of trade
must be free subject of course to the limitations and exceptions provided by the other Articles of Part XIII. That we
think is the result of Article 301 read with the other Articles in Part XIII.
Atiabari came under scrutiny within a year in Automobile Transport Co. v State of Rajasthan.7 The charging
provisions of the Rajasthan Motor Vehicles Taxation Act, 1951, which imposed a tax on vehicles that were used in a
public place or were kept in use, were challenged as being in violation of Part XIII. The Court observed that the
impugned provision offended Article 301 . In the course of arguments, the judges referred to Atiabari, and
expressed their agreement with it in the following terms:
The interpretation which was accepted by the majority in the Atiabari Tea Co. case is correct, but subject to this
clarification. Regulatory measures or measures imposing compensatory taxes for the use of trading facilities do not
come within the purview of the restrictions contemplated by Article 301 and such measures need not comply with
the requirements of the proviso to Article 304 (b) of the Constitution.
In expressing their agreement with Atiabari, the judges in Automobile created two categories of taxes: taxes that
impeded trade could be challenged for being in violation of Article 301, but taxes that were facilitative of trade or
compensatory in nature could not attract a challenge under Article 301 . Automobile, while agreeing in letter with
Atiabari, effectively watered down the ratio of Atiabari to a small sphere of application. Judgments subsequent to
Automobile have watered down standards to a larger extent, while paying deference to the correctness of the
decision in Atiabari.
Page 2 of 2
Case Studies on Operation of the Theory of Precedent in Specific Areas of law
In Bhagatram v Commissioner of Sales Tax8 and State of Bihar v Bihar Chamber of Commerce,9 the Court held
that the concept of compensatory nature of tax has been widened and if there is substantial or even some link
between the tax and the facilities extended to such dealers, directly or indirectly the levy cannot be impugned as
invalid. This assertion is prima facie opposed to the decision in Atiabari, yet no explicit overruling or distinguishing
of Atiabari was ever done.
All of these judgments were considered in Jindal Stainless Ltd v State of Haryana.10 The Haryana Local Area
Development Tax Act, 2000, sought to tax the transport of raw materials that were used as input in industries that
later sold the finished products outside the state. The Court surveyed the aforementioned judgments and observed
that the standards laid down in Automobile to test a law were not found in the Constitution, but were products of
judicial innovation. Jindal is the first decision in a series of decisions post Atiabari that effectively confirms the
decision in Atiabari and recognizes the divergence between Atiabari and Automobile. It has also given explicit
recognition of the blurring of precedents in passing down through Automobile to Bhagatram and Bihar Chamber. In
this regard, the Court observed as follows:
In our view, this test of some connection enunciated inBhagatrams case is not only contrary to the working test
propounded inAutomobile Transports case but it obliterates the very basis of compensatory tax. We may reiterate
that when a tax is imposed in the regulation or as a part of regulatory measure the controlling factor of the levy
shifts from burden to reimbursement/recompense. The working test propounded by a Bench of seven Judges in the
case ofAutomobile Transport and the test of some connection enunciated by a Bench of three Judges
inBhagatrams casecannot stand together...We reiterate that the doctrine of direct and immediate effect of the
impugned law on trade and commerce under Articl 301 as propounded in Atiabari Tea Co. Ltd. v State of Assam
and the working test enunciated in Automobile Transport (Rajasthan) Ltd. v State of Rajasthan for deciding whether
a tax is compensatory or not vide para 19 of the report, will continue to apply and the test of some connection
indicated in para 8 of the judgment in Bhagatram Rajeevkumar v Commissioner of Sales Tax, M.P. and followed in
the case of State of Bihar v Bihar Chamber of Commerce, is, in our opinion, not good law.
This series of judgments on Article 301 represents a very unreliable use of precedents. The invocation of Atiabari in
Automobile and the deference paid to it is surprising in light of the fact that Automobile s impact on Atiabari was to
restrict it heavily. The invocation of both these cases as precedents in the 1996 decisions is not in accordance with
the doctrinal principles as the Court tended to not follow these decisions in their operative portion, but selectively
chose portions of Automobile it could invoke to propose its test of some connection.
6 . AIR 1961 SC 232 [LNIND 1960 SC 175].
7 . AIR 1962 SC 1406 [LNIND 1962 SC 152].
8 . 1995 Supp (1) SCC 673.
9 . (1996) 9 SCC 196.
10 . (2006) 7 SCC 241 [LNIND 2016 SC 570].
End of Document
Right to Life and Liberty : The Chequered Jurisprudence of Article 21
NS Bindra
Right to Life and Liberty : The Chequered Jurisprudence of Article 21
A study of the development of Article 21 jurisprudence in India is an interesting exercise in mapping the manner in
which precedent is constructed, interpreted, overturned and, sometimes, reimagined to suit newer settings. The
decision that customarily serves as a starting point for all discussions on the topic is A K Gopalan v The State of
Madras11 where a six-judge bench heard a challenge to certain provisions of the newly passed Preventive
Detention Act, 1950.
Communist detenu, A K Gopalan, challenged the Act on the grounds that it violated Article 21 (right to life and
personal liberty), Article 19 (1)(d) (right to move freely throughout India) and Article 22 (5)(right to make a
representation against grounds for detention). The Act mandated that no court could inquire into the necessity of
detention, seek the production of the grounds for detention (by the detenu or the authority) or inquire into the truth
of the grounds. The six judges, faced, for the first time, with several vital questions of constitutional interpretation,
each issued individual judgments, a fact that would plague future understanding of the case, endlessly.
The six judgeskania, C.J., Fazal Ali, J., Sastri, J., Mahajan, J., Mukherjea, J. and Das, J.unanimously held Section
14 of the Act, that disallowed disclosure of the grounds of detention before courts, to be unconstitutional. The
decision, however, is better known for two strands of its analysis of Article 21 the meaning of procedure established
by law, and whether the rights enumerated in Part III are distinct codes or not. This led to two chains of cases
culminating in a seven-judge bench decision in Maneka Gandhi v Union of India.12
11 . AIR 1950 SC 27 [LNIND 1950 SC 22].
12 . AIR 1978 SC 597 [LNIND 1978 SC 25].
End of Document
Interpreting the Text of Article 21
NS Bindra
Counsel for the petitioners in Gopalan argued that procedure established by law was meant to be read with the
same import as procedural due process as seen in American jurisprudence, as the drafters of the Indian
Constitution meant only to avoid the concept of substantive due process. The counter argument sought to establish,
through reference to constitutional debates, that the Constituent Assembly had considered and discarded the
phrase due process of law and, thus sought to establish parliamentary supremacy. Kania, C.J. agreed
wholeheartedly with this assessment and held,
The deliberate omission of the word due from article 21 lends strength to the contention that the justifiable aspect of
law, i.e., to consider whether it is reasonable or not by the Court, does not form part of the Indian Constitution. The
omission of the word due, the limitation imposed by the word procedure and the insertion of the word established
thus brings out more clearly the idea of legislative prescription in the expression used in article 21 . By, adopting the
phrase procedure established by law the Constitution gave the legislature the final word to determine the law.13
Mukherjea, J. and Das, J. were in agreement with the Chief Justice on this point, and opined that the true fetter
against arbitrary legislative action ought to be intelligent public opinion14 and it was not the Courts position to
adjudicate upon the policy of the Constitution, in making the Parliament supreme.15
Sastri, J., whose opinion is often seen to be the one that swung the balance against procedural due process, did
not accept this view of parliamentary supremacy, as it stultified the effect of Article 13on Article 21 . He wonders,
Could it then have been the intention of the farmers of the Constitution that the most important fundamental rights to
life and personal liberty should be at the mercy of legislative majorities as, in effect, they would be if established
were to mean merely prescribed? In other words, as an American Judge said in a similar context, does the
constitutional prohibition in article 13 (2) amount to no more than You shall not take away life or personal freedom
unless you choose to take it away, which is mere verbiage.16
His middle path was to lay stress on the term established and view procedure established by law as:
...what the Privy Council referred to in King Emperor v Benoari Lal Sharma [1945] F.C.R. 161as the ordinary and
well-established criminal procedure, that is to say, those settled usages and normal modes of proceeding
sanctioned by the Criminal Procedure Code which is the general law of criminal procedure in the country...It can be
no objection to this view that the Code prescribes no single and uniform procedure for all types of cases but
provides varying procedures for different classes of cases. Certain basic principles emerge as the constant factors
common to all those procedures, and they form the core of the procedure established by law.17
Mahajan, J., while claiming not to enter into the controversy surrounding the interpretation of procedure established
by law18 comments,
Article 21, in my opinion, lays down substantive law as giving protection to life and liberty inasmuch as it says that
they cannot be deprived except according to the procedure established by law; in other words, it means that before
a person can be deprived of his life or liberty as a condition precedent there should exist some substantive law
conferring authority for doing so and the law should further provide for a mode of procedure for such deprivation.
This article gives complete immunity against the exercise of despotic power by the executive. It further gives
Page 2 of 3
immunity against invalid laws which contravene the Constitution. It gives also further guarantee that in its true
concept there should be some form of proceeding before a person can be condemned either in respect of life or his
liberty. It negatives the idea of fantastic, arbitrary and oppressive forms of proceedings.19
Fazal Ali, J., discussed the historical context that caused Article 21to be phrased the way it is, but sought to decide
on the basis of the meaning of law as determined by Indian courts in the past. He noted the fact that natural justice
as a term is vague, but the tenet of natural justice being invoked in this case, i.e., the right to be heard, was clear
and had formed part of the law of the land. In his view, the term law in Article 21 would have to include the four
principles of natural justice enumerated in Willis book, namely: notice, opportunity to heard, an impartial tribunal and
an orderly course of procedure.20
It is, thus, difficult to discern a clear majority on this point of law. Seervai reads Sastri, J. as having opined against
reading natural justice into procedure established by law, and claims that logical consistency could have been
brought into his judgment had the first two clauses of Article 22 been appended to Article 21, as they embody
procedural due process requirements.21 While this may well be true, as Sastri, J. was reading the right to personal
liberty as the right against physical restraint (as is evidenced by his reference to the CrPC), inGopalan, there was
no consensus that there is any such limitation to the understanding of personal liberty, especially because the case
involved a person whose liberty had been restricted even by the narrowest construction of the term. The Court in
Kharak Singh v State of Uttar Pradesh &Others,22 cited Gopalan as having defined personal liberty as relating to
the person or body of a person, and hence being antithetical to physical restraint or coercion. The Court then
opined that coercion must be understood in a broad sense, as including psychological restraints. It held:
...its [personal libertys] narrowest interpretation would be that it comprehends nothing more than freedom from
physical restraint or freedom from confinement within the bounds of a prison; in other works, freedom from arrest
and detention, from false imprisonment or wrongful confinement. We feel unable to hold that the term was intended
to bear only this narrow interpretation but on the other hand consider that personal liberty is used in the Article as a
compendious term to include within itself all the varieties of rights which go to make up the personal liberties of man
other than those deal with in the several clauses of Art. 19 (1). In other words, while Art19 (1) deals with particular
species or attributes of that freedom, personal liberty in Art. 21 takes in and comprises the residue...Is then the
word personal liberty to be construed as excluding from its purview an invasion on the part of the police of the
sanctity of a mans home and an intrusion into his personal security and his right to sleep which is the normal
comfort and a dire necessity for human existence even as an animal? It might not be inappropriate to refer here to
the words of the preamble to the Constitution that it is designed to assure the dignity of the individual and therefore
of those cherished human value as the means of ensuring his full development and evolution. We are referring to
these objectives of the framers merely to draw attention to the concepts underlying the constitution which would
point to such vital words as personal liberty having to be construed in a reasonable manner and to be attributed that
these which would promote and achieve those objectives
While Kharak Singh took the meaning of personal liberty a step forward, it did not need to engage with the meaning
of procedure established by law as the impugned Regulations in that case were executive directions and were not
validly legislated law. Subba Rao, J. however, in his minority opinion, drew a connection between Article 19 and
Article 21, and opined that the Regulations would have to pass the test of reasonableness under Article 19, in order
to be upheld.23 This case was followed by another surveillance case, Govind v State of Madhya Pradesh24 where
the Regulations were identical but were made under the Police Act of Madhya Pradesh. The Court upheld the
Regulations stating that personal liberty could be curtailed by procedure established by law. The Court did,
however, discuss the reasonableness of the procedure under the regulations and only then upheld them; implying
that mere statutory backing is not what is envisioned under Article 21.25 Interestingly, the Court did not reference
Gopalan at all, in this case.
13 . A K Gopalan v The State of Madras AIR 1950 SC 27 [LNIND 1950 SC 22]para 23.
Page 3 of 3
17 . A K Gopalan v The State of Madras AIR 1950 SC 27 [LNIND 1950 SC 22], para 147.
21 . H.M. Seervai, Constitutional Law of India, vol.2, (Delhi: Universal Law Publishing Co. Ltd, 1993) p.981.
22 . AIR 1963 SC 1295 [LNIND 1962 SC 436].
23 . AIR 1963 SC 1295 [LNIND 1962 SC 436], para 34.
24 . AIR 1975 SC 1378 [LNIND 1975 SC 124]
25 .Ibid, para 31.
End of Document
Fundamental Rights: Self-contained Codes?
NS Bindra
The second interpretative concern that was discussed at length in Gopalan was the interplay between Articles 19,
21 and 22. The petitioner had argued that the Act was open to judicial review under each of the three Articles, as
preventive detention in his case, infringed upon rights embodied in each. Five members of the bench rejected the
application of Article 19 (1)(g) to a preventive detention case, even though it might impinge upon the petitioners
right to move freely throughout the territory of India. This was done on several, differing, grounds, including the idea
that Article 19 and Article 21 function on different planes, as one is available only to citizens while the other to all
persons, and that protection under Article 19 ceases in a case of detention else all those imprisoned under the
Indian Penal Code would also have cause to challenge their imprisonment as being violative of their rights under
Article 19 . Fazal Ali dissented, holding that imprisonment necessarily cuts at the freedom guaranteed in Article 19
(1)(g) and should be open to judicial review.26
What Gopalan has been read to mean, however, is that each Article in Part III constitutes a self-contained code,
and this was the position of law left relatively undisturbed until R C Cooper v Union of India.27 While the decision in
R C Cooper had tremendous ramifications for the law in India, it is also an interesting example of a later judgement
defining the ratio of an earlier judgment, in this case, largely mistakenly. The majority judgment, written on behalf of
ten judges on the eleven judge bench, said:
The majority of the Court (Kania C.J., and Patanjali Sastri, Mahajan, Mukherjea& Das, JJ) held that Article 22 being
a complete code relating to preventive detention, the validity of an order of detention must be determined strictly
according to the terms and within the four corners of that Article.28
This is a peculiar statement, given that only one (Mahajan, J.) of the six judges in Gopalan conclusively held that
Article 22 was a self-contained code.29
R C Cooper (popularly called the Bank Nationalisation case), dealt with a challenge to an Ordinance nationalising
fourteen banks with the motive of serving better the needs of development of the economy.30 It was, at the first
instance, a case revolving around Article 31 (2) and the requirements of authority of law and compensation. The
Court, however, recognised the fact that there was also a clear violation of 19 (1)(g) and held that the fact of Article
31 (2) being relevant did not preclude a challenge under Article 19 . Though their construction of Gopalan was, to
some extent, a straw man, this reading of Part III of the Constitution, that the determinative test as to whether an
Article is attracted or not is the directness of effect (as articulated by Fazal Ali in Gopalan) and not whether the
legislation is directly related to the right or not went on to be used, and discussed, in several other cases, most
notably Sambhu Nath Sarkar v The State of West Bengal & Others31 and Haradhan Saha& Another v The State of
West Bengal & Others.32
Maneka Gandhi v Union of India
Following close at the heels of R C Cooper and the Emergency, Maneka Gandhi opened the doors to judicial
activism as we know it today. Decided by a seven-judge bench, with five judges delivering independent opinions,
Maneka Gandhi revisited Gopalan through an entirely new lens (coloured, of course, by recent political and legal
developments). The case involved the impounding of Maneka Gandhis passport, and that disallowed her from
travelling to West Germany. Beg, J.using due process and procedure established by law interchangeablydiscussed
the true import of the Article 21-Article 22 relationship as articulated in Gopalan:
Page 2 of 3
Even in Gopalans case, the majority of judges of this Court took the view that the ambit of personal liberty protected
by Article 21 is wide and comprehensive. It embraces both substantive rights to personal liberty and the procedure
provided for their deprivation. One can, however, say that no question of due process of law can really arise, apart
from procedural requirements of preventive detention laid down by Article 22, in a case such as the one this Court
considered in Gopalans case. The clear meaning of Article 22 is that the requirements of due process of law, in
cases of preventive detention, are satisfied by what is provided by Article 22 of the Constitution itself. This article
indicates the pattern of the procedure established by law for cases of preventive detention.33
Chandrachud, J. neatly responded to both, the issue of what procedure established by law requires and whether it
can be invoked along with other Articles in Part III:
The mere prescription of some kind of procedure cannot ever meet the mandate of Article 21 . The procedure
prescribed by law has to be fair, just and reasonable, not fanciful, oppressive or arbitrary. The question whether the
procedure prescribed by a law which curtails or takes away the personal liberty guaranteed by Article 21 is
reasonable or not has to be considered not in the abstract or on hypothetical considerations like the provision for a
full-dressed hearing as in a Courtroom trial, but in the context, primarily, of the purpose which the Act is intended to
achieve and of urgent situations which those who are charged with the duty of administering the Act may be called
upon to deal with. Secondly, even the fullest compliance with the requirements of Article 21 is not the journeys end
because, a law which prescribes fair and reasonable procedure for curtailing or taking away the personal liberty
guaranteed by Article 21 has still to meet a possible challenge under other provisions of the Constitution like, for
example, Articles 14 and 19.34
Bhagwati, J. argued for reasonableness to be read into procedure established by law on account of the effect of
Article 14 (right to equality) on Article 21, in oft quoted words:
Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. The principle of
reasonableness, which legally as well as philosophically, is an essential element of equality or non-arbitrariness
pervades Article 14 like a brooding omnipresence and the procedure contemplated by Article 21 must answer the
best of reasonableness in order to be in conformity with Article 14 . It must be right and just and fair and not
arbitrary, fanciful or oppressive; otherwise, it would be no procedure at all and the requirement of Article 21 would
not be satisfied.35
Interestingly, the Court engaged with Gopalan in detail, despite R C Cooper expressly overruling what it thought
was Gopalans ratio on the issue of overlapping rights. The majority quoted Fazal Ali, J. in order to buttress their
point, while also reinterpreting other judges opinions in Gopalan to arrive at the same resultson that specific point of
lawthat R C Cooper did.
While the courts have repeatedly held that due process is not applicable to Article 21, Maneka Gandhis
interpretation of procedure established by law effectively introduced the due process doctrine in India. Courts have,
since, read numerous rights and procedural safeguards into Article 21.36 Most recently, Selvi v State of Karnataka
openly stated that substantive due process was a guarantee under Article 21;37 a long distance traversed in the
sixty years since Gopalan was decided.
27 . AIR 1970 SC 564.
28 .Ibid, para 53.
29 .See on this point, H.M. Seervai, Constitutional Law of India, vol.2, (Delhi: Universal Law Publishing Co. Ltd, 1993)
p.980.
30 . From the long title of Ordinance 8 of 1969.
31 . AIR 1973 SC 1425 [LNIND 1973 SC 138].

Page 3 of 3
32 . AIR 1974 SC 2154 [LNIND 1974 SC 243].
36 .See for a brief overview of the development of law, Fali S Nariman, Fifty Years of Human Rights Protection in Indiathe
Record of Fifty Years of Constitutional Practice 12 Student Advocate (2000) p. 4.
37 . AIR 2010 SC 1974 [LNINDORD 2010 SC 207], para 4, 82.
End of Document
Conclusion
NS Bindra
Conclusion
Interpretation of statutes is an ongoing judicial exercise which stands incorporated in judicial decisions. The chapter
demonstrates that not all these acts of interpretation qualify as precedent. The chapter also brings home that there
is an interesting tension between the rhetoric and the reality of the doctrine. Thus even as Courts articulate the
doctrinal principles in pristine purity; their application of those principles is guided by individual perceptions. Thus
judicial decisions which drive home the difference between ratio and obiter drive home their point by quoting lines
from the dissenting judgment. This phenomenon of quoting from any part of the judgment continues along with
regular warnings alerting readers of judicial decisions not to read judgments like statutes. There are judgments
which attempt to use precedents as a mechanism to obtain institutional integrity but these efforts are thwarted by
other rulings that point out how the crusade to obtain institutional discipline strangleholds judicial discretion at sites
where it is required. The Apex Court has at one end demanded unqualified respect for all it declarations (whether
ratio or obiter); and at the other exhorted subordinate courts to read their decisions critically and analytically. The
Courts have used the strategy of precedent to construct generalized norms and have been challenged from within
for trenching into the legislative arena. This concluding part like part one of the book drives home the inextricable
relationship between judicial process and statutory interpretation. It is how judges believe that they act and how
they ought to act which determines how they undertake statutory interpretation.
End of Document
Appendix The General Clauses Act 1897
NS Bindra
Edition > APPENDIX
Appendix The General Clauses Act 1897
(No 10 of 1897)1
1 . For Statement of Objection and Reasons, see Gazette of India 1897, Pt V, p 38; for Report of the Select Committee,
see Gazette of India, Pt V, p 77, and for proceedings in Council see Gazette of India, Pt VI, pp 35, 40, 56 and 76.
This Act has been declared to be in force in the Santhal Parganas by the Santhal Parganas Settlement Regulation (3 of
1872) s 3; in Panth Piploda by the Panth Piploda Laws Regulation 1929 (1 of 1929), s 2; in Khondmals District by the
Khondmals Laws Regulation, 1936 (4 of 1936), s 3 and Schedule; and in the Angul District by the Angul Laws
Regulation 1936 (5 of 1936), s 3 and Schedule.
The Act has been partially extended to Berar by the Berar Laws Act, 1941 (4 of 1941) and to the new Provinces and Merged
States by the Marged States (Laws) Act 1949 (59 of 1949).
The Act has been extended to
Goa, Daman and Diu with modifications, by Regulation 12 of 1962, s 3 and Sch; Dadra and Nagar Haveli by Regulation 6 of
1963, s 2 and Sch I;
Pondicherry by Regulation 7 of 1963, s 3 and Sch I; and
Laccadive, Minicoy and Amindivi Islands by Regulation 8 of 1965, s 3 and Sch.
It has been amended in Assam by the Assam Commissioners Powers Distribution Act 1939 (Assam Act 1 of 1939)
End of Document
NS Bindra
Edition > APPENDIX
Appendix the General Clauses Act 1897 Appendix The General Clauses
Act 1897
An Act to consolidate and extend the General Clauses Act 1868 and 1887.
[11th March, 1897]
WHEREAS it is expedient to consolidate and extend the General Clauses Act s 1868 (1 of 1868) and 1887 (1 of 1887); It is
hereby enacted as follows:
Preliminary
1. Short title.
(1) This Act may be called the General Clauses Act 1897;2[***]
2. Repeal.
[Repealed by the Repealing and Amending Act 1903 [1 of 1903], Sec. 4 and Schedule III].
General Definitions
3[3. Definitions.
In this Act, and in all Central Acts and Regulations made after the commencement of this Act, unless there is anything repugnant
in the subject or context,
(1) abet, with its grammatical variations and cognate expressions, shall have the same meaning as in the Indian Penal
Code (45 of 1860);
(2) act, used with reference to an offence or a civil wrong, shall include a series of acts, and words which refer to acts
done extend also to illegal omissions;
(3) affidavit shall include affirmation and declaration in the case of persons by law allowed to affirm or declare instead of
swearing;
(4) barrister shall mean a barrister of England or Ireland, or a member of the Faculty of Advocates in Scotland;
(5) British India shall mean, as respects the period before the commencement of Part III of the Government of India Act,
1935, all territories and places within His Majestys dominions which were for the time being governed by His Majesty
through the Governor General of India or through any Governor or Officer subordinate to the Governor General of
India, and as respects any period after that the date and before the date of the establishment of the Dominion of India
means all territories for the time being comprised within the Governors Provinces and the Chief Commissioners
Provinces, except that a reference to British India in an India law passed or made before the commencement of Part III
of the Government of India Act, 1935, shall not include a reference to Berar;
(6) British possession shall mean any part of Her Majestys dominions exclusive of the United Kingdom, and where parts of
those dominions are under both a Central and a Local Legislature, all parts under the Central Legislature shall, for the
purpose of this definition, be deemed to be one British possession;
Page 2 of 13
(7) Central Act shall means an Act of Parliament, and shall include
(a) an Act of the Dominion Legislature or of the Indian Legislature passed before the commencement of the
Constitution, and
(b) an Act made before such commencement by the Governor General in Council or the Governor General, acting in
a legislative capacity;
(8) Central Government shall,
(a) in relation to anything done before the commencement of the Constitution, means the Governor General or the
Governor General in Council, as the case may be; and shall include,
(i) in relation to function entrusted under sub-section (1) of section 124 of the Government of India Act, 1935, to
the Government of a Province, the Provincial Government acting within the scope of the authority given to it
under that sub-section; and
(ii) in relation to the administration of a Chief Commissioners Province, the Chief Commissioner acting within the
scope of the authority given to him under sub-section (3) of section 94 of the said Act; and
(b) in relation to anything done or to be done after the commencement of the Constitution, mean the President; and
shall include,
(i) in relation to functions entrusted under clause (1) of article 258 of the Constitution, to the Government of a
State, the State Government acting within the scope of the authority given to it under that clause; 4[***]
(ii) in relation to the administration of a Part C State 5[before the commencement of the Constitution (Seventh
Amendment) Act, 1956], the Chief Commissioner or the Lieutenant-Governor or the Government of a
neighbouring State or other authority acting within the scope of the authority given to him or it under article
239 or article 243 of the Constitution, as the case may be; 6[and
(iii) in relation to the administration of a Union territory, the administrator thereof acting within the scope of the
authority given to him under article 239 of the Constitution];
(9) Chapter shall mean a Chapter of the Act or Regulation in which the word occurs;
(10) Chief Controlling Revenue Authority or Chief Revenue Authority shall mean
(a) in a State where there is a Board of Revenue, that Board;
(b) in a State where there is a Revenue Commissioner, that Commissioner;
(c) in Punjab, the Financial Commissioner; and
(d) elsewhere, such authority as, in relation to matters enumerated in List I in the Seventh Schedule to the
Constitution, the Central Government, and in relation to other matters, the State Government, may be notification
in the Official Gazette, appoint;
(11) Collector shall mean, in a Presidency-town, the Collector of Calcutta, Madras or Bombay, as the case may be, and
elsewhere the chief officer-in-charge of the revenue-administration of a district;
(12) Colony
(a) in any Central Act passed after the commencement of Part III of the Government of India Act, 1935, shall mean
any part of His Majestys dominions exclusive of the British Islands, the Dominions of India and Pakistan (and
before the establishment of those Dominions, British India), any Dominions as defined in the Statute of
Westminister, 1931, any Province or State forming part of any of the said Dominions, and British Burma; and
(b) in any Central Act passed before the commencement of Part III of the said Act, mean any part of His Majestys
dominions exclusive of the British Islands and of British India;
and in either case where parts of those dominionsare under both a Central and Local Legislature, all
parts under the Central Legislature shall, for the purposes of this definition, be deemed to be one
colony.
(13) commencement used with reference to an Act or Regulation, shall mean the day on which the Act or Regulation comes
into force;
(14) Commissioner shall mean the chief officer-in-charge of the revenue administration of a division;
(15) Constitution shall mean the Constitution of India;
(16) Consular officer shall include consul-general, consul, vice-consul, consular agent, pro-consul and any person for the
time being authorised to perform the duties of consul-general, consul, vice-consul or consular agent;
Page 3 of 13
(17) District Judge shall mean the Judge of a principal. Civil Court of original jurisdiction, but shall not include a High Court
in the exercise of its ordinary or extraordinary original civil jurisdiction;
(18) document shall include any matter written, expressed or described upon any substance by means of letters, figures or
marks, or by more than one of those means which is intended to be used, or which may be used, for the purpose of
recording that matter;
(19) enactment shall include a Regulation (as hereinafter defined) and any Regulation of the Bengal, Madras or Bombay
Code, and shall also include any provision contained in any Act or in any such Regulation as aforesaid:
(20) father, in the case of any one whose personal law permits adoption, shall include an adoptive father;
(21) financial year shall mean the year commencing on the first day of April;
(22) a thing shall be deemed to be done in good faith where it is in fact done honestly, whether it is done negligently or not;
(23) Government or the Government shall include both the Central Government and any State Government;
(24) Government securities shall mean securities of the Central Government or of any State Government, but in any Act or
Regulation made before the commencement of the Constitution shall not include securities of the Government of any
Part B state;
(25) High Court, used with reference to civil proceedings, shall mean the highest Civil Court of appeal (not including the
Supreme Court) in the part of India in which the Act or Regulation containing the expression operates;
(26) immovable property shall include land, benefits to arise out of land, and things attached to the earth, or permanently
fastened to anything attached to the earth;
(27) imprisonment shall mean imprisonment of either description as defined in the Indian Penal Code; (45 of 1860)
(28) India shall mean,
(a) as respects any period before the establishment of the Dominion of India, British India together with all territories
of Indian Rulers then under the suzerainty of His Majesty, all territories under the suzerainty of such an Indian
Ruler, and the tribal areas;
(b) as respects any period after the establishment of the Dominion of India and before the commencement of the
Dominion; and
(c) as respects any period after the commencement of the Constitution, all territories for the time being comprised in
the territory of India;
(29) Indian law shall mean any Act, Ordinance, Regulation, rule, 7[order, bye-law or other instrument] which before the
commencement of the Constitution had the force of law in any Province of India a part thereof, or thereafter has the
force of law in any Part A State or Part C State of Part thereof, but does not include any Act of Parliament of the United
Kingdom or any Order in Council, rule or other instrument made under such Act;
(30) Indian State shall mean any territory which the Central Government recognised as such a State before the
commencement of the Constitution, whether described as a State, an Estate, a Jagir or otherwise;
(31) local authority shall mean a municipal committee, district board, body of port Commissioners or other authority legally
entitled to, or entrusted by the Government with, the control or management of a municipal or local fund;
(32) Magistrate shall include every person exercising all or any of the powers of a Magistrate under the Code of Criminal
Procedure for the time being in force;
(33) master, used with reference to a ship, shall mean, any person (except a pilot or harbour-master) having for the time
being control or charge of the ship;
(34) merged territories shall mean the territories which by virtue of an order made under section 290A of the Government of
India Act, 1935, were immediately before the commencement of the Constitution being administered as if they formed
part of a Governors Province or as if they were a Chief Commissioners Province;
(35) month shall mean a month reckoned according to the British calendar
(36) movable property shall mean property of every description, except immovable property;
(37) oath shall include affirmation and declaration in the case of persons by law allowed to affirm or declare instead of
swearing;
(38) offence shall mean any act or omission made punishable by any law for the time being in force;
(39) official Gazette or Gazette shall mean the Gazette of India or the official Gazette of a State;
(40) Part shall mean a part of the Act or Regulation in which the word occurs;
(41) Part A State shall mean a State for the time being specified in Part A of the First Schedule to the Constitution, 8[as in
force before the Constitution (Seventh Amendment) Act, 1956,] Part B State shall mean a State for the time being
Page 4 of 13
specified in Part B of that Schedule and Part C State shall mean a State for the time being specified in Part C of that
Schedule or a territory for the time being administered by the President under the provisions of article 243 of the
Constitution;
(42) person shall include any company or association or body of individuals, whether incorporated or not;
(43) Political Agent shall mean,
(a) in relation to any territory outside India, the Principal Officer, by whatever name called, representing the Central
Government in such territory; and
(b) in relation to any territory which India to which the Act or Regulation containing the expression does not extend,
any officer appointed by the Central Government to exercise all o any of the powers of a Political Agent under that
Act or Regulation;
(44) Presidency-town shall mean the local limits for the time being of ordinary original civil jurisdiction of the High Court of
Judicature at Calcutta, Madras or Bombay, as the case may be;
(45) Province shall mean a Presidency, a Governors Province, a Lieutenant-Governors Province or a Chief Commissioners
Province;
(46) Provincial Act shall mean an Act made by the Governor in Council, Lieutenant Governor in Council or Chief
Commissioners in Council of a Province under any of the Indian Councils Act, or an Act made by the Provincial
Legislature or Governor of a Province or the Coorg Legislative Council under the Government of India Act, 1935;
(47) Provincial Government shall mean, as respect anything done before the commencement of the Constitution, the
authority or person authorised at the relevant date t administer executive Government in the Province in question;
(48) public nuisance shall mean a public nuisance as defined in the Indian Penal Code;
(49) registered, used with reference to a document, shall mean registered in 9[India] under the law for the time being in
force for the registration of documents;
(50) Regulation shall mean a Regulation made by the President 10[under article 240 of the Constitution and shall include a
Regulation made by the President under article 243 thereof and] a Regulation made by the Central Government under
the Government of India Act, 1870, or the Government of India Act, 1915, or the Government of India Act, 1935;
(51) rule shall mean a rule made in exercise of a power conferred by any enactment, and shall include a Regulation made
as a rule under any enactment;
(52) schedule shall mean a schedule to the Act or Regulation in which the word occurs;
(53) Scheduled District shall mean a Scheduled District as defined in the Scheduled Districts Act, 1874;
(54) section shall mean a section of the Act or Regulation in which the word occurs;
(55) ship shall include every description of vessel used in navigation not exclusively propelled by oars;
(56) sign, with its grammatical variations and cognate expressions, shall, with reference to a person who is unable to write
his name, include mark, with its grammatical variations and cognate expressions;
(57) son, in the case of any one whose personal law permits adoption, shall include an adopted son;
11[(58) State
(a) as respects any period before the commencement of the Constitution (Seventh Amendment) Act, 1956, shall
mean a Part A State, a Part B State or a Part C State; and
(b) as respects any period after such commencement, shall mean a State specified in the First Schedule to the
Constitution and shall include a Union territory J;
(59) State Act shall mean an Act passed by the Legislature of a State established or continued by the Constitution;
(60) State Government,
(a) as respects anything done before the commencement of the Constitution, shall mean, in a Part A State, the
Provincial Government of the corresponding Province, in a Part B State, the authority or person authorised at the
relevant date to exercise executive government in the corresponding Acceding State, and in a Part C State, the
Central Government; 12[***]
(b) as respects anything done 13[after the commencement of the Constitution and before the commencement of the
Constitution (Seventh Amendment) Act, 1956], shall mean, in a Part A State, the Governor, in a Part B State, the
Rajpramukh, and in a Part C State, the Central Government;
Page 5 of 13
14[(c) as respects anything done or to be done after the commencement of the Constitution (Seventh
Amendment) Act, 1956, shall mean, in a State, the Governor, and a Union territory, the Central Government;
and shall, in relation to functions entrusted under article 258A of the Constitution to the Government of India,
include the Central Government acting within the scope of the authority given to it under that article;
(61) sub-section shall mean a sub-section of the section in which the word occurs;
(62) swear, with its grammatical variations and cognate expressions, shall include affirming and declaring in the case of
persons by law allowed to affirm or declare instead of swearing;
15 [62A) Union territory shall mean any Union territory specified in the First Schedule to the Constitution and shall
include any other territory comprised within the territory of India but not specified in that Schedule;]
(63) vessel shall include any ship or boat or any other description of vessel used in navigation;
(64) will shall include codicil and every writing making a voluntary posthumous disposition of property;
(65) expressions referring to writing shall be construed as including references to printing, lithography, photography and
other modes of representing or reproducing words in a visible form; and
(66) year shall mean a year reckoned according to the British calendar.]
4. Application of foregoing definitions to previous enactments.
(1) The definitions in section 3 of the following words and expressions, that is to say, affidavit, barrister, 16[***] District
Judge, father, 17[***], 18[***], 19[***] immovable property, imprisonment, 20[***] [Magistrate, month, movable property
oath, person, section, son, swear, will, and year apply also, unless there is anything repugnant in the subject or
context, to all 21[Central Acts] made after the third day of January, 1868, and to all Regulations made on or after the
fourteenth day of January, 1887.
(2) The definitions in the said section of the following words and expressions, that is to say, abet, Chapter,
commencement, financial year, local authority, master, offence, part, public nuisance, registered, schedule, ship, sign,
sub-section and writing apply also, unless there is anything repugnant in the subject or context, to all 22[Central Acts]
and Regulations made on or after the fourteenth day of January, 1887.
23 [4A. Application of certain definitions to Indian Laws.
(1) The definitions in section 3 of the expressions British India, Central Act, Central Government, Chief Controlling
Revenue Authority, Chief Revenue Authority, Constitution, Gazette, Government, Government securities, High Court,
India, Indian law, Indian State, merged territories, Official Gazette, Part A State, Part B State, Part C State, Provincial
Government, State and State Government shall apply, unless there is anything repugnant in the subject or context, to
all Indian laws.
(2) In any Indian law, references, by whatever form of words, to revenues of the Central Government or of any State
Government shall, on and from the first day of April, 1950, be construed as references to the Consolidated Fund of
India or the Consolidated Fund of the State, as the case may be.]
General Rules of Construction
5. Coming into operation of enactments.24

[(1) Where any Central Act is not expressed to come into operation on a particular day, then it shall come into operation on the
day on which it receives the assent,
(a) in the case of a Central Act made before the commencement of the Constitution, of the Governor-General, and
(b) in the case of an Act of Parliament, of the President.]
(c) 25[* * *]
Page 6 of 13
(d) Unless the contrary is expressed a 26[Central Act] or Regulation shall be construed as coming into operation
immediately on the expiration of the day preceding its commencement.
27 [5A. Coming into operation of Governor-Generals Act.

[Rep by the AO 1947].
6. Effect of repeal.
Where this Act, or any 28[Central Act] or Regulation made after the commencement of this Act, repeals any enactment hitherto
made or hereafter to be made, then, unless a different intention appears, the repeal shall not
(a) revive anything not in force or existing at the time at which the repeal takes effect; or
(b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or
(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or
(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against may enactment so
repealed; or
(e) 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, continued or enforced, and any such penalty,
forefeiture or punishment may be imposed as if the repealing Act or Regulation has not been passed.
29 [6A. Repeal of Act making textual amendment in Act or Regulation.

Where any 30[Central Act] or Regulation made after the commencement of this Act repeals any enactment by which the text of
any 31[Central Act] or Regulation was amended by the express omission, insertion or substitution of any matter, then, unless a
different intention appears, the repeal shall not affect the continuance of any such amendment made by the enactment so
repealed and in operation at the time of such repeal.]
7. Revival of repealed enactments.
(1) In any 32[Central Act] or Regulation made after the commencement of this Act, it shall be necessary, for the purpose of
reviving, either wholly or partially, any enactment wholly or partially repealed, expressed to state that purpose.
(2) This section applies also to all 33[Central Acts] made after the third day of January, 1868, and to all Regulation made
on or after the fourteenth day of January, 1887.
8. Construction of reference to repealed enactment.

34 [(1) Where this Act, or any 35[Central Act] or Regulation made after the commencement of this Act, repeals and re-enacts
with or without modification, any provision of a former enactment, then references in any other enactment or in any instrument to
the provision so repealed shall, unless a different intention appears, be construed as references to the provision so re-enacted.
36 [(2)] 37[Where before the fifteenth day of August, 1947, any Act of Parliament of the United Kingdom repealed and re-
enacted], with or without modification, any provision of a former enactment, then references in any 38[Central Act] or in any
Regulation or instrument to the provision so repealed shall, unless a different intention appears, be construed as references to
the provision so re-enacted.
Page 7 of 13
9. Commencement and termination of time.
(1) In any 39[Central Act] or Regulation made after the commencement of this Act, it shall be sufficient, for the purpose of
excluding the first in a series of days or any other period of time, to use the word from, and, for the purpose of including
the last in a series of days or any other period of time, to use the word to.
(2) This section applies also to all 40[Central Acts] made after the third day of January, 1868, and to all Regulations made
10. Computation of time.
(1) Where, by any 41[Central Act] or Regulation made after the commencement of this Act, any act or proceeding is
directed or allowed to be done or taken in any Court or office on a certain day or within a prescribed period, then, if the
Court or office is closed on that day or the last day of the prescribed period, the act or proceeding shall be considered
as done or taken in due time if it is done or take on the next day afterwards on which the Court or office is open:
Provided that nothing in this section shall apply to any act or proceeding to which the 42[Indian Limitation Act,
1877 (15 of 1877)], applies.
(2) This section applies also to all 43[Central Acts] and Regulations made on or after the fourteenth day of January, 1887.
11. Measurement of distances.

In the measurement of any distance, for the purpose of any 44[Central Act] or Regulation made after the commencement of this
Act, that distance shall, unless different intention appears, be measured in a straight line on a horizontal plane.
12. Duty to be taken pro rata in enactments.

Where, by any enactment now in force or hereafter to be in force, any duty of customs or excise, or excise, or in the nature
thereof, is leviable on any given quantity, by weight, measure or value of any goods or merchandise, then a like duty is leviable
according to the same rate or any greater or less quantity.
13. Gender and number.

In all 45[Central Acts] and Regulations, unless there is anything repugnant in the subject or context,
(1) words importing the masculine gender shall be taken to include females; and
(2) words in the singular shall include the plural, and vice versa.
46 13A. References to the Sovereign.

[Rep by the AO 1950.]
Powers and Functionaries
14. Powers conferred to be exercisable from time to time.

Page 8 of 13
(1) Where, by any 47[Central Act] or Regulation made after the commencement of this Act, any power is conferred 48[***],
then 49[unless a different intention appears] that power may be exercised from time to time as occasion requires.
(2) This section applies also to all 50[Central Acts] and Regulations made on or after the fourteenth day of January, 1887.
15. Power to appoint to include power to appoint ex-officio.

Where, by any 51[Central Act] or Regulation, a power to appoint any person to fill any office or execute any function is conferred,
then, unless it is otherwise expressly provided, any such appointment, if it is made after the commencement of this Act, may be
made either by name or by virtue of office.
16. Power to appoint to include power to suspend or dismiss.

Where, by any 52[Central Act] or Regulation, a power to make any appointment is conferred, then, unless a different intention
appears, the authority having 53[for the time being] power to make the appointment shall also have power to suspend or dismiss
any person appointed 54[whether by itself or any other authority] in exercise of that power.
17. Substitution of functionaries.
indicating the application of a law to every person or number of persons for the time being executing the functions of an
office, to mention the official title of the officer at present executing the functions, or that of the officer by whom the
functions are commonly executed.
18. Successors.
indicating the relation of a law to the successors of any functionaries or of corporations having perpetual succession, to
express its relation to the functionaries or corporations.
19. Official Chiefs and subordinates.
expressing that a law relative to the chief or superior of an office shall apply to the duputies or subordinates lawfully
performing the duties of that office in the place of their superior, to prescribe the duty of the superior.
Provision as to Orders, Rules, etc; Made under Enactments

Page 9 of 13
20. Construction of orders, etc; issued under enactments.

Where, by any 61[Central Act] or Regulation, a power to issue any 62[notification], order, scheme, rule, form, or bye-law is
conferred, then expressions used in the 63[notification], order, scheme, rule, form or bye-law, if it is made after the
commencement of this Act, shall, unless there is anything repugnant in the subject or context, have the same respective
meanings as in the Act or Regulation conferring the power.
21. Power to issue, to include power to add to, amend, vary or rescind
notifications, orders, rules or bye-laws.
Where, by any 64[Central Act] or Regulations a power to 65[tissue notifications,] orders, rules or bye-laws is conferred, then that
power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any), to add to, amend,
vary or rescind any 66[notifications,] orders, rules or bye-laws so 67[issued].
22. Making of rules or bye-laws and issuing of orders between passing and
commencement of enactment.
Where, by any 68[Central Act] or Regulation which is not to come into force immediately, on the passing thereof, a power is
conferred to make rules or bye-laws, or to issue orders with respect to the application of the Act or Regulation, or with respect to
the establishment of any Court or office or the appointment of any Judge or officer thereunder, or with respect to the person by
whom, or the time when, or the place where, or the manner in which, or the fees for which, anything is to be done under, the Act
or Regulation, then that power may be exercised at any time after the passing of the Act or Regulation; but rules, bye-laws or
orders so made or issued shall not take effect till the commencement of the Act or Regulation.
23. Provisions applicable to making of rules or bye-laws after previous

publication.
Where, by any 69[Central Act] or Regulation, a power to make rules or bye-laws is expressed to be given subject to the
condition of the rules or bye-laws being made after previous publication, then the following provisions shall apply, namely:
(1) the authority having power to make the rules or bye-laws shall, before making them, publish a draft of the proposed
rules or bye-laws for the information of persons likely to be affected thereby;
(2) the publication shall be made in such manner as that authority deems to be sufficient, or, if the condition with respect to
previous publication so requires, in such manner as the 70[Government concerned] prescribes;
(3) there shall be published with the draft a notice specifying a date on or after which the draft will be taken into
consideration;
(4) the authority having power to make the rules or bye-laws, and, where the rules or bye-laws are to be made with the
sanction, approval or concurrence of another authority, that authority also, shall consider any objection or suggestion
which may be received by the authority having power to make the rules or bye-laws from any person with respect to
the draft before the date so specified;
the publication in the 71[Official Gazette] of a rule or bye-law purporting to have been made in exercise of a power
to make rules or bye-laws after previous publication shall be conclusive proof that the rule or bye-law has been
duly made.
24. Continuation of orders, etc; issued under enactments repealed and re-
enacted.
Page 10 of 13
Where any 72[Central Act] or Regulation, is, after the commencement of this Act, repealed and re-enacted with or without
modification, then, unless it is otherwise expressly provided any 73[appointment notification,] order, scheme, rule, form or bye-
law, 74[made or] issued under the repealed Act or Regulation, shall, so far as it is not inconsistent with the provisions re-
enacted, continue in force, and be deemed to have been 75[made or] issued under the provisions so re-enacted, unless and
until it is superseded by any 76[appointment, notification,] order, scheme, rule, form or bye-law, 77[made or] issued under the
provisions so re-enacted 78[and when any 79[Central Act] or Regulation, which, by a notification under section 5 or 5A of the 80
Scheduled Districts Act, 1874 (14 of 1874), or any like law, has been extended to any local area, has, by a subsequent
notification, been withdrawn from and re-extended to such area or any part thereof, the provisions of such Act or Regulation
shall be deemed to have been repealed and re-enacted in such area or part within the meaning of this Section].
Miscellaneous
25. Recovery of fines.

Sections 63 to 70 of the Indian Penal Code (45 of 1860) and the provisions of the81Code of Criminal Procedure for the time
being in force in relation to the issue and the execution of warrants for the levy of fines shall apply to all fines imposed under any
Act, Regulation, rule or bye-law, unless the Act, Regulation, rule or bye-law contains an express provision to the contrary.
26. Provisions as to offences punishable under two or more enactments.

Where an act or omission constitutes an offence under two or more enactments, then the offender shall be liable to be
prosecuted and punished under either or any of those enactments, but shall not be liable to be punished twice for the same
offence.
27. Meaning of service by post.

Where any 82[Central Act] or Regulation made after the commencement of this Act authorizes or requires any document to be
served by post, whether the expression serve or either of the expressions give or send or any other expression is used, then,
unless a different intention appears, the service shall be deemed to be effected by properly addressing, prepaying and posting
by registered post, a letter containing the document, and, unless the contrary is proved, to have been effected at the time at
which the letter would be delivered in the ordinary course of post.
28. Citation of enactments.
(1) In any 83[Central Act] or Regulation, and in any rule, bye-law, instrument or document, made under, or with reference
to any such Act or Regulation, any enactment may be cited by reference to the title or short title (if any) conferred
thereon or by reference to the number and year thereof, and any provision in an enactment may be cited by reference
to the section or sub-section of the enactment in which the provision is contained.
(2) In this Act and in any 84[Central Act] or Regulation made after the commencement of this Act, a description or citation
of a portion of another enactment shall, unless a different intention appears, be construed as including the word,
section or other part mentioned or referred to as forming the beginning and as forming the end of the portion comprised
in the description or citation.
29. Saving for previous enactments, rules and bye-laws.

The provisions of this Act respecting me construction of Acts, Regulations, rules or bye-laws made after the commencement of
this Act shall not Affect the construction of any Act, Regulation, rule or bye-law made before the commencement of this Act,
although the Act, Regulation, rule or bye-law is continued or amended by an Act, Regulation, rule or bye-law made after the
commencement of this Act.
85[30. Application of Act to Ordinances.

Page 11 of 13
In this Act, the expression 86[Central Act], wherever it occurs, except in section 5 and the word Act in 87[clauses (9), (13), (25),
(40), (43), (52) and (54) of section 3 and in section 25 shall be deemed to include an Ordinance made and promulgated by the
Governor-General under section 23 of the Indian Councils Act, 1861 (24 and 25 Vict, c 67) 88[or section 72 of the Government
of India Act, 1915, (5 and 6 Geo, V, c, 61) 89[or section 4290[* * *] of the Government of India Act, 1935] (26 Geo V c 2) 91[and
an Ordinance promulgated by the President under article 123 of the Constitution.]
92[30A. Application of Act to Acts made by the Governor-General.

[Rep by the AO 1937].
93[31. Construction of references to Local Government of a Province.

[Rep by the AO 1937.]
THE SCHEDULE.Enactments repealed.

[Rep by the Repealing and Amending Act, 1903 (1 of 1903), sec 4 and Sch. III].
2 . The word and in sub-s (1) and sub-s (2) repealed by Act 10 of 1914, s 3 and Sch II.
3 . Substituted by the AO 1950, for the former Section.
4 . The word and omitted by the Adaptation of Laws (No 1) Order 1956.
5 . Inserted by the Adaptation of Laws Order (No 1) Order 1956.
6 . Ibid.
7 . Substituted by the Adaptation of Laws (Amendment) Order 1950, for order or bye-law.
8 . Inserted by the Adaptation of Laws (No 1) Order 1956.
9 . Substituted by the Adaptation of Laws (No 1) Order, 1956 for a Part A State or a Part C State.
10 . Substituted by the Adaptation of Laws (No 1) Order 1956, for under article 243 of the Constitution, and shall include.
11 . Substituted by the Adoption of Laws (No 1) Order 1956 for the farmer clause (58).
12 . The word and omitted by the Adaptation of Laws (No 1) Order, 1956.
13 . Substituted by the Adaptation of Laws (No 1) Order, 1956, for or to be done after the commencement of the
Constitution.
14 . Inserted by the Adaptation of Laws (No 1) Order, 1956.
15 . Inserted by the Adaptation of Laws (No 1) Order 1956.
16 . The words British India, Government of India, High Court, and Local Government repealed by the AO 1937.
17 . Ibid.
18 . The words Her Majesty or the Queen repealed by Act 18 of 1919; s 3 and Sch II.
19 . The words British India, Government of India, High Court, and Local Government rep by the AO 1937.
20 . Iid
21 . Substituted by the AO 1937, for Acts of the Governor-General in Council.
22 . Ibid.
23 . Substituted by the AO 1950, for the former section which was inserted by the AO 1937.
24 . Substituted by the AO 1950, for the former sub-section.
Page 12 of 13
25 . Sub-section (2) omitted by the AO 1950.

26 . Substituted by the AO 1937, for Act of the Governor General in Council.
27 . Inserted by the AO 1937.
29 . Inserted by Act 19 of 1936, s 2.
31 . Ibid.
32 . Ibid.
33 . Ibid.
34 . The original s 8 was renumbered as sub-s (1) of that section by Act 18 of 1919, s 2 and Sch I.
35 . Substituted by the AO 1937, for Acts of the Governor General in Council.
36 . Inserted by Act 18 of 1919, s 2 and Sch I.
37 . Substituted by the AO 1950, for Where any Act of Parliament repeals and re-enacts.
40 . Substituted by the AO 1937, Acts of the Governor General in Council.
41 . Ibid.
42 . The Limitation Act 1963 (36 of 1936).
43 . Substituted by the AO 1937, for Act of the Governor-General in Council.
44 . Ibid.
45 . Ibid.
48 . The words on the Government omitted by Act 18 of 1919, s 2 and Sch I.
51 . Ibid.
53 . Substituted by Act 18 of 1928, s 2 and Sch I, for by it.
54 . Ibid.
56 . Ibid.
57 . Ibid.
59 . Ibid.
62 . Inserted by Act 1 of 1903, s 3 and Sch II.
63 . Ibid.
65 . Substituted by Act 1 of 1903, s 3 and Sch II, for make.
Page 13 of 13

68 . Ibid.
70 . Substituted by the AO 1950, for Central Government or the Provincial Government.
71 . Substituted by the AO 1937, for Gazette.
74 . Ibid.
75 . Ibid.
76 . Ibid.
77 . Ibid.
80 . Repealed by the AO 1937.
81 . The Code of Criminal Procedure 1973 (2 of 1974).
82 . Substituted by AO 1937, for Act of the Governor-General in Council.
83 . Ibid.
84 . Ibid.
87 . Substituted by the AO 1950, for cll (9), (12), (38), (48) and (50).
88 . Inserted by the Act 24 of 1917, s 2 and Sch I.
89 . Inserted by the AO 1937.
90 . The words and figures or Section 43 omitted by the AO 1947.
91 . Added by AO 1950.
End of Document

N S Bindras Interpretation of Statutes

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Date and Time: Wednesday 4 May 2022 10:14:00 AM IST

Job Number: 170325626

2. Lawmaking is the domain of the Legislature

3. Cases illustrating various Interpretative Techniques

4. Limits on the judiciary while performing the interpretative role

5. Interpretation as Complementary Law Making

6. Reconstructing and Constructing the Law

10. What is Delegated Legislation?

11. Limits on Delegated Legislation and Excess Delegation

12. Scope of Courts Scrutiny in Delegated Legislation

13. Forms of Subordinate Legislation

14. Validity of Rules, Regulations and Bye-laws

19. Repugnancy between the Parent and Delegated Legislation

20. Severability in Delegated Legislation

21. Doctrine of Implied Powers

22. Implied Obligations

26. Nature of Executive Power

27. Policy Making by the Executive

28. Justiciability of Powers Conferred on the Executive under the Constitution

29. Judicial Appointments

30. Supplementing the Executive

33. Statutes are Presumed to be Valid

34. Statutes are Territorial in Operation

35. Statutes are Presumed to be in Conformity with International Law

36. Legislature does not commit a Mistake

40. No Alternation in Law is Presumed

41. Presumption in Case of Re-Enactment

43. Vested Rights are Preserved

44. Jurisdiction of Court presumed to not be excluded

45. Presumption against Retrospectivity

49. Text of the Statute and its Significance

50. Parts of Statutes

51. Title of the Statute

52. Title of a Chapter

54. Interpretation Clause

56. Punctuations and Brackets

58. Proviso, Exception, Saving Clause

66. Literal Rule of Interpretation and Golden Rule of Interpretation3

67. Illustrations of the Literal Rule

68. Golden Rule of Interpretation

69. Mischief Rule of Interpretation

71. Strict and Liberal Construction 60

72. Strict Interpretation

74. Non-Interpretive Considerations

75. Presumption of Fairness and Hardship

80. Statement of Objects and Reasons

81. Words in Statutes in Pari Materia

82. Words Previously Judicially Interpreted

83. Technical Meaning

85. Draftsmans Errors

86. Noscitur a sociis

87. Reddendo Singula Singulis

88. Ejusdem Generis

91. Affirmative and Negative Words

95. Statutes Pertaining to Official Action

98. Competence to Enact Retrospective Laws

99. Applicability of the Rule to Substantive Rights

100. Rights Accrued before Operation of Statute

Chapter 1 Law Making Roles of the Legislature and the Judiciary

Lawmaking is the domain of the Legislature

Thus Tindal C.J., unequivocally asserted in the Sussex Peerage case:26

5 . [1951] 2 All E.R. 839 : [1952] A.C. 189.

7 . AIR 1935 Cal 316, p 317, (1935) ILR 62 Cal 749.

9 . AIR 1950 Cal 179 [LNIND 1949 CAL 82].