INTERPRETATION OF STATUTES

V SEMESTER

No Particulars
UNIT – I
1 Basic Principles Guiding rules
2 Internal Aids to construction
UNIT – II
3 External aids to construction
UNIT – III
4 Subsidiary Rules
5 Operation of statutes
6 Expiry and repeal of statutes
UNIT – IV
7 Statutes affecting the state
8 Statutes affecting the jurisdiction of courts
9 Construction of taxing statute and evasion and states.
10 Remedial and penal state.
UNIT – V
11 Principles of Legislation

UNIT – I
1.1 INTRODUCTION

Interpretation is the primary function of a court. The court interprets the

legislature whenever a dispute come before it. Since the will of the legislature is
expressed generally in the form of a statute, the prime concern of the court is to
find out the intention of the legislature in the language used by the legislature in
the statute. The court is not expected to interpret arbitrarilyand consequently
there have to be certain principles which have evolved out of the continuous
exercise by the courts. These principles are sometimes called rules of
interpretation.
The words interpretation and construction are generally used
synonymously even though jurisprudentially they are perhaps different.
Interpretation means the art of finding out the true sense of an enactment by
giving the words their natural and ordinary meaning whereas construction means
drawing conclusions on the basis of the true spirit of the enactment even though
the same does not appear if the words used in the enactment are given their
natural meaning.
 A statute is the will of the legislature. It may have the following
particulars:
1. Short title.
2. Long title.
3. Preamble.
4. Marginal notes.
5. Headings of a group of sections or of individual sections.
6. Definition of interpretation clauses.
7. Provisos.
8. Illustrations.
9. Exceptions and saving clauses.
10. Explanations.
11. Schedules.
12. Punctuation.

1.2 CLASSIFICATION OF STATUTES

A statute may generally be classified with reference to its duration, method,

object, and extent of application.

A. Classification with reference to duration

Such a mode classifies a statute as:
1. Temporary statute.
2. Permanent statute.
A temporary statute is one where its period of operation or validity has
been fixed by the statute itself. Such an Act continues in force, unless repealed
earlier, until the time so fixed. After the expiry of the Act, if the legislature
whishes to continue it, a new enactment is required. The Finance Act is a
temporary Act and is required to be passed every year. A permanent statute is
one where no such period has been mentioned but this does not make the statute
unchangeable; such a statute may be amended or replaced by another Act.

B. Classification with reference to method

Such a mode classifies a statute as:
1. Mandatory, imperative or obligatory statute.
2. Directory or permissive stature.
A mandatory statute is one which compels performance of certain things
or compels that a certain thing must be done in a certain manner or form. A
directory statute merely directs or permits a thing to be done without compelling
its performance.

C. Classification with reference to object

A stature may be classified with reference to its object as:

1. Codifying statute.
 2. Consolidating statute.
3. Declaratory statute.
4. Remedial statute.
5. Enabling statute.
6. Disabling statute.
7. Penal statute.
8. Taxing statute.
9. Explanatory statute.
10. Amending statute.
11. Repealing statute.
12. Curative or validating statute.

1. Codifying statute
A codifying statute is one which codifies the law, or in other words,
which purports to state exhaustively the whole of the law upon a specific subject.
Ex:-The Hindu Succession Act, 1956 is a codifying statute with respect to
intestate succession among Hindus.

2. Consolidating statute
A consolidating statute is one which consolidates the law on a
particular subject at one place; it collects all statutory enactments on a specific
subject and gives them the shape of one statute with minor amendments, if
necessary. Ex:- In India, the Code of Criminal Procedure, 1974 is consolidating
statute relating to criminal procedure.

3. Declaratory stature
A declaratory statute is a statute to remove doubts either in the
common law or in the statutory law. Passing of a declaratory statute becomes
desirable when certain expressions in common law or statutes are being
misunderstood. Ex:-In India, the Income Tax (Amendment) Act, 1985 which
added explanation 2 to Section 40 of the Income Tax Act, 1961 and the Finance
Act, 1987 amending the definition of "Owner of house property" in Section 27
are declaratory Acts.

4. Remedial statute
A remedial statute is one whereby a new favour or a new remedy is
conferred. The main object of passing such a statute is to make improvements in
mistakes in the former law. Some illustrations of remedial statutes are the
Maternity Benefits Act, 1961 and the Workmen's compensation Act, 1923.

5. Enabling statute
An enabling statute is one which enlarges the common law where it is
narrow. It makes doing of something lawful which would not be otherwise
 lawful. By an enabling Act the legislature enables something to be done. It
empowers at the same time, by necessary implication, to do the indispensable
things for carrying out the object of the legislation.

6. Disabling statute
A disabling statute is one which restricts or cuts down a right conferred
by the common law. An Act restraining a common law right is a disabling Act.

7. Penal stature
A penal statute is one which punishes certain acts or wrongs. Such a
statute may be in the form of a comprehensive criminal code or a large number
of sections providing punishments for different wrongs. Some instances of such
statutes are the Indian Penal Code, Arms Act, 1959, Prevention of Food
Adulteration Act, 1954 etc.

8. Taxing statute
A taxing statute is one which imposes taxes on income or certain other
kinds of transaction. It may be in the form of income tax, wealth tax, sales tax,
gifts taxtetc.

9. Explanatory statute
An explanatory statute is one which explains a law. Such a statute is
generally enacted with a view to supply an apparent omission or to clarify
ambiguity as to the meaning of an expression used in a previous statute.

10. Amending statute

An amending statute is one which makes an addition to or operates to
change the original law so as to effect an improvement therein or to more
effectively carry out the purposes for which the original law was passed.

11. Repealing statute

A repealing statute is one which repeals an earlier statute. This
revocation or termination may be by express or explicit language of the statute
or it may be by necessary implication also.
12. Curative or validating statute
A Curative or validating statute is one which is passed to cure defects
in prior law, or to validate legal proceedings, instruments or acts of public and
private administrative authorities which in the absence of such an Act would be
void for want of conformity with existing legal requirements, but which would
have been valid if the statute had so provided at the time of enacting. The purpose
 of a validating statue is to remove the cases of ineffectiveness or invalidity of
actions or proceedings which are validated by a legislative measure.

D. Classification with reference to the extent of application

Such a mode classifies a statute as:
1. Public statute.
2. Private statute.
A public statute is one which relates to a matter of public policy, such a
statute may be general, local or personal in nature. A private statute concerns
with maters which are individual in nature or is related to a body which has no
public consequence.
1.3 THE GENERAL PRINCIPLES OF INTERPRETATION
There are certain general principles of interpretation which have been applied by
Courts from time to time. These are as under:
i. The literal or grammatical interpretation.
ii. The mischief rule.
iii. The golden rule.
iv. Harmonious construction.
v. The statute should be read as a whole.
vi. Construction Ut Res MagisValeat Quam Pereat
vii. Strict construction
viii. Beneficent construction
ix. Intention of the legislature

i. The literal or grammatical interpretation

The first principle of interpretation is the literal or grammatical interpretation

which means that the words of an enactment are to be given their ordinary and natural
meaning, and if such meaning is clear and unambiguous, effect should be given to a
provision of a statute whatever may be the consequences. The basis of this principle is
that the object of all interpretations being to know what the legislature intended,
whatever was the intention of the legislature has been expressed by it through words
which are to be interpreted according to the rules of grammar. This has been called the
safest rule because the legislature'sintention can be deduced only from the language
through which it has expressed itself. If the language of a statute is plain, the only duty
of the court is to give effect to it and the court has no business to look into the
consequences of such interpretation. The court is under an obligation to expound the
law as it exists and leave the remedy to the legislature if harsh conclusions result from
such exposition. Similarly, the court should give technical meaning to a technical word.
The words of a statute are first understood in their natural, ordinary or popular sense
and phrases and sentences are construed according to their grammatical meaning, unless
that leads to some absurdity or unless there is something in the context or in the object
of the statute to suggest the contrary. The epithets 'natural', 'ordinary' , 'literal',
'grammatical', and 'popular' are employed almost interchangeably, but their
indiscriminate use leads to some confusion, and probably, the term 'primary' is
preferable to any of them, if it be remembered that the primary meaning of a word varies
with its setting or context and with the subject-matter to which it is applied; for reference
to the abstract meaning of words, if there be any such thing, is of little value in
interpreting statutes. The cardinal rule for the construction of Act of Parliament is that
they should be construed according to the intention expressed in the Act themselves.

In S.A.Venkatataman V. Union of India, an inquiry had been made against the

appellant under the Public Service Enquiries Act. On receiving the report of the Enquiry
Commissioner, the appellant was given an opportunity under Article 311 (2) of the
Constitution to show cause, and was ultimately dismissed. Later on, he was charged
under Sections 161 and 165, Indian Penal Code and Section 5 (2), Prevention of
Curruption Act, 1947. On the question whether his trial was in violation of Article 20
(2) of the Constitution, the Supreme Court held that proceeding before the
Commissioner was not prosecution and, therefore, his trial was legal.

ii. The Mischief Rule

The mischief rule of interpretation originated in Heydon's case, in 1584. In this

case, the Barons of the Exchequer resolved "that for the sure and true interpretation of
all statutes in general (be they penal or beneficial, restrictive or enlarging of the common
law) four things are to be discerned and considered; (1st ) What was the common law
before the making of the Act. (2nd) What was the mischief and defect for which the
common law did not provide. (3rd) What remedy the Parliament had resolved and
appointed to cure the disease of the commonwealth. And, (4th) 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, and to suppress subtle inventions
and evasions for continuance of the mischief, and pro private commodo, and to add
force and life to the cure are remedy, according to the true intent of the makers of the
Act, pro bono public. This principle is also known as the rule of purposive construction.
It has been said in Macmillan v. Dent that in interpreting an Act of Parliament you are
entitled, and in many cases bound, to look to the state of the law at the date of the
passing of the Act, not only the common law but the law as it then stood under previous
statutes, in order to properly interpret the statute in question. Thus, the mischief rule as
it was originally laid down has now been modified to the extent that not only the
common law but also the statute law prior to the Act being interpreted needs to be
looked into.

iii. The Golden Rule

The golden rule is a modification of the principle of grammatical interpretation.

It says that ordinarily the court must find out the intention of the legislature from the
words used in the statute by giving them their natural meaning but if this leads to
absurdity. Repugnance, inconvenience, hardship, injustice or evasion, the Court must
modify the meaning to such an extent and no further as would prevent such a
consequence. On the face of it, this rule solves all problems and is; therefore, known as
the golden rule. Further, since the literal meaning is modified to some extent, this
approach is called the modifying method of interpretation. This rule, therefore, suggests
that consequences or effects of an interpretation deserve a lot more importance because
these are clues to the true meaning of alegislation. There is a presumption that the
legislature does not intend certain objects and any construction leading to any of such
objects deserves to be rejected. The court when faced with more than one possible
interpretation of an enactment is entitled to take into consideration the result of each
interpretation in a bid to arrive at the true intention of the legislature.
There may be cases where even though literal interpretation may include certain
consequences not intended by the legislature, the court shall not so interpret because
some lawful justification is available far doing so. Similarly, an Act may be construed
within a limited scope even though the language does not specifically so provide. In
certain other situations, a statute may be given a restricted interpretation on the basis of
the object of it although the grammatical construction would carry its operation for
beyond. Whenever, more than one construction are possible, that which seems
reasonable will be given effect to. The Court will try to avoid unreasonable,
inconvenient and anomalous results. When the consequence of an interpretation is
manifest injustice the court will generally hesitate to give effect to it. Similarly, a
construction leading to an absurd conclusion will be rejected. The duty of the court is
to suppress all evasions for the continuance of the mischief which the statute is supposed
to control.

In state of Punjab v. QaiserJehan Begun, the respondent made an application

under Section 18 if the Land Acquisition Act, 1894 for reference to the civil court within
six months from her knowledge of the award regarding compensation whereas the
section says that such reference would be made within six months from the date of the
award. Holding that the application was within time, the Supreme Court held that unless
an award of compensation comes to the knowledge, either actually or constructively,
how can a reference, if any, be made against the award. Therefore, justice and fair play
required that the counting of the limitation period must being from the date of
knowledge of the award.

iv. Harmonious Construction

When two or more provisions of the same statute are repugnant, the court will
try to construe the provisions in such a manner, if possible, as to give effect to both by
harmonizing them will each other. The court may do so by regarding two or more
apparently conflicting provisions as dealing with separate situations or by holding that
one provision merely provides for an exception of the general rule contained in the
other. The question as to whether separate provisions of the same statue are overlapping
or are mutually exclusive may, however, be very difficult to determine. The basis of the
principle of harmonious construction probably is that the legislature must not have
intended to contradict itself. This principle has been applied in a very large number of
cases dealing with interpretation of the Constitution. It can be assumed that when the
legislature gives something by one hand it does not take away the same by the other.
One provision of an Act does not make another provision of the same Act useless. The
legislature cannot be presumed to contradict itself by enacting apparently two
conflicting provisions in the same Act.
In Raj Krishna v. Binod, the question before the court was the conflict
between Sections 33 (2) and 123 (8) of the Representation of the People Act,
1951. Section 33 (2) empowers a government servant to nominate or second a
candidate seeking election whereas Section 123 (8) says that a government
servants is not entitled to assist a candidate in an election in any manner except
by casting his vote. Holding that a government servant was entitled to nominate
or second a candidate seeking election to the State Legislative Assembly, the
Supreme Court held that both these provisions should be harmoniously
interpreted. Harmony was possible only if Section 123 (8) of the Act is
interpreted as conferring power on a government servant of voting as well as of
proposing and seconding a candidature and forbidding him from assisting a
candidate in any other manner.

v. The Statute should be read as a whole

One of the important general principles of interpretation is that the statute should
be read as a whole and all parts of it taken together while construing a provision. This
principle is also stated as that a statute is to be interpreted ex visceribusactus, that is no
say, within four corners of the Act. A provision cannot be interpreted in isolation.
Sometimes, the meaning of words may be determined by other words used in the same
section while in some cases a section may be interpreted in the light of some other
sections in the same statute. The idea is to make a consistent enactment of the whole
statute and for this the context and other provisions of the Act are important
considerations. The court should, however, be careful not to carry too far a construction
of a provision with the help of other provisions and should do so only when it feels that
the legislature must have so intended. A doubt in the mind of the court that the
legislature might not have so intended should be enough ground for it to hold that the
legislature did not so intend. Similarly, a word used in the same section more than once
will have the same meaning normally. There may sometimes be compelling reasons for
not interpreting a particular section in the light of another section. In all cases the
scheme of the Act as a whole should be the guiding factor. Nothing is better settled than
that a statute is to be expounded, not according to the letter, but according to the
meaning and spirit of it. What is within the true meaning and spirit of the statute is as
much law as what is within the very letter of it, and that which is not within the meaning
and spirit, though it seems to be within the letter, is the not law, and is not the statute.
The effect should be given to the object, spirit, and meaning of a statute is a rule of legal
construction, but the object, spirit and meaning must be collected from the words used
in the statute. It must be such an intention as the legislature has used fit words to express.
This rule should not be used when the meaning of a provision is clear. The rule applies
to interpret only obscurely penned statutes. No particular phrase of a statute is to be
interpreted detached from its context. The whole context should be viewed. The
intention of the legislature gatherable from any other part of an Act must be considered
during construing a provision of that Act. Use of the words like if not inconsistent with
the context or subject-matter, 'unless the context otherwise requires' and unless a
contrary intention appears in Acts are indications of application of this principle.

In Poppatlal Shah v. State of Madras, the Supreme Court observed that it is a

settled rule of construction that to ascertain the legislative intent, all the constituent parts
of a statute are to be taken together and each word, phrase, or sentence is to be
considered in the light of the general purpose and object of the Act itself. 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.

vi. Construction Ut Res MagisValeat Quam Pereat

The maxim Ut Res MagisValeat Quam Pereat means that it may rather become
operative than null i.e., to unhold the constitutionality of statutes whenever it can
rationally be done. On this principle only a statute or any enacting provision therein
must be so construed so as to make it effective and operative. A machinery must be so
construed as to effectuate the liability imposed by the charging section and to make the
machinery workable. It is an application of this principle that courts while pronouncing
upon the constitutionality of a statute start with a presumption in favour of
constitutionality and prefer a construction which keeps the statute within competence
of the Legislature. The courts tend to be strongly against a construction which reduces
statute to be ineffective or useless. Therefore, whenever alternative constructions are
possible the court must give effect to that which will be responsible for the smooth
working of the system for which the statute has been enacted and not to that which
would put hindrances or obstacles in its way.
It is a cardinal rule of construction that normally no word or provision should
be considered redundant or superfluous in interpreting the provisions of a statute. In the
field of interpretation of statutes, the courts always presume that the legislature inserted
every part of it with a purpose and the legislative intention is that every part of the
statute should have effect. It may not be correct to say that a word or words used in a
statute are either unnecessary or without any purpose to serve, unless there are
compellening reasons to say so looking to the scheme of the statute and having regard
to the object and purpose sought to be achieved by it.

In order to make the statute workable, the court should take recourse to such
principles of interpretation of statutes as may be necessary, keeping in view the doctrine
of Ut Res MagisValeat Quam Pereat.
vii. Strict construction

Taxing statutes are strictly construed. Tax and fee are impositions made by a
State for raising revenue. A tax is imposed for public purpose for raising general
revenue of the State whereas a fee is imposed for rendering services and bears a broad
co-relationship with the services rendered. A taxing statute means any Act making
compulsory imposition whether of tax or fee. In HarshadMehta v. Custodian it has been
held that there are three stages in the imposition of a tax viz.,

1. Declaration of liability in respect of persons or property;

2. Assessment of tax that quantifies the sum which the person liable has to pay;
and
3. Methods of recovery if the person taxed does not voluntarily pay.
The expression 'tax due' usually refers to an ascertained liability on
assessment but its meaning may vary according to context.
The well –established rule in the familiar words of LORD
WENSLEDALE means, "The subject is not to be taxed without clear words for
that purpose; and also that every Act of Parliament must be read according to the
natural construction of its words".

viii. Beneficent construction.

The construction of a statute must not so strain the words so as include cases
plainly omitted from the natural meaning of the language. Where the usual meaning of
the words does not convey the object or intention of the legislature, a more extended
meaning may be attributed to them. If in a 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 of which would preserve the benefit and another would take it away,
the meanings which preserves it should be adopted. Ordinarily, the rule of beneficent
construction has been applied while construing welfare legislations or provisions
relating to weaker and stronger contracting parties.

Beneficent construction means an interpretation to promote public good and

prevent misuse of power. An interpretation which promotes justice and equity should
be preferred. Although hardship is not a ground for striking down legislation, but
wherever possible, statute should be interpreted to avoid possible hardship. Beneficial
provisions are added for general betterment in social interest. Courts should adopt a
constructive approach so as not to exclude such provision. Rather the Court should
adopt such construction which advances the policy of the legislation to extend the
benefit rather than one which curtails the benefit. Beneficial statutes should not be
construed too restrictively. In case of doubt or two possible views the beneficial
legislation is to be interpreted in favour of beneficiaries.

ix. Intention of the legislature

A statute is an established rule, formal regulation or ordinance, enacted

by the Legislature. Interpretation of statutes is the exclusive privilege of the
constitutional Courts. There are some settled principles of interpretation which
are given below:
i. The court must start with the presumption that the legislature did not make
a mistake.
ii. The court must adopt a construction which willcarryout the obvious
intention of the legislature.
iii. If there is a defect or an omission in the words used by the legislature, the
court would not go its aid to correct or make up the deficiency. The court
could not add words to a statute or read words into it which are not there,
especially when the literal reading produces on intelligible result. Only when
it becomes necessary to prevent a provision form being unintelligible, absurd,
unreasonable, unworkable or totally irreconcilable with the rest of the statute,
words may be added, altered or modified.

All such rules of interpretation are meant to assist the court in advancing
the ends of justice. Where the legislative intent to clear, court should give effect
to it. The conventional way of interpreting or construing a statute is to know the
intention of the maker of the statute. It has to be construed in the manner similar
to "the intent of them who make it". When more than one interpretation can be
made of a statutory provision, the Court has to be very careful in choosing that
interpretation which represents the true intention of the legislature and which can
also be referred to as the 'legal meaning' of the statutory provision. The function
of the Courts is only to expound the law and not to legislate. Judicial art of
interpretation and appraisal is imbued with creativity as well as realism because
interpretation implies a degree of discretion and choice, regardless of the
conventional principle that judges are to expound, not legislate. Court are
therefore, held as "finishers, refiners and polishers of legislation which comes to
them in a state requiring varying degrees of further processing." But there are
certain limits on court's powers of interpretation courts cannot relegislate on the
subject-under the guise of interpretation against the will expressed in the
enactment itself.

The intention of the legislature can be said to have two aspects:

i. 'meaning'.- First aspect is that of 'meaning' which tells what the words mean.
ii. 'Purpose and Object'. – Second aspect includes concept of 'purpose and
object' which means the purpose and object of enacting the statute.

Therefore, it can be said that the process of construction combines both

literal and purposive approaches. In other words, it means that 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. It is also a cardinal principle of construction that external
aids are brought in by widening the concept of context as including not only
other enacting provisions of the same statute, but its preamble, the existing state
of law, other statutes in parimateria and the mischief which the statute was
intended to remedy.
 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 contest, the subject-matter, the effects are consequences,
or the spirit and reason of the law. In the court of law what the legislature
intended to be done or not 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 pre-conceived notions of ideological structure or scheme into which
the provision to be interpreted is somehow fitted.

Even when the words bear a plain meaning judges often differ in their
opinion as to what the plain meaning of the word is and where the words do not
convey the plain meaning, difference of opinion is natural to arise. Where the
meaning is not certain, it becomes safe if object and purpose of the statute, or
reason or spirit behind it are looked at too. In the absence of clear words
indicating legislative intent, it is open to the court, when interpreting any
provision, to read it with other provisions of the same statute. Residual doubt
regarding a statutory provision can be cleared by examination of the scheme of
the statute. Legislative intent has to be ascertained in its proper perspective and
from the words used in the statute.
1.4 INTERNAL AIDS TO CONSTITUTION

Besides its various sections, a statute has many other parts, such as the
short title, long title, preamble, marginal notes, headings, definition or
interpretation clauses, provisos, illustrations, exceptions and saving clauses,
explanations, schedules and punctuation. It is important to know as to whether
these parts can be of any help to the courts in the interpretation of a section. In
other words, the question is whether they can act as internal aids to interpretation.

i) Short Title
The short title of the Act is only its nick name and is given solely for the
purpose of facility of reference. It is merely a name given for identification of
the Act and generally ends with the year of passing of the Act, such as the Indian
Contract Act, 1872, the Indian Penal Code, 1860, the Indian Evidence Act, 1872,
etc.
ii) Long Title
 A statute is headed by a long title whose purpose is to give a general
description about the object of the Act.
In the olden days the long title was not considered a part of the statute and
was, therefore, not considered an aid while interpreting it. There has been a
change in the thinking of the courts in recent times and there are numerous
occasions when help has been taken from the long title to interpret certain
provisions of the statute but only to the extent of removing confusions and
ambiguities. If the words in a statute are unambiguous, no help is derived from
the long title.
iii) Preamble
Preamble contains the main objects of the Act and is, therefore, a part of
the statute. On the basis of this reason, it deserves to be considered by the courts
as an internal aid to interpretation. It is said that preamble is the key to open the
mind of the legislature. It has, however, been unequivocally observed that if the
language of an enactment is clear and unambiguous, the preamble has no part to
play in interpretation. But if more than one interpretation are possible of a
particular provision, help can be taken from the preamble of the Act to find out
its true meaning.

iv) Marginal Notes

Marginal notes are those notes which are inserted at the side of the
sections in an Act and express the effect of the sections. These are also known
as side notes. These notes are inserted by the drafters and many times they may
be inaccurate too. However, there may be exceptional circumstances where
marginal notes are inserted by the legislatures and, therefore, while interpreting
such an enactment help can be taken from such marginal notes.

v) Headings
Headings are prefixed to sections or a group or a set of sections. These
headings have been treated by courts as preambles to those sections or set of
sections. Naturally, the rules applicable to the preamble are followed in case of
headings also while interpreting an enactment. Therefore, if the plain meaning
of an enactment is clear, help from headings cannot be taken by the courts.
However, if more than one conclusion are possible while interpreting a particular
provision, the courts may seek guidance from the headings to arrive at the true
meaning.

vi) Definition or Interpretation Clauses

Definition or Interpretation Clauses are generally included in a statute
with the purpose of extending the natural meaning of some words as per the
definition given or to interpret such words, the meanings of which are not clear,
by assigning them the meaning given in the definition clause. Generally, the
meaning given to a particular word in the interpretation clause will be given to
that word wherever it is used in that statute.

vii)Provisos
The insertion of a proviso to a section has the natural presumption that,
but for the proviso, the enacting part of the section would have included the
subject matter of the proviso. The general rule about the interpretation of a
proviso is that proviso is not to be taken absolutely in its strict literal sense but
is of necessity limited to the ambit of the section which it qualifies.

viii) Illustrations
Illustrations are sometimes appended to a section of a statute with a view
to illustrate the provision of law explained therein. A very large number of Indian
Acts have illustrations appended to various sections. They being the show of
mind of the legislature are a good guide to find out the intention of the framers.
But an enactment otherwise clear cannot be given an extended or a restricted
meaning on the basis of illustrations appended therein.

ix) Exceptions and Saving Clauses

Exceptions are generally added to an enactment with the purpose of
exempting something which would otherwise fall within the ambit of the main
provision.

x) Explanations
Explanations are inserted with the purpose of explaining the meaning of
a particular provision and to remove doubts which might creep up if the
explanation had not been inserted. It does not expand the meaning of the
provision to which it is added but only ties t remove confusion, if any, in the
understanding of the true meaning of the enactment.

xi) Schedules
Schedules attached to an Act generally deal with as to how claims or
rights under the Act are to be asserted or as to how powers conferred under the
Act are to be exercised. Sometimes, a schedule may contain some subjects in the
form of list as is the case with the Constitution of India to enable the Union and
the states to legislate in their respective fields. Schedules are parts of the Statute
itself and may be looked into by the courts for the purpose of interpreting the
main body of the statute.
 xii)Punctuation
In the ancient times, statutes were passed without punctuations and
naturally, therefore, the courts were not concerned with looking at punctuations.
But in the modern times statutes contain punctuations. Therefore, wherever a
matter comes before the courts for interpretation, the courts first look at the
provision as they are punctuated and if they feel that there is no ambiguity while
interpreting the punctuated provision, they shall so interpret it. However, while
interpreting the provision in the punctuated form if the court feels repugnancy or
ambiguity, the court shall read the whole provision without any punctuations and
if the meaning is clear will so interpret it without attaching any importance
whatsoever to the punctuations.

UNIT–II
2.1 External aids to constitution
Other than the internal aids to interpretation which are parts of the statute
itself there are other aids which are not parts of the statute. These are known as
external aids, such as dictionaries, textbooks, historical background, legislative
history and practice – judicial, conveyancing, administrative and commercial.

i) Dictionaries
Words used in a statute should be interpreted in the light of their ordinary
sense. To find out the ordinary sense of the words, dictionaries can naturally be
of help. Dictionaries can, therefore, be consulted by the courts whenever the need
arises to know the ordinary sense of a word. But the courts must be careful
because it is not necessary that dictionary meanings of a word may be the true
meaning in a particular context. "it is for the court to interpret the statute as best
as it may. In so doing the court 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.

Diverse meanings of words are given in a dictionary. It is very difficult

for a court to choose the correct meaning out of the same. Under these
circumstances the context in which the word has been used becomes very
important. The court should, therefore, always keep in mind the context in which
a word has been used while choosing the correct meaning of that word.
ii) Text Books
Text books may be referred to by the courts to arrive at the true meaning
of an enactment. It is, however, not necessary that the views expressed therein
are the views of the court also. There have been instances of both acceptance and
 rejection by the courts of the opinions expressed in text books. Manu,
Yajnavalkya, Vijnaneswar, Jimutvahan and Kautilya have been frequently
quoted by courts with approval. Mulla has also been referred time and again.

iii) Historical background

The court is at liberty to look into the history of the law and legislation
and to seek help from other historical facts which in the opinion of the court, will
be necessary to get to the true meaning of an enactment. It may also consider
whether an Act was intended to change the law or to leave the law undisturbed.
But the court should be careful not to enter into the legislative field by giving an
interpretation which it only thinks was perhaps in the mind of the legislature but
which is not otherwise inferable from the words of the statute. "In construing any
enactment regard must be had not only to the words used but to the history of the
Act and reasons which led to it being passed. You must look to the mischief
which had to be cured as well as to the sure provided." The Subject-matter with
which the legislature was dealing and the facts existing at the time with respects
to which the legislature was legislating are legitimate topics to consider in
ascertaining what was the object and purpose of the legislature in passing the
Act.

iv) Legislative History

In the past the courts used to look at the legislative history of a statute
occasionally to know its true context. But the modern views seems to be that it is not
permissible as an aid to interpretation. The legislative debates on the floor of the
Houses, reports of the Select Committees and the statements of objects and reasons are,
therefore, inadmissible as aids to interpretation.

The basis of this rule seems to be that whatever was in the mind of the legislators
has been already expressed through words and further, that any attempt on the part of
the legislators to influence courts with their individual views must be resisted.

In A.K. Gopalan v. State of Madras, the Supreme Court while disallowing a

speech to be considered as an aid to interpretation, observed that a speech made in the
course of the debate on a Bill court at best be indicative of the subjective intent of the
speaker, but it could not reflect the inarticulate mental process lying behind the majority
vote which carried the Bill. Nor is it reasonable to assume that the minds of all those
legislators were in accord.

v) Practice – Judicial, Conveyancing, Administrative and Commercial

Though administrative practice generally is not recognized as an aid to

interpretation, it has occasionally been given weight by the courts. On the other
hand, practice of eminent conveyancers have frequently been given much respect
 by the courts. Commercial practice or usage as it is called have also been thought
important as aid to interpretation.

UNIT-III
3.1 SUBSIDIARY RULES

a. Same Word same Meaning

When the Legislature uses same word in different parts of the same section or
statute, there is a presumption that the word is used in the same sense throughout. But
this presumption is a weak presumption and is readily displaced by the context. Even
when the same word is used at different places in the same clause of the same section it
may not bear the same meaning at each place having regard to the context of its use.

The Supreme Court in interpreting the words 'the grounds on which the order has
been made' as they occurred in section 3(3) and section 7(1) of the Preventive Detention
Act, 1950 held that the words did not bear the same meaning in these two provisions.
Under section 7(1), in communicating the grounds of detention to the detenu the
Authority could withhold such facts which were according to it against the public
interest to disclose. While under section 3(3), in reporting to the State Government the
grounds of detention, these facts were likely to figure more prominently.

b. Non obstante clause

The expression 'non-obstante' means "notwithstanding". A clause beginning with

"notwithstanding anything contained in this Act or in some particular provision in the
Act or in some particular Act or in any law for the time being in force', is sometimes
appended to a section in the beginning, with a view to give the enacting part of the
section in case of conflict an overriding effect over the provision or Act mentioned in
the non-obstante clause. It is equivalent to saying that in spite of the provision or Act
mentioned in the non-obstante clause, the enactment following it will have its full
operation or that the provision indicated in the non-obstante clause will not be an
impediment for the operation of the enactment".

The expression 'notwithstanding anything in any other law' occurring in a section

or an Act cannot be construed to take away the effect of any provision of the Act in
which that section appears.

c. Mandatory and Directory Provisions

In legal terminology where something is required to be done and the

consequences of failure to do so are also provided then it is known as mandatory
provision. There is no universal rule regarding the directory or mandatory provisions
except this that language alone most often is not decisive, and regard must be had to the
context, subject-matter and object of the statutory provision in question in determining
whether the same in directory or mandatory. Mandatory or directory does not depend
upon phraseology used in the statute but has to be determined having regard to purpose
and object of the statute. It is the duty of the courts to get the real intention of the
legislature by carefully attending the whole scope of the provision to be construed. The
key to the opening of every law is the reason and spirit of the law, it is the animus
impotentia, the intention of the law maker expressed in the law itself, taken as a whole.

The Super Court approved the following passage: "The question as to whether a
statute in mandatory or directory depends upon the intent of the legislature and not the
language in which the intent is clothed. The meaning and intention of the legislature
must govern, and these are to be ascertained not only from the phraseology of the
provision, but also by considering its nature, its design, and the consequences which
would follow from construing it one way or the other.

When a statute is passed for the purpose of enabling something to be done, and
prescribes the way in which it is to be done, it may be either an absolute enactment or
a directory enactment. The difference being that an absolute enactment must be obeyed
or fulfilled exactly, but it is sufficient if a directory enactment be obeyed or fulfilled
substantially. No universal rule can be laid down as to whether mandatory enactments
shall be considered directory only or obligatory with an implied nullification for
disobedience. It is the duty of the court 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 considered.

Where a statute does not consist merely of one enactment but contains a number
of different provisions regulating the manner in which something is to be done, it often
happens that some of these provisions are to be treated as being directory only. While
other are to be considered absolute and essential.

If two interpretations are possible of a statutory provision, out of which one tends
to preserve and save the constitutionality of that statutory provision while the other
tends to render it unconstitutional and void, the one which saves and preserves the
constitutionality of the provision should be adopted and the other should be rejected.
Thus constitutionalitycan be preserved by interpreting that statutory provision as
directory and not mandatory.

If the subject of the enactment will be defeated by holding it directory, it will be

construed as mandatory, whereas if by holding it mandatory serious general
inconvenience will be created to innocent persons without very much furthering the
object of enactment, the same will be construed as directory. However, by this it is not
meant that the language used is to be ignored but only that the prima facie inference of
the intention of the legislature arising from the words used may be displaced by
considering the nature of the enactment, its design and consequences flowing from
alternative constructions.
 If a provision is mandatory an act done in its breach will be invalid whereas if it
is directory the act will be valid although the non-compliance may give rise to some
other penalty if provided by the statute.

It is a well-settled principle that if a thing is required to be done by a private

person within a specified time, the same would ordinarily be mandatory but when a
public functionary is required to perform a public function within a time-frame, the
same will be held to be directory unless the consequences therefor are specified. Thus,
the provisions for timely payment of rent by the tenant under Rent control legislation
were held to be mandatory in nature.

d. Conjunctive or Disjunctive

The word 'or' is normally disjunctive and 'and' is normally conjunctive but at
times they are read as vice versa to give effect to the manifest intention of the
Legislature as disclosed from the context.

According to Lord HALSBURY, the reading of 'or' as 'and' is not be resorted to,
unless some other part of the same statute or the clear intention of it requires that to be
done.

If the literal reading of the words produces an unintelligible or absurd result 'and'
may be read for 'or' and 'or' for 'and' even though the result of so modifying the words
is less favourable to the subject provided that the intention of the legislature is quite
clear. But if reading of 'and' as 'or' produces grammatical distortion and makes no sense
of the portion following 'and' ,'or' cannot be read in place of 'and'.

In State of Bombay v. RMDChamarBaugwala while dealing with

section 2(d)(i) of the Bombay Lotteries and Prize Competition Control and Tax
Act, 1948 the Supreme Court read 'or' as 'and' to give effect to the clear intention
of the legislature as expressed in the Act read as whole.

e. Construction of General Words

Construction of general words shall be discussed under following
subhandings:
(i) General
(ii) Noscitur A Sociis
(iii) Rule of enjusdem generis
(iv) Words of rank
(v) ReddendSingulaSingulis

(i) Noscitur A Sociis

The doctrine of 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. In ascertaining the meaning of the word or a clause or
sentence in the statute in its interpretation everything which is legally relevant should
be admissible. It is no doubt true that the doctrine of noscitur a sociis, meaning thereby,
that is a legitimate rule of construction to construe words in an Act of Parliament with
reference to words found in immediate connection with them i.e., when two or more
words which are susceptible of analogous meaning are clubbed together, they are
understood to be used in their cognate sense. They take, as it were, their colour from
each other, the meaning of the more general is restricted to a sense analogous to a less
general. The philosophy behind it is that the meaning of the doubtful words may be
ascertained by reference to the meaning of words associated with it. This doctrine is
broader than the doctrine of ejusdem generis. This doctrine was accepted by the court
in a catena of cases but its application is to be made in the context and the setting in
which the words came to be used or associated in the statute or the statutory rule.

According to Maxwell, "this rule means that when two or more words which are
susceptible of analogous meaning are coupled together, they are understood to be used
in their cognate sense. They take as it were their colour from each other, i.e., the more
general is restricted to a sense analogous to a less general.

This rule has been interpreted as that the 'Associated' words take their meaning
from one another under the doctrine of noscitur a sociis, the philosophy of which is that
the meaning of the doubtful word may be ascertained by reference to the meaning of
words associated with it, such doctrine is broader than the maxim ejusdem generis.

Noscitur a sociis is only a rule of construction and it cannot prevail in cases

where it is clear that the wider words have been deliberately used in order to make the
scope of the defined word correspondingly wider. It is 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.

(ii) Rule of Ejusdem Generis

According to the rule of ejusdem generis, when particular words pertaining to a

class, category or genus are followed by general words, they are construed as limited to
the things of the same kind as those specified.

Regarding the application of rule of ejusdem generis it is said that the general
expression has to be read to comprehend things of the same kind as those referred to by
the preceding specific things constituting a genus, unless from the language of the
statute it can be inferred that the general words were not intended to be so limited and
no absurdity or unintended complication is likely to result if they are allowed to take
their natural meaning. The cardinal rule of interpretation is to allow the general words
to take their natural wide meaning unless the language of the statute gives a different
indication or such meaning is likely to lead to absurd results in which case their meaning
can be restricted by the application of this rule and they may be required to fall in line
with the specific things designated by the preceding words. But unless there is a genus
which can be comprehended from the preceding words, there can be no question of
invoking this rule. Nor can this rule have any application where the general words
precede specific words.

When two or more words which are susceptible of analogous meaning are
coupled together they are understood to be used in their cognate sense. It is based on
the principle that words take as it were their colour from each other, i.e., the more
general is restricted to a sense analogous to a less general.

This rule applies under the following situations:

(a) When the statute contains an enumeration of specific words;
(b) The subjects of enumeration constitute a class or category;
(c) That class or category is not exhausted by the enumeration;
(d) The general terms follow the enumeration; and
(e) There is no indication of a different legislative intent.

(iii) ReddendoSingulaSingulis

"Where there are general words of description, following an enumeration of

particular things such general words are to be construed distributively,
reddendosingulasingulis; and if the general words will apply to some things and not
others, the general words are to be applied to those things to which they will, and not to
those to which they will not apply; that rule is beyond all controversy.

Osborne's Concise Dictionary gives an example of reddendosingulasingulis as 'I

devise and bequeath all my real and personal property to A' will be construed
reddendosingulasingulis by applying 'devise' to 'real' property and 'bequeath' to personal
property.

The different portions of a sentence, or different sentences, are to be referred

respectively to the other portion or sentences, to which we can see they respectively
relate even if strict grammatical construction should demand otherwise.
This rule has been applied in the construction of the Proviso to Article 304 of the
Constitution which reads: 'Provided that no Bill or amendment for the purpose of clause
(b) shall be introduced or moved in the legislature of a State without the previous
sanction of the President.' It was held by the Supreme Court that the word 'introduced'
referred to 'Bill' and the word 'moved' to 'Amendment'.

(iv) Expression uniusest exclusion alterius

Express mention of one thing implies the exclusion of another is the meaning of
the expression expressiouniusestesclusioalterius. Where two expressions are used in a
statute one of which generally includes the other, the more general expression excludes
the less general.
 This maxim is "a valuable servant but a dangerous master". This may be
employed to denote the intention of the legislature but it would not be safe to regard it
as an obligatory rule of law.

In one case this rule of expression uniusest exclusion alterius was applied by the
Supreme Court in interpretation of section 9(2) of the Central Sales Act, 1956. The first
part of the provision vested powers in the State officials to act on behalf of the Central
Government for assessing, re-assessing and enforcing payment of tax while the latter
part of the provision provided that this will be as if the tax or penalty payable under the
Central Act is a tax or penalty under the general Sales Tax Law of the State. The
Supreme Court held that the penalty provisions in the Central and the State legislations
were special provisions in each Act and were not part of the general sales tax law of the
Centre or the State. Therefore, the priniciple of expression uniusestexclusioalterius was
applicable here.

(v) Expressumfacitcessarytacitum

This maxim of expressumfacitcessarytacitum which is a synonym of the

above stated maxim expressiouniusestexclusioalterius says that when there is
express mention of certain things, then anything not mentioned is excluded.

The Supreme Court in B.ShankaraRaoBadami v. State of Mysore held

that this maxim is a principle of logic and common sense and not merely a
technical rule of construction

(vi) Generaliaspecialibus non derogant

There are two co-related maxims, generaliaspecialibus non derogant and

generaliaspecialibusderpgamt. The first maxim, i.e.,
generaliaspecialibsnonderogant means general things do not derogate from
special things while the second one i.e., generaliaspecialibsderogant means that
special things derogate from general things.
According to generaliaspecialibus non dergate, a general Act is not
construed as repealing a particular or special Act. Even if the particular Act is
earlier in time but if it deals with a special object, a later enacted general law will
not abrogate the particular Act, unless a contrary intention is expressly indicated.
3.2 OPERATION OF STATUTES

a) Commencement
'Commencement' of an Act means the day on which the Act comes into force.
Unless otherwise provided, a Central Act comes into operation on the day it receives
the Presidential Assent and is construed as coming into operation immediately on the
expiration of the day preceding its commencement.
A State Act comes into force on the day when the assent of the Governor or the
President, as the case may be, is first published in the Official Gazette of the State.
Unless an Act is brought into operation by Legislative enactment or by the
exercise of authority by a delegate empowered to bring it into operation, an Act cannot
be said to commence or to be in force. Power to bring into force an Act can be exercised
by the delegate even though the legislature may have ceased to be competent to enact
the Act, if it was within the competence of the legislature at the time of its enactment.
When enforcement of a statue or any of its provisions is left at the discretion of
the government without laying down any objective standards, no writ of mandamus can
be issued to the government to enforce the statute or the provision. But if considerable
time has elapsed since passing of the statute, a write can be issued directing the
government to considerthe question whether the statute are the provision should be
brought into force.
The commencement of An Act is often postponed to some specified future date
or to such date as the appropriate government may, by notification in the Official
Gazette, appoint. Sometimes different dates are also appointed for enforcement of
different parts of the same Act.
An Act which is not applicable to an area or a State cannot be applied there by
judicial fiat. But if the fact situation of the case so requires and a provision in such an
Act embodies a principle of justice, equity and good conscience, the principles so
embodied may be applied to a case arising from an area or State to which the Act
originally does not extend.
A provision in bill does not come into operation unless the enacting process is
over and the resultant Act containing that provision is brought into operation. However,
an Act can provide that certain provision of a Bill on a given subject will come into
operation on their introduction in the legislature.
b) Retrospective Operation
General Principles
It is a cordinal principle of construction that every statue is prima facie
prospective unless it is expressly or by necessary implication made to have a
retrospective operation. But the rule in general is applicable where the object of the
statute is to affect vested rights or to impose new burdens or to impair existing
obligations. Unless there are words in the statue sufficient to show the intention of the
legislature to affect existing rights, it is deemed to be prospective only. The maxim
nova constitution futurisformamimponeredebet non praeteritis applies i.e., any new law
ought to regulate what is to follow, not the past.
The absence of a provision expressly giving a retrospective operation to the
legislation is not determinative of its prospective or retrospectivity.
Four facts are held to be relevant here:
(i) general scope and purview of the statute;
(ii) the remedy sought to be applied;
(iii) the farmer state of law; and
(iv) what it was the legislature contemplated.
a) Power to Make Retrospective Laws.
 The Union Parliament State Legislatures have plenary powers of legislation
within the fields assigned to them. These two can, subject to certain Constitutional
restrictions, legislate prospectively as well as retrospectively. Parliament and
Legislatures, competence to make a law for a past period on a subject depends upon
their presence competence to legislate on that subject. The power to make retrospective
legislation enables the Legislature to obliterate an amending Act the completely and
restore the law as it existed before the amending Act. The legislature may make a law
by retrospectivelegislation which is operative for a limited period prior to the date of its
coming into force and is not operative either on that date or in future.

b) Statutes dealing with Substantive Rights

Lord BLANESBURG observed that, "provisions which touch a right in existence

at the passing of the statute are not be applied retrospectively in the absence of express
enactment or necessary intendment."
It is a cardinal principle of construction that every statute is prima facie
prospective unless it is expressly or by necessary implication made to have retrospective
operation.
Unless there are words in the statute sufficient to show the intention of the
Legislature to affect existing rights, it is "deemed to be prospective only 'nova
constitutiofuturisformanimponeredebet non praeteritis' which means a new law ought
to regulate what is to follow, not the past.
It requires that close attraction much be paid to the language of the statutory
provision for determining the scope of the retrospectivity intended by Parliament. But
if the literal reading of the provision giving retrospectivity produces absurdities and
anomalies, a case not prima facie with in the words may be taken to be coverd, if the
purpose of the provision indicates that the intention was to cover it.
Presumption against retrospectivity may be rebutted by necessary implication
especially in a casewhere the new law is made to cure an acknowledged evil for the
benefit of the community as a whole.
An amending Act is not retrospective merely because it applies also to those to
whom pre-amended Act was applicable if the amended act has operation from the date
of its amendment ant not from an anterior date. However, it is not meant by this that a
statue which takes away or impairs any vested right acquired under existing laws or
which creates a new obligation or imposes a new burden in respect of past transactions
will not be treated as retrospective.
Only in some cases, a distinction is made between an existing right and a vested
right and it is said that the rule against retrospective construction is applied only to save
vested rights and not existing rights.

c) Statues dealing with procedure

In the words of Lord DENNING: "The rule that an Act of Parliament is not to be
given retrospective effect applies only to statutes which affect vested rights. It does not
applied to statues which only alter the form of procedure or the admissibility of
evidence, or the effect which the courts give to evidence".
In contrast to statutes dealing with substantive rights, statute dealing with merely
matters of procedure are presumed to be retrospective unless such a construction is
taxtually inadmissible.
Maxwell expressed the rule in the following words : " No person has a vested
right in any course of procedure. He has only the right of prosecution or defence in the
manner prescribed for the time being by or for the court in which the case is pending,
and if, by an Act of Parliament the mode of procedure is altered, he has no other right
than to proceed according to the altered mode."
An example can be taken of section 45B of the Employees' State Insurance Act,
1948, which enables the Employees' State Insurance Corporation to recover arrears of
contribution from the employers as arrears of land revenue, has been held to be
procedural and applicable to arrears falling due before coming into force of the section.

d) Recent Statements of the rule against Retrospectivity

In recent years, the rule against retrospective operation has been stated avoiding
the classification of statutes into substantive and procedural and avoiding use of works
like existing or vested. For example, in secretary of state For Social Security v.
Tunniceliffe, the simple statements of the rule was made by STAUGHTON L.J. in the
following words:
"the true principle is that the parliament is presumed not to have intended to alter
the law applicable to past event and transactions in manner which is unfair to those
concerned in them unless a contrary intention appears. It is not a simply a question of
classifying an enactment as retrospective or not retrospective. Rather it may well be a
matter of degree-the grater the unfairness, the more it is to be expected that the
parliament will make it clear if that is intended.

e) Language not always Decisive

Although the language used is the most important factor in question on

applicability of a particular statue to past events but it cannot be said that use of present
tense or present perfect tense is decisive of the matter that the statute does not draw
upon past events for its operation. For example, the words 'if a person has been
convicted' were construed to include anterior convictions. Similarly, the words 'has
made', 'has ceased', 'has failed' and 'has become' may denote events happing before or
after coming into force of the statute and all that is necessary is that the event must have
taken place at the time when the action on that account taken under the statute.
In each case the intention of the legislature is to be gathered from the language
used, the object of the statute, nature of affected rights and the circumstance in which
the statute is passed.

c) Presumption against exceeding Constitutional Power

A) Legislative Powers
 Article 246 and Lists I, II and III in the Seventh Schedule of the Constitution
confer legislative powers on Parliament and State Legislatures. Parliament has
exclusive power to make laws with respect to any of the matters in List I while State
Legislatures have exclusive power to make laws with respect to matters in List II.
Whereas both the Parliament and State Legislatures have power to make laws with
respect to matters in List III. List I is known as the Union List, List II as the State List
and List III is called the Concurrent List. Residuary power of Legislation is vested in
Parliament by virtue of Article 246(6) and entry 97 in List I. The power of State
Legislatures to make laws is subject to the power of Parliament to make laws with
respect to matters in Lists I and III.
The doctrine of pith and substance which permits incidental encroachment in the
rival field makes it possible that a law made by the State Legislature on some matters
in List II makes some incidental encroachment on some matter in List I. Such an
incidental encroachment will be valid if the field of encroachment will be to the extent
of repugnancy. If subsequently the field is covered by a law made by the Parliament,
then that incidental encroachment will become void.
Repugnancy arises when the superior legislation evinces an intention to cover
the entire field leaving no room for the rival legislation to operate in that field. In case
of direct conflict between competing legislation when these conflicting legislations
cannot be reconciled and it becomes impossible to give effect to both, repugnancy
arises.
It is also pertinent here to discuss that doctrine of colourable legislation. In
colourable legislation the legislation purporting to act within the limits of its powers
actually transgresses its powers.
Neither the parliament not the State Legislature can violate any provisions of the
Constitution of India.

B) Presumption of Constitutionality
There is a presumption of constitutionality of the rule. The court ought not to
interpret the statutory provision, unless compelled by their language, in such a manner
as would involve its unconstitutionality, since the legislature or the rule making
authority is presumed to enact a law which does not contravene or violate the
constitutional provisions. Therefore, there is a presumption in favourof
constitutionality of a legislation or statutory rule unless ex facie it violates the
fundamental rights guaranteed under Part III of the Constitution. If the provision of a
law or the rule is construed in such a way as would make it consistent with the
Constitution and another interpretation would render the provision or the rule
unconstitutional, the Court would lean in favour of the former construction.
There is a presumption that the legislature does not exceed its jurisdiction and
burden of establishing that the Act is not within the competence of the legislature, or
that it has transgressed other constitutional mandates, such as those relating to
fundamental rights, is always on the person who challenges its vires.
Once a citizen in able to establish that the impugned legislation has invaded his
fundamental rights under Article 16(1)(g) of the Constitution, the State must justify that
the law is saved under clause (6) of the same Article.
 Similarly in Khyerbari Tea Co. v. State of Assam it has been held that if a law is
shown to invade the freedom of trade under Atricle 301, the onus shifts to the State to
satisfy that restrictions imposed are reasonable and in public interest within the meaning
of Article 304 (b).

C) Rule of Construction
If on one construction a given statute will become ultra vires the powers of the
legislature whereas on another construction, which may be open, the statute remains
effective and operative, the court will prefer the latter, on the ground that the legislature
is presumed not to have intended an excess of its jurisdiction. This rule is applicable
only when two views are possible as to the meaning of the satutory language.

d) Presumption against Exceeding Territorial Nexus

I. Principal of Territorial Nexus

a) General

Non-sovereign legislatures like those of colonies, Australian States or Canadian

provinces are incompetent to legislate with extra-Territorial effect. This means that a
law made by such a legislative must bear a real Territorial connection with the subject-
matter with which it is dealing.

b) Legislation under the Government of India Act, 1935

Section 99(1) of the Government of India Act, 1935 provided that the Federal
Legislature was empowered to 'make laws for the whole or any part of British India'
and the Provincial Legislatures were empowered to 'make laws for the province or any
part thereof'. Section 99(2) enumerated certain matters and provided that no Federal law
shall, on the ground that it would have extra-territorial operation, be deemed to be
invalid in so far as it applied to those enumerated matters. Both the Federal and the
Provincial Legislatures were thus, subject to the rule forbidding extra-territorial
Legislation in the sense that presence of a 'sufficient' of 'real' territorial connection with
British India in respect of federal laws and the Province concerned in respect of
Provincial laws, was necessary to bring a law within their Legislative competence.
If sufficient territorial nexus or connection existed, then the Legislation was to
be valid and in this case it would be entirely immaterial to see whether the liability
imposed was proportionate or disproportionate to the territorial connection.

c) Legislation under the Constitution of India

Article 245 of the Constitution of India provides that 'No law made by Parliament
shall be deemed to be invalid on the ground that it would have extraterritorial nexus.
Therefore, Legislation made by the Parliament cannot be questioned on the ground that
it has extra-territorial operation.
The doctrine of territorial nexus has been applied to States Acts under the
Constitution. The laws which a State is empowered to make must be for the purpose of
that state and the laws enacted by State Legislatures in the absence of a territorial nexus
cannot have any extra-territorial operation.
In the words of S.R.DAS, C.J., "Sufficiency of the territorial connection involves
a consideration of two elements, namely: (a) the connection must be real and not
illusory: and (b) the liability sought to be imposed must be pertinent to that connection".
If the nexus is rational on a consideration of the aforesaid two elements, any
further examination of the sufficiency of nexus cannot be a matter of adjudication before
the court.

3.3 Expiry and repeal of statutes

I. Perpetual and Temporary Statutes

A statutes may be perpetual or temporary. A statute becomes perpetual when no

time is fixed for its duration, and such a statute remains in force until it is repealed either
by express provision or by implication. A perpetual statute is not perpetual in the sense
that it cannot be repealed but it is perpetual because it is not abrogated by efflux of time
or by non-user.
A statute is temporary when its duration is for a specified time and it expires on
the expiry of the specified time unless it is repealed earlier. If the purpose of a statute is
temporary the statute cannot be regarded as temporary when no fixed period is specified
for its duration. After a temporary statute expires, it cannot be made effective by merely
amending the same. Revival of the expired statute can be done only by re-enacting a
statute in similar terms or by enacting a statute expressly saying that the expired Act is
herewith revived.

II. Effect of expiry of Temporary Statutes

Section 6 of the General Clauses Act, 1897 which in terms is limited to repeals
is not applied when a temporary statute expires. The effect of expiry depends upon the
construction of the Act. This topic can be taken up under the following sub-headings:
(A) Legal proceedings under expired statute
(B) Notifications, Orders, Rules made under temporary statute
(C) Expiry does not make the statute dead for all purposes
(D) Repeal by a temporary statute.

(A) Legal proceedings under expired statute

A question often arises whether the legal proceedings under the expired
statutes can be initiated or continued after the Act has expired. Very often the
Legislature itself enacts a saving provision in the temporary Act which is similar in
effect to section 6 of the General Clauses Act, 1897. However, if such a saving provision
is not present the normal rule is that proceedings taken against a person under a
temporary statute ipso facto terminate as soon as the statute expires.
Therefore, in the absence of a saving provision when a statute expires, a
person cannot be prosecuted and convicted for an offence against the Act and if the
prosecution has not ended before the date of expiry of the Act, it will automatically
terminate as a result of the termination.

(B) Notifications, Orders, Rules etc. made under Temporary Statute

The normal rule is that when a temporary Act expires, any notification,
appointment, order, scheme, rule, bye-laws made or issued under the statute will also
come to an end with the expiry of the Act and will not be continued even if the
provisions of the expired Act are re-enacted.

(C) Expiry does not make the Statute Dead for all purposes

Expiry does not make the statute dead for all purposes even in the absence of
a saving clause. The nature of the right and obligation resulting from the provisions of
the temporary Act and their character may have to be regarded in determining whether
the said right or obligation is enduring or not.

(D) Repeal by a Temporary Statute

When a temporary statute effects a repeal of an existing statute, a

question arises whether the repealed statute revives on the expiry of the repealing
statute. Section 11(1) and section 38(2)(a) of the Interpretation Act, 1899 have
no application to a case of expiry of a repealing Act. Similarly 6(a) of the General
Clauses Act, 1897 has no application on expiry of a repealing statute.
Therefore, a statute which is repealed by a temporary statute will
revive or not on the expiry of the repealing statute will depend upon the
construction of the repealing statute.
When it is held on construction that the repealing section in a
temporary statute expires with the expiry of the Act,the repeal will be construed
only as a temporary repeal.

III. Repeal may be Express or Implied

The general rule is that "the power of a legislative body to repeal a law is
coextensive with its power of enact such a law. "However, this general rule is subject
to any constitutional restriction. The Legislature which has no power to enact a law on
a particular subject-matter has also no power to repeal the same. However, a legislature
has no power to bind itself or its successor as to the course of future legislation for to
acknowledge such a power will mean that a legislature can curtail its own or its
successor's power which are conferred by the Constitution and which cannot be
restricted or taken away except by an amendment of the Constitution.
 When a general Act says that its provisions shall apply unless 'expressly excluded'
by any special law it does not mean that the exclusion must be by express words only,
it may be by necessary implication also.

IV. Express repeal

Any particular form of words is not necessary to bring about an express

repeal. The most common words for express repeals include 'is or are hereby
repealed', shall cease to have effect' and 'shall be omitted', etc. when a new
provision is 'substituted' in place of an existing provision or a new provision is
made in supersession of an existing provision, then the declaration of invalidity
of new provision on the ground of want of competence will also invalidate the
repeal. However, if the declaration of invalidity is on other grounds the repeal
will be effective although the new provision is declared invalid unless from the
totality of circumstances and context it is found that there was no intention to
repeal in the event of the new provision being struck down.
Sometimes of Legislature does not enumerate the Acts which it sought to
repeal but only says that 'all provisions inconsistent with this Act' are hereby
repealed. About this repealing provision it is said that it merely substitutes for
the uncertainty of the general law an express provision of equal uncertainty.
There is another uncertain formula when the later Act provides that a
particular earlier Act 'shall to the extent necessary to give effect to the provisions
of this Act be deemed to have been repealed or modified'. An example of such
an uncertain formula is found in the case
of PalaniAmmalv.ViswanathChettian. In this case, in section 13 of the Madras
City Tenants protection Act, 1922 such a formula was used to restrict the
application of the Transfer of Property Act. The Supreme Court held that
determination of tenancy by forfeiture as envisaged by section 111(g) of the
Transfer of Property Act must be deemed to have been repealed or modified
because its applicability by itself, specially s.9, will nullify and make it
inoperative.

V. Implied Repeal
(A) General

There is a presumption against a repeal by implication and this presumption

is based on the theory that the Legislature while enacting a law has a complete
knowledge of the existing laws on the same subject-matter and, therefore, when it does
not provide a repealing provision, it gives out an intention not to repeal the existing
legislation.
In the absence of an express provision of repeal the continuance of an existing
legislation is presumed. The burden to show that there has been a repeal by implication
lies on the party asserting the same. However, if the provisions of the later Act are
inconsistent with or repugnant to the provisions of an earlier Act that they cannot stand
together, the presumption is rebutted and repeal by necessary implication is inferred.
But if the two Acts can be read together, a repeal will not be inferred.
 The Supreme Court has indicated that the test for determining repugnancy
under Article 254 of the Constitution may be applied for solving a question of implied
repeal and that it should be seen:
"(a) Whether there is direct conflict between the two provisions;
(b) Whether the legislature intended to lay down an exhaustive Code in
respect of the subject-matter replacing the earlier law;
(c) Whether the two laws occupy the same field".
The doctrine of implied repeal is based on the theory that the Legislature,
which is presumed to know the existing law, did not intent to create any confusion by
retaining conflicting provisions and, therefore, when the court applies the doctrine, it
does no more than to give effect to the intention of the Legislature by examining the
scope and the object of the two enactments and by comparison of their provisions.

(B) Prior General law and later Particular Law

A prior general Act may be affected by a subsequent particular Act if the

subject-matter of the particular Act prior to its enforcement was being governed by the
general provisions of the earlier Act i.e., generalilausspecialiaderogant. Here the
operation of the particular Act may partially repeal the general Act, or curtail its
provisions or add conditions to its operation for the particular cases.

(C) Prior particular Law and later General Law

A prior particular law or special law is not readily held to be impliedly

repealed by later general enactment because the particular law deals with a particular
phase of the subject covered by the general law and, therefore, a reconciliation is
possible between the two. A particular Act is construed as an exception or qualification
of the general Act.

(D) Affirmative enactments

It has been held that one affirmative enactment is not easily taken as repealed
by another later affirmative enactment. But if the later Act is precise negative of
whatever authority existed under an earlier Act, the repeal shall be inferred.

(E) Laws defining Offences and Penalties

When a later statute describes an offence which was created by an earlier

statute and imposes a different punishment for that offence or varies the provision
thereof, the earlier statute is repealed by implication. But where the offence described
in the later Act is different from the offence described in an earlier Act, this principle
has no application.
Article 20(2) of the Constitution directs that no person shall be prosecuted
and punished for the same offence more than once. The General Clauses Act by its
section 26 provides that where an act or omission constitutes an offence under two or
more enactments, then the offender shall be liable to be punished under either or any of
those enactments but shall not be liable to be punished twice for the same offence. Both
of these provisions apply when the two offences which are the subject-matter of
prosecution or prosecutions are same, when they are different these provisions will not
apply.

VI. Consequences of Repeal

(A) General

A statute after its repeal is as completely obliterated as if it had never been

enacted. Except the proceedings which were commenced, prosecuted and brought to a
finality before the repeal, no other proceeding under the repealed statute can be
commenced or continued after the repeal.
Under the common law rule, if one statute is repealed by a second which in
turn is repealed by third, the effect is revive the first statute unless a contrary intention
is indicated in the third statute. As a result of these frequent repeals confusion arose.
Therefore, the practice of inserting saving clauses in the repealing statutes was adopted
and later on, to obviate the necessity of inserting a savng clause in each and every
repealing statute, a general provision was made is section 38(2) of the Interpretation
Act, 1889 (Now section 16(1) of the Interpretation Act, 1978).

(B) Revival

If one Act is repealed by a second Act which is again repealed by a third Act, the
first Act is not revived unless the third Act makes an express provision to that effect.
Section 6(a) and (7) of the General Clauses Act deal with revival of enactments.
Section 6(a) is wider in operation and covers what is more emphatically declared by
section 7.
Where a provision is repealed by substitution of another provision in its place
and afterwards the Act which makes the substitution is declared invalid, then the
question of revival of the original provision requires consideration of the fact that
whether the Act has been declared invalid for want of legislative competence or
otherwise.

(C) Saving of Rights Acquired

The General Clauses Act by clauses (c) to (e) of section 6 prevents the
obliteration of a statute in spite of its repeal to keep intact rights acquired or accrued
and liabilities incurred during its operation and permit continuance or institution of any
legal proceedings or recourse to any remedy which may have been available before the
repeal for enforcement of such rights and liabilities.
'Any investigation, legal proceeding, or remedy' saved by clauses (e) is only in
respect of any right and privilege 'acquired' or 'accrued' and any obligation, liability,
penalty. Forfeiture or punishment 'incurred' within the ambit of clauses (c) and (d) of
section 6. 'Anything done' under the statute will not be invalidated by section 6 but it
will be rendered abortive if no right was acquired or had accrued and no liability had
been incurred prior to repeal.
Rights and liabilities which are acquired or incurred under the general law which
is modified by a statute, the inquiry in respect of them should be as to how far the statute
is retrospective.
Saving of rights and liabilities is in respect of those rights and liabilities which
were acquired or incurred under a repealed statute and not under the general law which
is modified by a statute.
A distinction is drawn between a legal proceeding for enforcing a right acquired
or accrued and a legal proceeding for acquisition of a right. The former is saved by
section 6 of the General Clauses and not the latter.
In choate rights or liabilities i.e., the rights or liabilities which have accrued but
which are in the process of being enforced or are yet to be enforced are unaffected
because clause (c) clearly contemplates that there will be situations when an
investigation, legal proceeding or remedy may have to be continued or restored to
before the right or liability can be enforced.
It has been held that the right of a tenant, who had the land for a certain number
of years and who had personally cultivated the same for that period 'to be deemed to be
a protected tenant' under the provisions of a statute is an accrued right which will survive
the repeal of the statute.

VII. Subordinate Legislation under Repealed Stature

A statute after its repeal is as completely effaced from the statute book as
if it had never been enacted. Subordination legislation made under a statute also
ceases to have effect after the repeal of the statute. However, this result can be
avoided by insertion of saving clauses providing to the contrary.

UNIT – IV
4.1 STATUTES AFFECTING THE STATE

I. THE RULE OF COMMON LAW

We will discuss the rule of Common Law under two sub-heads:
A. General Principles
B. Extent of the rule

A. General Principles

The rule of English law is that no statute binds the Crows unless the Crown is
named therein either expressly or by necessary implication because a statute is
presumed to be enacted for the subjects and not for the King.
There is one exception to the rule which is that the Crown may be bound by
"necessary implication'. If it is manifest from the very terms of the statute, that it was
the intention of the Legislature that the Crown should be bound, then the result is the
same as if the Crown had been expressly named. It is, therefore, inferred that the Crown
by assenting to the law agreed to be bound by its provisions.
Lord COKE indicated three kinds of statutes which bound the King without
specially naming him:
1. Statutes for maintenance of religion, learning and the poor;
2. Statues for supression of wrong; and
3. Statutes that tend to perform the will of a founder or donor.

B. Extent of the Rule

The protection of the rule of presumption that the Crown is not bound by
statutes extends to three classes of persons:
(a) the Sovereign personally,
(b) his servants or agents acting as such, and
(c) persons, who though not strictly servants or agents
are considered to be in consimilicasu.
Persons in consimilicasu with servants of the Crown are persons who
though independent of the Crown perform, exclusively or to a limited degree,
the regal Governmental functions such as, the administration of justice, the
carrying on of war, the making of the treaties of peace, the repression of crime
etc.
Class (b) covers not only officers of the State with ministerial status but
all subordinated officials as also servants holding statutory offices.

2. The Rule in India

The common law rule that the Crown was not bound by a statute unless named
expressly or by necessary implication was applied by the Privy Council before the
Constitution was adopted. But it continued to apply to India even after the Constitution
in the form that the State is not bound by a statute unless it is so provided in the express
terms or by necessary implication.
Justice BACHAWAT observed: "Particular care should be taken in scrutinising
provisions of a taxing or penal Act. If the application of the Act leads to some absurdity,
that may be a ground for holding that the State is excluded from its operation by
necessary implication. If the only penalty for an offence is imprisonment, the State
cannot be convicted of the offence, for the State cannot be locked up in prison. If the
penalty for offence is fine and the fine goes to the consolidated fund of the state, it may
be presumed that the penal provision does not bind the State, for the legislature could
not have intended that the State will be the payer as well as the receiver of the fine.
Presumably, the union is not bound the Central Income-tax Act because it paid Income-
tax, it will be both the payer and receiver. Likewise, a State is prima facie not bound by
a State Agricultural Income-tax Act, where the tax is receivable by it. Moreover, cases
may conceivably arise where express provisions in a statute binding the State in respect
of certain specific matters may give rise to the necessary implication, that the State is
not bound in respect of other matters".
4.2 STATUTES AFFECTING JURISDICTION OF COURTS
 I. General Principles
Generals Principles regarding statutes affecting jurisdiction of courts will be
discussed under three sub-headings:
(A) Exclusion must be explicitly expressed or clearly implied
(B) Three classes of cases
(C) Cases of breach of statutory duty
(D) Omission to exercise statutory power

(A) Exclusion must be Explicitly Expressed or clearly Implied

The provisions excluding jurisdiction of civil courts and provisions conferring

jurisdiction on authorities other than civil courts are strictly construed.
There is a strong presumption that civil courts have jurisdiction to decide all
question of civil nature. Therefore, the exclusion of jurisdiction of civil courts is not to
be readily inferred and such exclusion must either be 'explicitly expressed or clearly
implied'. For a court which world otherwise have jurisdiction in respect of the subject-
matter concerned, ouster cannot be implied. Ouster must be express.
The existence of jurisdiction in civil courts to decide questions of civil nature is
the general rule and exclusion is an exception of this rule. Therefore, the burden of proof
to show that jurisdiction is excluded in any particular case is on the party who raises
such a contention.
The civil courts are courts of general jurisdiction and people have a right, unless
expressly or impliedly barred, to insist for free access to the courts of general
jurisdiction of the State. On this basis only the rule is made that exclusion of jurisdiction
of civil courts is not to be readily inferred.
Criminal courts are also courts of general jurisdiction and exclusion of
jurisdiction of ordina by criminal courts can be brought about by setting up courts of
limited jurisdiction in respect of the limited field, but only if the vesting and the exercise
of that limited jurisdiction is clear and operative and there is an adequate machinery for
the exercise of limited jurisdiction.

(B) Three Classes of Cases

"There are three classes of cases in which a liability might be established,

founded upon statute. One is where there was a liability existing at common law,
and that liability is affirmed by a statute which gives a special and peculiar form
of remedy different from the remedy which existed at common law; there, unless
the statute contains words which expressly or by necessary implication exclude
the common law remedy, the party suing has his election to pursue either that or
the statutory remedy. The second class of cases is, where the statute gives the
right to sue merely, but provides no particular form of remedy; the party can only
proceed by action at common law. But there is a third class, viz., where a liability
not existing at common law is created by a statute which at the same time gives
a special and particular remedy for enforcing it – The remedy provided by the
 statute must be followed, and it is not competent to the party to pursue the course
applicable to cases of the second class".
A statute falling in the second of three classes of cases mentioned by
WILLES, J.prescribes no special remedy and whether it creates new rights and
liabilities or regulars the already existing ones, the normal remedy through the
medium of civil courts, which are courts of general jurisdiction remains always
open.
For the first and third of three classes of cases, it has to be ascertained
whether the statute in question deals with and regulates an already existing right
or liability or whether it creates a new right or liability which has no existence
apart from the statute. If the statute is of the first category, the special remedy
provided therein, subject to any provision for the exclusion of ordinary remedy,
will only be construed as an alternative one.
If the statute is of the third category, the remedy will be construed as
exclusive even though the statute makes no express provision for exclusion of
ordinary remedy. Therefore, the mere fact that a statute provides for certain
remedies does not by itself exclude the jurisdiction of civil courts.
However, where a new right or liability is created by a statute which gives
a special remedy for enforcing it, the ordinary remedy of approaching the civil
court is impliedly excluded.
A good illustration is furnished by the Industrial Disputes Act, 1947. This
Act creates new rights and obligations and provides machinery for adjudication
of disputes pertaining to them. In Premier Automobiles' case it was held by the
Supreme Court that if an industrial dispute relates to the enforcement of a right
or an obligation created under the Act then the only remedy available to the suitor
is to get an adjudication under the Act.

(C) Cases of Breach of Statutory Duties

There is no universal rule by reference to which the question of

maintainability of a civil action can infallibly be answered.
In the words of Lord TENTERDEN, C.J., "Where an Act creates an
obligation and enforces the performance ina specified manner, we take it to be a
general rule that performance can notbe enforced in any other manner. If an
obligation is created but no mode of enforcing its performance is ordained, the
common law may, in general find a mode suited to the particular nature of the
case".

(D) Omission to Exercise Statutory power

Subject to exceptional cases, the normal rule is that an omission by a

public authority to exercise a statutory power conferred for the benefit of the
public does not give rise to breach of duty sounding damages. Minimum
preconditions for basing a duty of care upon the existence of statutory power in
respect of an omission to exercise the power, if it could be done at all, were:
 (a) That in the circumstances it would have been irrational for the authority
not to have exercised the power, so that in effect there was a public law duty to act and
(b) That there were exceptional grounds to hold that the policy of the statute
conferred a right to compensation on persons who suffered loss if the power was not
exercised.

II. The Extent of Exclusion

(A) Construction of Exclusionary Clauses

The absence of a provision to enable an authority or tribunal for holding an

inquiry on a particular question is indicative that jurisdiction of civil courts on that
question is not excluded. It has been held that the very provision setting up hierarchy of
judicial tribunals for determinination of a question is sufficient in most cases for
inferring that the jurisdiction of the civil courts to try the same matter is barred.
It has been held in a case that when jurisdiction of civil courts on a particular
matter is excluded by transferring that jurisdiction from civil courts to tribunals or
authorities, it is presumed that such tribunals or authorities can draw upon that
principles of procedure in Civil Procedure Code, though not expressly made applicable,
to ensure fair procedure and just decision unless such principles are in consistent with
the provisions of the Act constituting them.
In cases where jurisdiction is excluded by use of prima facie comprehensive
language, it is open to civil courts which are courts of general jurisdiction to decide
whether a court, or tribunal or authority having limited jurisdiction has acted in excess
of its statutory powers. On matters on which the jurisdiction of the civil courts is
excluded, neither consent of the parties nor an order of the special tribunal which has
jurisdiction to decide those matters, can confer jurisdiction on the civil courts.

(B) Cases of Nullity

A question is often asked, "when can order passed by a tribunal or authority of

limited jurisdiction be held to be a nullity?" "The answer is supplied by the original or
pure theory of jurisdiction. The jurisdiction of a tribunal is determinable at the
commencement of a proceeding and if jurisdiction is properly assumed any order passed
thereafter will be within jurisdiction and conclusive though it may be erroneous in fact
or law. The pure theory of jurisdiction gave place to modern theory of jurisdiction
according to which defects of jurisdiction can arise even during or at the conclusion of
a proceeding. The courts make a distinction between jurisdictional questions of fact or
law and questions of fact or law which are not jurisdictional. If a question of fact or law
is jurisdictional, the tribunal though competent to inquire into that question cannot
decide it conclusively, and a wrong determination of such a question results in making
the final decision in excess of jurisdiction. But if a question of fact or law is non-
jurisdictional, the tribunal's decision is final and conclusive. In other words, it can be
said that a tribunal cannot by a wrong determination of a jurisdictional question of fact
or law exercise a power which the legislature did not confer upon it". However, in this
theory the demarcation between jurisdictional and non-jurisdictional questions of fact
or law is not clear.

In UjjamBaiv.State of U.P. it was held that an adjudication by a tribunal of

limited jurisdiction is void, when.
a) action is taken under an ultra vires statute;
b) the subject-matter of adjudication is beyond its competence or the order
passed is such which it has no authority to pass;
c) the adjudication is procedurally ultra vires being in violation of
fundamental principles of judicial procedure, and
d) jurisdiction is assumed by wrongly decided jurisdictional questions of
law or fact.

A consideration of the following points is relevant here:

(i) An exclusionary clause using the formula 'an order of the tribunal under
this Act shall not be called in question in any court ineffective to prevent the
calling in question of an order of the tribunal if the order is really not an order
under the Act but a nullity.
(ii) Cases of nullity may arise when there is lack of jurisdiction at the stage of
commencement of enquiry e.g., when

a) authority is assumed under an ultra vires statute;

b) tribunal is not properly constituted;
c) the subject-matter or the parties are such over which the tribunal has no
authority to inquire; and
d) there is want of essential preliminaries prescribed by the law for
commencement of the inquiry.
(iii) Cases of nullity may also arise during the course or at the conclusion of
the inquiry. These cases are also cases of want of jurisdiction if the word
'jurisdiction' is understood in a wide sense. Some examples of these cases are:

a) when the tribunal has wrongly determined a jurisdictional question of

fact or law;
b) when it has failed to follow the fundamental principles of judicial
procedure;
c) when it has violated the fundamental provisions of the Act;
d) when it has acted in bad faith; and
e) when it grants a relief or makes an order which it has no authority to grant
or make."
Later on, another category (f) was also added after category(e) i.e.,
f) when by misapplication of the law it has asked itself the wrong question.
 When a tribunal is given authority to decide conclusively questions of
fact which are apparently jurisdictional, its determination cannot be challenged
on the ground that those questions have been wrongly decided because in reality
those questions are not jurisdictional.

(C) Rule of Conclusive Evidence

By enacting rules of conclusive evidence or conclusive proof, the

legislature may make certain matters non-justiciable. For example, if by
legislative command proof of A is made conclusive evidence or conclusive proof
of B, the moment existence of A is established the Court is bound to regard the
existence of B as conclusively established and evidence cannot be let in to show
the non-existence of B. In effect the existence or non-existence of B after proof
of A ceases to be justiciable.

The effect of a conclusive evidence clause is subject at least to two

qualifications:

(i) A conclusive evidence clause may be held to be invalid as an

unreasonable restriction of the fundamental rights.
(ii) The insertion of such clauses in statutes conferring power may fail
to shut out basic defect of jurisdiction in exercise of the power. It may
also be ineffective to bar an attack on the ground of fraud or colourable
exercise of power.

III. Exclusion of jurisdiction of Superior Courts

The jurisdiction conferred by the Constitution can be taken away only by

amending the Constitution and not by statutory enactments.
In KilhotaHollohon v. Zachilhu it has been held that even a provision in
the Constitution conferring finality to the decision of an authority is not
construed as completely excluding judicial review under Articles 136,226 and
227 of the Constitution but limiting it to jurisdictional errors viz., infirmities
based on violation of constitutional mandate, mala fides, non-compliance with
rules of natural justice and perversity.
If the Legislature states that the decision or order of a court or tribunal
shall be final and conclusive, the remedies available under the Constitution
remain unfettered.
The High Courts of India apart from exercising supervisory powers under
the Constitution, exercise a similar power under section 115 of the Code of Civil
Procedure, 1908, over all subordinate courts. This power of revision under
section 115, which can be excluded by legislative enactments, is construed as
not readily excluded except by express provision to that effect.
 The appellate and revisional jurisdiction of superior courts is not taken as
excluded simply because the subordinate court exercises a special jurisdiction.
4.3 STRICT CONSTRUCTION OF TAXING STATUTES

I. Strict Construction of Taxing Statutes

(A) Taxing Statutes

A tax is imposed for raising general revenue of the State for public purposes. In
contrast to tax, a fee is imposed for rendering services and bears a broad co-relationship
with the services rendered.
Taxes are distributed between the Union and States by various entries in List I
and List II of the Constitution. Parliament can under its residuary power in entry 97 of
List I levy a tax not mentioned in these lists.
A taxing statute means a statute or an Act making compulsory imposition
whether of tax or fee. There are following three stages in the imposition of tax:
a) declaration of liability in respect of persons or property;
b) assessment of tax that qualifies the sum which the person liable has to
pay;
c) methods of recovery if the person taxed does not voluntarily pay.

(B) General Principle of Strict Construction

A taxing statute is to be strictly construed. In the words of Lord CAIRNS:

"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 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".
There is nothing like implied power to tax. The source of power which
does not specifically speak of taxation cannot be interpreted by expanding its
width as to include therein the power to tax by implication or by necessary
inference.
The judicial opinion of binding authority flowing from several
pronouncements of the Supreme Court has settled the following principles:-
1) in interpreting a taxing statute, equitable considerations are entirely out
of place. Taxing statutes cannot be interpreted on any presumption or assumption. A
taxing statute has to be interpreted in the light of what is clearly expressed. It cannot
import provisions in the states so as to supply any deficiency. It cannot imply anything
which is not expressed.
 2) Before taxing any person it must be shown that he falls within the ambit
of the charging section by clear words used in the section, and
3) If the words are ambiguous and open to two interpretations, the benefit
of interpretation is to be given to the subject.
There is nothing unjust in the tax payer escaping if the letter of the law
fails to catch him on account of the legislature's failure to express itself clearly.
Although normally a taxing statute is to be strictly construed but when the
statutory provision is reasonably akin to only one meaning, principle of strict
construction may not be adhered to.
Provisions relating to fiscal statutes are required to be strictly construed
and there is no scope for looking to the unexpressed intendment.
The benefit of this interpretation is given to the subject only when the
words used are ambiguous and reasonably open to two interpretations. If the
legislature fails to express itself clearly and the tax-payer escapes by not being
brought within the letter of the law, no question of unjustness as such arises.
Another important principle pertinent here is that of avoidance of double
taxation by the same Act. The principle is that if the words of the Act on one
construction result in double taxation of the same income, that result will be
avoided by adopting another construction which may reasonably be open. On
the basis of this general rule it is said that several heads of income mentioned in
the income-tax laws are mutually exclusive and a particular income can come
under only one of the hands.
The rule of avoidance of double taxation is merely a rule of construction,
therefore, it ceases to have application when the legislature expressly enacts a
law which results in double taxation of the same income. The law so made
cannot be held invalid merely on the ground that it results in double taxation. In
the absence of clear provisions stipulating double or multiple levies, the courts
would learn in favour avoiding double taxation.
Another important principle relating to the income-tax Act is that the
charging section and the computation provisions together constitute an
integrated code. It has been held that when there is a case to which the
computation provisions cannot apply at all, it can be concluded that such a case
was not intended to be brought within the charging section.
The Court-fees Act is also strictly construed. If the fee is heavy, the Act
may seriously restrict the rights of a person to seek his remedies in a court of
justice and as access to justice is the basis of the legal system, in a case where
there is reasonable doubt, the benefit of construction must go to him who says
that the lesser court-fee alone be paid.
The words 'shall presume' used in a taxing Act to show an infringement
of some provision which subjects the assessee to a penalty are construed to
convey a rebuttable presumption.

(C) Qualifications of Rule of Strict Construction

 When the statutory provisions is reasonably open to only one meaning, no
question of strict construction of taxing statute arises. Strict construction of a taxing
statue does not mean that where the subject falls clearly within the letter of law, the
court can avoid the tax by putting a restricted construction on the basis of some
supposed hardship or on the ground that the tax or penalty imposed is heavy or
oppressive. Where two view are possible, the one in favour of the assessee must be
adopted. The interpretation favouring the assessee which has been acted upon and
accepted by Revenue for a long period should not be disturbed except for compelling
reasons.
When the intention to tax is clear, it cannot be defeated by a mere defect in
phraseology on the ground that the provision could have been more artistically drafted.
Where the literal interpretation leads to absurd or unintended results, the
language of the statute can be modified to accord with the legislative intention and to
avoid absurdity also applies in interpreting a taxing statue.
The object of the legislature has to be kept in view and a construction consistent
with the object has to be placed on the words used if there be ambiguity, is also
applicable in constructing a taxing statement.
A taxing statute must be construed reasonably and receive purposive
construction so as to give effect to purport and object they seek to achieve. The Interest
Tax Act is a taxing statute. It has been held that the Act must receive purposive
construction and the Union of India cannot direct or permit the bankers or the financial
institutions to raise interest.
A provision of exemption from tax in a fiscal statute is to be strictly construed. It
is a well-known principle that a person who claims an exemption has to establish it and
the rule of strict construction does not negative its application. There is ample authority
for the view that this principle applies to exemptions granted in taxing law as
well. There are two opinions regarding construction of exemptions:
1) One view says that an exemption in case of ambiguity should be liberally
construed in favour of the subject confining the operation of the duty;
2) Second view says that exemptions from taxation have a tendency to
increase the burden on the other members of society and should, therefore,
be deprecated and construed in case of doubt against the subject.
Exemptions which are made with beneficient object should be liberally
construed.

II. Evasion of Statutes

In the words of LINDLEY, L.J. : "It is permissible to evade an Act of parliament

in the sense that a person may not do that which the Act prohibits but he is free to do
any thing which though equally advantageous to him as that which is prohibited is
nevertheless out side the prohibition, penalty or burden imposed by the Act."
If a statue prohibits the doing A, the courts are powerless to extend the
prohibition to cover B when the legal significance of A and B are different and distinct
even if both A and B in substance produce similar results.
 It is not permissible to evade an act of Parliament by resorting to a fraudulent
device or by covering the reality by a non-genuine transaction, for example, if a person
does an Act which is really A, but covers the reality by giving to it the colour B, the
courts will go behind the form and enforce the prohibition.

The word 'evade' is ambiguous in nature. It may mean either of two things:

It may mean an evasion of the Act by something which, while it evades the Act,
is within the sense of it or it may mean an evading of the Act by doing something to
which the Act does not apply.
The word 'evade' is also capable of being used in two senses. One sense suggests
under-hand dealing and another sense means nothing more than the intentional
avoidance of something disagreeable.

A person is free to arrange his business in such a way so that he is able to avoid
a law and its evil consequences so long as he does not break that or any other law.
An interpretation leading to wide-scale evasion of duty should be avoided and a
user-friendly interpretation should be avoided.
When a genuine transaction not prohibited by law reduces tax liability, it is not
an attempt to evade tax but only a legal device to reduce tax liability to which every tax
payer is entitled. When a method or device is adopted to reduce tax liability, its
effectiveness depends not upon considerations of morality but on the operation of the
taxing Act.

Acceptable tax mitigation and unacceptable tax avoidance are two distinct
things. Acceptable tax mitigation includes cases in which the tax payer takes advantage
of law to plan his affairs so as to minimize the incidence of tax. Whereas "unacceptable
tax avoidance typically involves the creation of complex artificial structures by which,
as though by wave of a magic wand the tax-payer conjures out of the air a loss or again
or expenditure or whatever it may be which other-wise would never have existed. These
structures are designed to achieve an adventitious tax benefit for the tax payer and in
truth are no more than raids on the public funds at the expense of the general body of
tax-payer, and as such are unacceptable.

Now the courts have reached the extent of not recognizing tax avoidance
schemes or devices even if they are strictly not non-genuine. This approach to tax-
avoidance schemes has been adopted in India also.
4.4 REMEDIAL AND PENAL STATUES

I. Distinction between Remedial and Penal Statutes

Remedial statutes are also known as welfare, beneficient or social justice

oriented legislation. Penal statutes are those which provide for penalties for
disobedience of the law and are directed against the offender in relation to the State by
making him liable to imprisonment, fine, forfeiture or other penalty.
 Every modern legislation is actuated with some policy and has some beneficial
object behind it. There are certain legislations which are directed to cure some
immediate mischief and bring into effect some type of social reform by ameliorating
the condition of certain class of persons who according to present day notions may not
have been fairly treated in the past. Such legislations prohibit certain acts by declaring
them invalid and provide for redress or compensation to the persons aggrieved. If a
statute of this nature does not make the offender liable to any penalty in favour of the
State, the legislation will be classed as remedial.
A remedial statue receives a liberal construction in favour of the class or persons
for whose benefit the statute was enacted while penal statutes is strictly construed in
favour of the alleged offender.
A statute may in certain aspects be a penal enactment and in certain others a
remedial one. In respect of those provisions which are sanctioned on the pain of
punishment for a crime the rule of strict construction in the limited sense may be
applied. At any rate, as undue effort to construe such a provision liberally to promote
the beneficient purpose behind it may be effectively counter balanced on consideration
that a breach thereof leads to penal consequences.

II. Liberal Construction of Remedial Statues

On construing a remedial statute the courts ought to give to it "the widest

operation which its language will permit. They have only to see that the particular case
is within the mischief to be remedied and falls within the language of the enactment."
The labour and welfare legislations should be broadly and liberally construed
and while construing them due regard to the Directive Principles of State Policy (part
IV) and to any international convention on the subject must be given by the courts.

III. Strict Construction of Penal Statutes

(i) General Principles

The principle that a statute enacting an offence or imposing a penalty is to be

strictly construed is not of universal application which must necessarily be observed in
every case. It is now only of limited application and it serves in the selection of one
when two or more constructions are reasonably open. The rule was originally evolved
to mitigate the rigour of monstrous sentences for trivial offences and although that
necessity and that strictness has now almost vanished, the difference in approach made
to a penal statute as against any other statute still persists.
The rule stated by Chief Justice MAHAJAN is also relevant here. "if two
possible and reasonable constructions can be put upon a penal provision, the Court must
lean towards that construction which exempts the subject from penalty rather than the
one which imposes penalty. It is not competent to the Court to stretch the meaning of
an expression used by the Legislature in order to carry out the intention of the
Legislature."
Interpretation of penal provisions must be in consonance with the principles
underlying fundamental rights. Any provision which visits an accused with adverse
consequences without affording him any remedy to disprove an item of evidence which
stands against his innocence, is inconsistent with the philosophy enshrined in At. 21. It
was held by the Supreme Court the court should so interpret such a provision as to dilute
it to make it amenable to Article 21 of the Constitution.
Such drastic penal statutes as deal with crimes of aggravated nature which could
not effectively be controlled by the ordinary criminal law should be more strictly
construed.
In applying and interpreting a penal statute, public policy is also taken into
consideration.

The following are some of the propositions important in relation to strict

construction of penal statues:-
i) If the prohibitory words in their known signification cover only some
class of persons or some well defined activity, their import cannot be extended to cover
other persons or other activity on considerations of policy or object of the statute.
ii) If the prohibitory words are reasonably capable of having a wider as also
a narrower meaning and if there is no indication in the statute or in its policy or object
that the words were used in the wider sense, they would be given the narrower
meaning. Where, on the other hand, after full consideration it is found that the
prohibitory words are equally open to two constructions, one of which covers the
subject and the other does not, the benefit of construction will be given to the subject.
iii) If the prohibitory words in their own signification bear a wider meaning
which also fits in with the object or policy of the statute, the words will receive that
wider meaning and their import will not be restricted even if in some other context they
can bear a narrower meaning.
iv) If the literal reading of the prohibitory words produces an unintelligible
or non-sensual or socially harmful result, but the statute read as a whole gives out its
meaning clearly, effect will be given to that meaning by curing a mere defect in
phraseology and even by rejecting words as surplusage.
A provision cannot be presumed to include something on mere likelihood of
evasion of that provision.

IV. Mens Rea in Statutory Offences

General Principles

The principle related to means rea is expressed in the maxim 'Actus non
facitreum nisi mens sit tea' which means that the existence of a guilty intent is an
essential ingredient of a crime at common law.
Mensrea is the state of mind stigmatized as wrongful by the criminal law which
when compounded with the relevant prohibited conduct constitutes a particular
crime. Crimes involving mensrea are of two types :
a) Crimes of basic intent, and
b) Crimes of specific intent.

In crimes of basic intent, the mensrea does not go behind the

actusreus. While in crimes of specific intent, mensrea goes beyond the
 contemplation of the prohibited act and foresight of its consequences and has a
purposive element.
Ignorance of law is no defence in criminal law but if the law is not
published in any manner whatsoever, to enable a person to find it out by
appropriate inquiry, the absence of knowledge of prohibition may afford a
defence of absence of mensrea.
The offences created by statutes either involve the existence of mensrea
as an essential element of the offence or the statute dispenses with the mensrea
and creates strict liability for the offences. Therefore, when the offence is
committed the question arises as to the type of offence, which can be answered
on the true construction of the statute. The rule given by Justice WRIGHT is
important here: "There is a presumption that mensrea, an evil intention, or
knowledge of the wrongfulness of the act, is an essential ingredient of every
offence, but that presumption is liable to be displaced either by the words of the
statute creating the offence of by the subject-matter with which it deals and both
must be considered."

V. Vicarious Liability in Statutory Offences

The maxims "respondent superior" and "qui facit per aliumfacit per se" have no
place in the criminal law. The general rule of criminal law is that criminal liability in a
master that might result either as a principle or an accessory, springs from authorization
and not simply from the relationship of master and servant. However, the Legislature
may in an infinite variety of ways provide that there is to be criminal liability in one
who has personally no mensrea or in one who has not committed actusreus.
The statutory provision may also be so drafted that it only makes the employer
liable for the offence but does not make the employee liable for whose act or default the
employer is made liable. It has been held that where the nature of the activity makes
the premises, where it is carried on, a major hazard site, the Parliament may impose
upon the employer a duty, failure of which makes him liable for a criminal offence. The
duty imposed is ' to conduct his undertaking in such a way' that subject to reasonable
practicability, it did not create risks to people's health and safety. The employer may
become liable for the offence irrespective of the question that the risk originated not
because of some lapse of the employer but of some other person over whom he had no
control.
In such cases the statute makes the employer liable for the offence though he has
personally no mensrea or has not committed any actusreus as the duty is laid on the
employer himself by reference to a certain kind of activity carried on by him.

VI. Mens Rea Under the Indian Penal Code

In India, the general law as to crimes is codified in the Indian Penal Code. The
maxim "actus non facitreum nisi mens sit rea" has no application to offences under the
Code. Definitions of 'Crime' in the various sections of the Code contains specification
of the mental state which is required to be established as a necessary constituent of the
crime. The Supreme Court observed : "Under the Indian Penal Law guilt of almost all
the offences is fastened either on the ground of 'intention' or 'knowledge' or 'reason to
believe'.

UNIT -V
PRINCIPLES OF LEGISLATION

5.1 The Principle of Utility

THE PUBLIC GOOD ought to be the object of the legislator; GENERAL
UILITY ought to be the foundation of his reasonings. To know the true good of the
community is what constitutes the science of legislation; the art consists in finding the
means to realize that good.
The principle of utility, vaguely announced, is seldom contradicted; it is even
looked upon as a sort of common-place in politics and morals-But this almost universal
assent is only apparent. The same ideas are not attached to this principle; the same
value is not given to it; no uniform and logical manner of reasoning results from it.
To give it all the efficacy which it ought to have, that is, to make it the foundation
of a system of reasonings, three conditions are necessary.

First,-To attach clear and precise ideas to the word utility, exactly the same with
all who employ it.
Second,- To establish the unity and the sovereignty of this principle, by
rigorously excluding every other. It is nothing to subscribe to it in general; it must be
admitted without any exception.
Third,- To find the processes of a moral arithmetic by which uniform results
may be arrived at.
The causes of dissent from the doctrine of utility may all be referred to two false
principles, which exercise an influence, sometimes open and sometimes secret, upon
the judgments of men. If these can be pointed out and excluded, the true principle will
remain in purity and strength.
These three principles are like three roads which often cross each other, but of
which only one leads to the wished-for destination. The traveler turns often from one
into another, and loses in these wanderings more than half his time and strength. The
true route is however the easiest; it has mile-stones which cannot be shifted, it has
inscription, in a vuniversl language, which cannot be effeced; while the two false routes
have oly contradictory directions in enigmatical characters. But without abusing the
language of allegory, let us seek to give a clear idea of the true principle, and of its two
adversaries.
Nature has placed man under the empire of pleasure and of pain. We owe to
them all our ideas; we refer to them all our judgments, and all the determinations of our
life. He who pretends to withdraw himself from this subjection knows not what he
says. His only object is to seek pleasure and to shun pain, even at the even at the very
instant that he rejects the greatest pleasures or embraces pains the most acute. These
eternal and irresistible sentiments ought to be the great study of the moralist and the
legislator. The principle of utility subjects everything to these two motives.
 Utility is an abstract term. It expresses the property or tendency of a thing to
prevent some evil or to procure some good. Evil is pain, or the cause of pain. Good is
pleasure, or the cause of pleasure. That which is conformable to the utility, or the
interest of an individual, is what tends to augment the total sum of his happiness. That
which is conformable to the utility, or the interest of a community, is what tends to
augment the total sum of the happiness of the individuals that compose it.

A principle is a first idea, which is made the beginning or basis of a system of

reasonings. To illustrate it by a sensible image, it is a fixed point to which the first link
of a chain is attached. Such a principle must be clearly evident,-to illustrate and to
explain it must secure its acknowledgment. Such are the axioms of mathematics; they
are not proved directly; it is enough to show that they cannot be rejected without falling
into absurdity.
The logic of utility consists in setting out, in all the operations of the judgment,
from the calculation or comparison of pains and pleasures, and in not allowing the
interference of any other idea.

I am a partisan of the principle of utility when I measure my approbation or

disapprobation of a public or private act by its tendency to produce pleasure or pain;
when I employ the words just, unjust, moral, immoral, good, bad, simply as collective
terms including the ideas of certain pains or pleasures; it being always understood that
I use the words pain and pleasure in their ordinary signification, without inventing any
arbitrary definition for the sake of excluding certain pleasures or denying the existence
of certain pains. In this matter we want no refinement, no metaphysics. It is not
necessary to consult Plato, not Aristotle. Pain and pleasure are what everybody feels to
be such-the peasant and the prince, the unlearned as well as the philosopher.

He who adopts the principle of utility, esteems virtue to be a good only on

account of the pleasures which result from it; he regards vice as an evil only because of
the pains which it produces. Moral good is good only by its tendency to produce
physical good. Moral evil is evil only by its tendency to produce physical evil; but
when I say physical, I mean the pains and pleasures of the soul as well as the pains and
pleasures of sense. I have in view man, such as he is, in his actual constitution.

If the partisan of the principle of utility finds in the common list of virtues an
action from which there results more pain than pleasure, he does not hesitate to regard
that pretended virtue as a vice; he will not suffer himself to be imposed upon by the
general error; he will not lightly believe in the policy of employing false virtues to
maintain the true.
If he finds in the common list of offences some indifferent action, some innocent
pleasure, he will not hesitate to transport this pretended offence into the class of lawful
actions; he will pity the pretended criminals, and will reserve his indignation for their
persecutors.
5.2 The Ascetic Principle
 This principle is exactly the rival, the antagonist of that which we have just been
examining. Those who follow it have a horror of pleasure. Everything which gratifies
the senses, in their view, is odious and criminal. They found morality upon privations,
and virtue upon the renouncement of one's self. In one word, the reverse of the partisans
of utility, they approve everything which tends to diminish enjoyment, they blame
everything which tends to augment it.

This principle has been more or less followed by two classes of men, who in
other respects have scarce any resemblance, and who even affect a mutual
contempt. The one class are philosophers, the other devotees. The ascetic
philosophers, animated by the hope of applause, have flattered themselves with the idea
of seeming to raise above humanity, by despising vulgar pleasures. They expect to be
paid in reputation and in glory, for all the sacrifices which they seem to make to the
severity of their maxims. The ascetic devotees are foolish people, tormented by vain
terrors. Man, in their eyes, is but a degenerate being, who ought to punish himself
without ceasing for the crime of being born, and never to turn off his thoughts from the
gulf of eternal misery which is ready to open beneath his feet. Still, the martyrs to these
absurd opinions have, like all others, a fund of hope. Independent of the worldly
pleasures attached to the reputation of sanctity, these atrabilious pietists flatter
themselves that every instant of voluntary pain here below will procure them an age of
happiness in another life. Thus, even the ascetic principle reposes upon some false idea
of utility. It acquired its ascendancy only through mistake.

The devotes have carried the ascetic principle much further than the
philosophers. The philosophical party has confined itself to censuring pleasure; the
religious sects have turned the infliction of pain into duty. The stoics said that pain was
not an evil; the Jansenists maintained that it was actually a good. The philosophical
party never reproved pleasures in the mass, but only those which it called gross and
sensual, while it exalted the pleasures of sentiment and the understanding. It was rather
a preference for the one class, than a total exclusion of the other. Always despised or
disparaged under its true name, pleasure was received and applauded when it took the
titles of honour, glory, reputation, decorum, or self-esteem.
Not to be accused of exaggerating the absurdity of the ascetics, I shall mention
the least unreasonable origin which can be assigned to their system.
It was early perceived that the attraction of pleasure might seduce into pernicious
acts; that is, acts of which the good was not equivalent to the evil. To forbid these
pleasures, in consideration of their bad effects, is the object of sound morals and good
laws. But the ascetics have made a mistake, for they have attacked pleasure itself; they
have condenmned it in general; they have made it the object of a universal prohibition,
the sign of a reprobate nature; and it is only out of regard for human weakness that they
have had the indulgence to grant some particular exemptions.

5.3 The Different Kinds Of Pleasures And Pains

 We experience without cessation variety of sensations which do not interest us,
and which glide by without fixing our attention. Thus, the greater part of the objects
which are familiar to us no longer produce a sensation sufficiently vivid to cause us
either pain or pleasure. These names cannot be given except to sensations which attract
our attention; which make themselves noticeable in the crowd; and of which we desire
the continuance or the end. These pleasurable perceptions are either simple or complex:
simple, when they cannot be decomposed into others; complex; when they are
composed of several simple pains or simple pleasures, or perhaps of a mixture of
pleasures and pains. What determines us to regard several pleasures as a complex
pleasure, and not as so many simple pleasures, is the nature of the cause which excites
them. We are led to consider all the pleasures which are produced by the action of the
same cause as a single pleasure. Thus a theatrical show which gratifies many of our
senses at the same time by the beauty of decorations, music, company, dresses, and the
action of performers, constitutes a complex pleasure.
It has cost a great labour of analysis to prepare a complete catalogue of the simple
pleasures and pains. This catalogue had a dryness which will repulse many readers, for
it is not the work of a writer of romance, who only seeks to please and move; it is a bill
of particulars, it is the inventory of our sensations.

Simple pleasures

1st. Pleasures of Sense – Those which can be immediately referred to our organs
independently of all associations, viz., the pleasures of taste, of smell, of sight, of
hearing, of touch, especially the blessing of health, that happy flow of spirits, the
perception of an easy and unburdensome existence, which cannot be referred to any of
the senses in particular, but which appertains to all the vital functions; finally, the
pleasures of novelty, those which we experience when new objects are applied to our
senses. They do not form a separate class, but they play so conspicuous a part, that it is
necessary to mention them expressly.

2nd. Pleasures of Riches-meaning thereby that kind of pleasure which we derive

from the possession of a thing, which is a means of enjoyment or security,-a pleasure
which is mostly lively at the moment of acquisition.

3rd. Pleasures of Address-Those which result from some difficult to overcome,

from some relative perfection in the handling and employ of the instruments which aid
in the attainment of pleasure or utility. A person who touches a harpsichord, for
example, experiences a pleasure perfectly distinct from that of hearing the same piece
of music executed by another.

4th. Pleasures of Friendship- Those which accompany the persuasion of

possessing the good will of such and such individuals, and the right of expecting from
them, in consequence, spontaneous and gratuitous services.

5th. Pleasures of a good Reputation-Those which accompany the possession or

acquisition of the esteem and good will of the people about us the persons with whom
we may have relations or common interests; and as a fruit of this disposition on their
part, the right of expecting their voluntary and gratuitous services, should we happen to
need them.

6th. Pleasures of Power- Those which a man experiences who perceives in

himself the means of disposing others to serve him through their hopes or their fears;
that is, by the fear of some evil, or the hope of some good which he can do them.

7th. Pleasures of Piety-Those which accompany the persuasion of acquiring or

possessing the favour of God; and the power, in consequence, of expecting particular
favours from him,either in this life or in another.

8th. Pleasures of Benevolence-Pleasures which we are sensible of tasting, when

we contemplate the happiness of those who love us. They may also be called pleasures
of sympathy or pleasures of the social affections. Their force is more or less
expansive. They have the power of concentrating themselves into a narrow circle, or
of spreading over entire humanity. Benevolence extends itself to animals of which we
love the species or individuals; the sings of their happiness affect us agreeably.

9th. Pleasures of Malevolence-They result from the sight or the thought of pain
endured by those beings who do not love us, whether men or animals. They may also
be called pleasures of the irascible passions, of antipathy, or of the anti-social affections.

10th. When we apply our mental faculties to the acquisition of new ideas, and
discovers, or think we discover, interesting truths in the moral or physical sciences, the
pleasure which we experience may be called the pleasure of knowledge. The transport
of joy which Archimedes felt at the solution of a difficult problem, is easily understood
by all those who have applied themselves to abstract studies.

11th. When we have tasted such or such a pleasures, and in certain cases even,
when we have suffered such or such a pain, we love to retrace them exactly in the precise
order of all their circumstances. These are the pleasures of memory. They are as varied
as the recollections in which they originate.

12th. But sometimes memory suggests certain pleasures, which we arrange in a

different order, according to our desires; and to which we joint the most agreeable
circumstances we have noticed, either in our own life or in that of others. These are
pleasures of the imagination. The painter who copies after nature, represents the
operations of memory; he who selects groups here and there, and arranges them to suit
himself, represents the workings of the imagination. New ideas in the arts and sciences,
and all discoveries which interest our curiosity, contribute to the pleasures of the
imagination, which sees in these discoveries an extension of its field of enjoyments.

13th. The idea of a future pleasure, joined to the expectation of presently enjoying
it, constitutes the pleasure of hope.
 14th. Pleasures of Association-An object may be unable to give any pleasure in
itself; but if it is connected in the mindwith some other object which is agreeable, it
participates in the charm of that object. Thus the different incidents of a game of
chance, when we play for nothing, derive their interest from an association with the
pleasure of gaining.

15th. Lastly, there are pleasures founded upon pains. When one has suffered, the
cessation or diminution of the pain is itself a pleasure, and often a very lively one. These
may be called pleasures of relief, or of deliverance. They are as various as our pains.

Simple Pains
st
1 . Pains of Privations-These correspond to all the pleasures whose
absence excites a sentiment of chagrin. They exist in three principal
modifications. First, if we desire a certain pleasure, but have more fear of
wanting it than hope of obtaining it, the pain that results may be called pain of
desire, or of unsatisfied desire. Second, if we have had strong hopes of enjoying
the pleasure in question, but these hopes have suddenly failed, this privation is a
pain of disappointment. Third, if we have enjoyed a good, or, what amounts to
the same thing, if we have counted strongly upon its possession, and then lose it,
the sentiment which this loss produces is called regret. That languor of soul
described by the word ennui is a pain of privation which cannot be referred to
any particular object, but to the absence of every agreeable sensation.

2nd. Pains of Sense- There are nine kinds: those of hunger and thirst:
those of taste, or smell, of touch, produced by the application of substances
which excite disagreeable sensations; those of hearing and sight, produced by
sounds or images which offend those organs, independently of association;
excess of cold or heat-unless these pains ought to be referred to the sense of
touch; diseases of all kinds; finally, fatigue, whether of mind or body.

3rd.Pains of Mal-address-Those which are sometimes experienced in

fruitless attempts or laborious efforts to apply to their different uses the various
kinds of tools or instruments, whether of pleasure or pain.
4th.Pains of Enmity-Those which a man feels when he believes himself an
object of malevolence on the part of certain individuals, and apprehends that he
may be exposed in consequence to experience the practical effects of their hatred.

5th. Pains of a Bad Reputation-Those which a man feels when he believes

himself actually an object of the malevolence or contempt of the world which
surrounds him, or exposed to become so. They may also be called pains of
dishonor, or pains of the popular sanction.

6th. Pains of Piety-They result from the fear of having offended the
Supreme Being, and of incurring his chastisements, either in this life or in the
life to come. If they are thought to be well founded, they are called religious
fears,-if ill founded, they are denominated superstitious fears.
 7th. Pains of Benevolence-These are the pains which we experience at the
sight or thought of the suffering whether of men or animals. The emotions of
pity make us weep at the miseries of others, as well as at our own. They may
also be called pains of sympathy, pains of the social affections.

8th. Pains of Malevolence-These are the pains we experience at reflecting

on the happiness of those we hate. They may also be called pains of antipathy,
pains of the anti-social affections.

9th, 10th, and11th. The pains of memory, of the imagination, and of fear,
are the exact reverse and counterpart of the pleasures of corresponding names.

5.4 The Measure of Pleasures and Pains

The sole object of the legislator is to increase pleasures and to prevent pains; and
for this purpose he ought to be well acquainted with their respective values. As
pleasures and pains are the only instruments which he employs, he ought carefully to
study their power.
If we examine the value of a pleasure, considered in itself, and in relation to a
single individual, we shall find that it depends upon four circumstances,-
1st. Its Intensity.
2nd. Its Duration
3rd. Its certainty.
4th. Its Proximity.
The value of a pain depends upon the same circumstances.
But it is not enough to examine the value of pleasures and pains as if they were
isolated and independent. Pains and pleasures may have pains and pleasures as their
consequences. Therefore, if we wish to calculate the tendency of an act from which
there results an immediate pain or pleasure, we must take two additional circumstances
into the account viz.
5th. its productiveness.
6th. its purity
A productive pleasure is one which is likely to be followed by other pleasures of
the same kind.
A productive pain is one which is likely to be followed by other pains of the
same kind.
A pure pleasure is one which is not likely to produce pains.
A pure pain is one which is not likely to produce pleasures.
When the calculation is to be made in relation to a collection of individuals, yet
another element is necessary.-
7th.Its extent.
That is, the number of persons who are likely to find themselves affected by this
pain or pleasure.
When we wish to value an action, we must follow in details all the operations
above indicated. These are the elements of moral calculation; and legislation thus
becomes a matter of arithmetic. The evil produced is the outgo, the good which results
is the income. The rules of this calculation are like those of any other. This is a slow
method, but a sure one; while what is called sentiment is a prompt estimate, but apt to
be deceptive. It is not necessary to recommence this calculation upon every
occasion. When one has become familiar with the process; when he has acquired that
justness of estimate which results from it; he can compare the sum of good and of evil
with so muchpromptitude as scarcely to be conscious of the steps of the calculation. It
is thus that we perform many arithmetical calculations almost without knowing it. The
analytical method, in all its details, becomes essential, only when some new or
complicated matter arsis; when it is necessary to clear up some disputed point, or to
demonstrate a truth to those who are yet unacquainted with it.
This theory of moral calculation, though never clearly explained, has always
been followed in practice; at least, in every case where men have had clear ideas of their
interest. What is it, for example, that makes up the value of a landed estate? It is not
the amount of pleasure to be derived from it? and does not this value vary according to
the length of time for which the estate is to be enjoyed according to the nearness or the
distance of the moment when the possession is to begin; according to the certainty or
uncertainty of its being retained?
Errors, whether in legislation or the moral conduct of men, may be always
accounted for by a mistake, a forgetfulness, or a false estimate of some one of these
elements, in the calculation of good and evil.
5.5 Analysis of Political Good and Evil how they are diffused through society (or)
Political good and evil
It is with government as with medicine; its only business is the choice of
evils. Every law is an evil, for every law is an infraction of liberty. Government, I
repeat it, has but the choice of evils. In making that choice, what ought to be the object
of the legislator? He ought to be certain of two things: 1st that in every case the acts
which he undertakes to prevent are really evils; and, 2nd, that these evils are greater than
those which he employs to prevent them.
He has then two things to note-the evil of the offence, and the evil of the law; the
evil of the malady, and the evil of the remedy.
An evil seldom comes alone. A portion of evil can hardly fall upon an individual,
without spreading on every side, as from a centre. As it spreads, it takes different
forms. We see an evil of one kind coming out of an evil of another kind; we even see
evil coming out of good, and good out of evil. It is important to know and to distinguish
all these kinds of evil, for in this the very essence of legislation consists. But., happily,
these modifications are few in number, and their differences are strongly marked. Three
principal distinctions, and two sub-divisions, will be enough to solve the most difficult
problems.

Evil of the first order.

Evil of the second order.
Evil of the third order
Primitive Evil-Derivative Evil
Immediate Evil-Consequential Evil
Extended Evil-Divided Evil
 Permanent Evil-Evanescent Evil

These are the only new terms which it will be necessary to employ to express the
variety of forms which evil may take.
The evil resulting from a bad action may be divided into two principal parts:-1st,
that which falls immediately upon such and such assignable individuals, I call evil of
the first order; 2nd, that which takes its origin in the first, and spreads through the entire
community, or among an indefinite number of non-assignable individuals, I call evil of
the second order.
Evil of the first order may be distinguished into two branches, viz., 1st, the
primitive evil, which is peculiar to the individual injured, to the first sufferer-the person,
for example, who is beaten or robbed; 2nd, the derivative evil, that which falls upon
certain assignable individuals, as a consequence of the primitive evil, by reason of some
relation between them and the first sufferer, whether it be a relation of personal interest
or merely of sympathy.
Evil of the second order may also be distinguished into two branches: 1st alarm;
2nd, danger. Alarm is a positive pain, a pain of apprehension, the apprehension of
suffering the same evil which we see has already fallen upon another. Danger is the
probability that a primitive evil will produce other evils of the same kind.
These two branches of evil are closely connected, yet they are so distinct as to
be capable of a separate existence. There may be alarm where there is no danger, there
may be danger where is no alarm. We may be frightened at a conspiracy purely
imaginary; we may remain secure in the midst of a conspiracy ready to break out. But,
commonly, alarm and danger go together, as natural effects of the same cause. The evil
that has happened makes us anticipate other evils of the same kind, by rendering them
probable. The evil that has happened produces danger; danger produces alarm. A bad
action is dangerous as an example; it prepares the way for other bad actions - 1st, by
suggesting the idea of their commission, 2nd, By augmenting the force of temptation.
Let us follow the train of thought which may pass in the mind of an individual
when he hears of a successful robbery. Perhaps he did not know of this means of
subsistence, or never thought of it. Example acts upon him like instruction, and gives
him the first idea of resorting to the same expedient. He sees that the things is possible,
provided it be well managed; and, executed by another, it appears to him less difficult
and less perilous than it really is. Example is a track which guides him along where he
never would have dared to be the first explorer. Such an example has yet another effect
upon him, not less remarkable. It weakens the strength of the motive which restrain him.
The fear of the laws loses a part of its force so long as the culprit remains unpunished;
the fear of shame diminishes in the same degree, because he sees accomplices
who afford him an assurance against the misery of being utterly despised. This is so
true, that wherever robberies are frequent and unpunished, they are as little a matter of
shame as any other means of acquisition. The early Greeks had no scruples about them;
they are gloried in by the Arabs of the present day.
Let us apply this theory. You have been beaten, wounded, insulted, and robbed.
The amount of your personal sufferings, so far as they relate to you alone, forms the
primitive evil. But you have friends, and sympathy makes them share your pains. You
have a wife, children, parents; a part of the indignity which you have suffered, of the
affront to which you have been subjected, falls upon them. You have creditors, and the
loss you have experienced obliges them to wait. All these persons suffer a less or greater
evil, derivative from yours; and these two portions of evil, yours and theirs, compose
together the evil of the first order.
But this is not all. The news of the robbery, with all its circumstances, spreads
from mouth to mouth. An idea or danger springs up, and alarm along with it. this alarm
is greater or less, according to what is known of the character of the robbers, of the
personal injuries they have inflicted, of their means and their number; according as we
are near the place or distant from it; according to our strength and courage; according
to our peculiar circumstances, such as travelling alone, or with a family, carrying little
money with us, or being intrusted with valuable effects. This danger and alarm
constitute the evil of the second order.
If the evil which has been done to you is of a nature to spread of itself for
example, if you have been defamed by an imputation which envelopes a class of
individuals more or less numerous, it is no longer an evil simply private, it becomes an
extended evil. It is augmented in proportion to the number of those who participate in
it.
If the money of which you were robbed did not belong to you, but to a society,
or to the State, the loss would a divided evil. This case differs from the former in the
important circumstance, that here, the evil is diminished in proportion to the number
among whom it is shared.
If, in consequence of the wound you have received, you suffer an additional evil
distinct from the first, such as the abandonment of a lucrative business, the loss of a
marriage, or the failure to obtain a profitable situation, that is a consequential evil. A
permanent evil is that which, once done, cannot be remedied, such as an irreparable
personal injury, an amputation, death, and c. an evanescent evil is that which may pass
away altogether, such as a wound which may be healed, or a loss which may be entirely
made up.
These distinctions, though partly new, are far from being useless subtleties. It is
only by their means that we can appreciate the difference of malignity in different
offences, and regulate accordingly the proportion of punishment.
This analysis will furnish us a moral criterion, a means of decomposing human
actions, as we decompose the mixed metals, in order to discover their intrinsic value,
and their precise quantity of alloy.
If among bad actions, or those reputed to be so, these are some which cause no
alarm, what a difference between these actions and these which do cause it! The
primitive evil affects but a single individual; the derivative evil can extend only to a
small number; but the evil the second order may embrace the whole of society. Let a
fanatic commit an assassination on account of what he calls heresy, and the evil of the
second order, especially the alarm, may exceed many million times the evil of the first
order.
There is a great class of offences of which the entire evil consists in danger. I
refer to those actions which, without injuring any particular individual, are injurious to
society at large. Let us take, for an example, an offence against justice. The bad conduct
of a judge, of an accuser, or a witness, causes a criminal to be acquitted. Here is
doubtless an evil, for here is a danger; the danger that impunity will harden the offender,
and excite him to the commission of new crimes; the danger of encouraging other
offenders by the example and the success of the first. Still, it is probable that this danger,
great as it is, will escape the attention of the public, and that those who by the habit of
reflection are capable of perceiving it, will not drive from it any alarm. They do not fear
to see it realized upon anybody.
But the importance of these distinctions can only be perceived in their
development. We shall presently see a particular application of them.

If we carry our views still further, we shall discover another evil, which may
result from an offence. When the alarm reaches a certain point, and lasts a long time,
the effect is not limited to the passive faculties of man; it extends to his active faculties;
it deadens them; it throws them into a state to torpor and decrepitude. Thus, when
vexations and depredations have become habitual, the discouraged labourer only works
to save himself from starvation; he seeks in idleness the only consolation which his
misfortunes allow; industry fails with hope, and brambles gain possession of the most
fertile fields. This branch of evil of the third order.

Whether an evil happens by human agency, or whether it results from an event

purely physical, all these distinctions are equally applicable.
Happily, this power of propagation and of diffusion does not appertain to evil
only. Good has the same prerogatives. Follow an analogous division, and you will see
coming out of a good action, a good of the first order, divisible into primitive and
derivative; and a good of the second order, which produces a certain degree of
confidence and security.
The good of the third order is manifested in that energy, that gaiety of heart, that
ardour of action, which remuneratory motives alone inspire. Man, animated by this
sentiment of joy, finds in himself a strength which he did not suspect.
The propagation of good is less rapid and less sensible than that of evil. The seed
of good is not so productive in hopes as the seed of evil is fruitful in alarms. But this
difference is abundantly made up for good is a necessary result of natural causes which
operate always; while evil is produced only by accident, and at intervals.
Society is so constituted that, in laboring for our particular good, we labour also
for the good of the whole. We cannot augment our own means of enjoyment without
augmenting also the means of others. Two nations, like two individuals, grow rich by a
mutual commerce; and all exchange is founded upon reciprocal advantages.
It is fortunate also that the effects of evil are not always evil. They often assume
the contrary quality. Thus, juridical punishments applied to offences, although they
produce an evil of the first order, are not generally regarded as evils, because they
produce a good of the second order. They produce alarm and danger, but for whom?
Only for a class evil-doers, who are voluntary sufferers. Let them obey the laws,and
they will be exposed neither to danger nor alarm.
We should never be able to subjugate, however imperfectly, the vast empire of
evil, had we not learned the method of combating one evil by another. It has been
necessary to enlist auxiliaries among pains, to oppose other pains which attack us on
every side. So, in the art of curing pains of another sort, poisons well applied have
proved to be remedies.
5.6 The Limits which Separate Morals from Legislation (or) Morals in
Legislation

MORALITY in general is the art of directing the actions of men in such

a way as to produce the greatest possible sum of good.
Legislation ought to have precisely the same object.
But although these two arts, or rather sciences, have the same end, they
differ greatly in extent. All actions, whether public or private, fall under the
jurisdiction of morals. It is a guide which leads the individual, as it were, by the
hand through all the details of his life, all his relations with his fellows.
Legislation cannot do this; and, if it could, it ought not to exercise a continual
interference and dictation over the conduct of men.
Morality commands each individual to do all that is advantageous to the
community, his own personal advantage included. But there are many acts useful
to the community which legislation ought not to command. There are also many
injurious actions which it ought not to forbid, although morality does so. In a
word, legislation has the same centre with morals, but it has not the same
circumference.
There are two reasons for this difference: 1st Legislation can have no
direct influence upon the conduct on men, except by punishments. Now these
punishments are so many evils, which are not justifiable except so far as there
results from them a greater sum of good. But, in many cases in which we might
desire to strengthen a moral precept by a punishment, the evil of the punishment
would be greater than the evil of the offence. The means necessary to carry the
law into execution would be of a nature of spread through society a degree of
alarm more injurious than the evil intended to be prevented.
2nd Legislation is often arrested by the danger of overwhelming the
innocent in seeking to punish the guilty. Whence comes this danger? From the
difficulty of defining an offence, and giving a clear and precise idea of it. for
example, hard-heartedness, ingratitude, perfidy, and other vice which the
popular sanction punishes, cannot come under the power of the law, unless they
are defined as exactly as theft, homicide, or perjury.
But, the better to distinguish the true limits of morals and legislation, it
will be well to refer to the common classification of moral duties.
Private morality regulates the actions of men, either in that part of their
conduct in which they alone are interested, or in that which may affect the
interests of others. The actions which affect a man's individual interest compose
a class called, perhaps improperly, duties to ourselves; and the quality or
disposition manifested in the accomplishment of those duties receives the name
of prudence. That part of conduct which relates to others composes a class of
actions called duties to others. Now there are two ways of consulting the
happiness of others: the one negative, abstaining from diminishing it; the other
positive, laboringto augment it. The first constitutes probity; the second is
beneficence.
Morality upon these three points needs the aid of the law; but not in the
same degree, nor in the same manner.
 I. The rules of prudence are almost always sufficient of themselves. It a man
fails in what regards his particular private interest, it is not his will which is in fault, it
is his understanding. If he does wrong, it can only be through mistake. The fear of
hurting himself is a motive of repression sufficiently strong; it would be useless to add
to it the fear of an artificial pain.
Does any oneobject, that facts show the contrary? That excesses of play, those
of intemperance, the illicit intercourse between the sexes, attended so often by the
greatest dangers, are enough to prove the individuals have not always sufficient
prudence to abstain from what hurts them?
Confining myself to a general replay, I answer, in the first place, that, in the
greater part of these cases, punishment would be so easily eluded, that it would be
inefficacious; secondly, that the evil produced by the penal law would be much beyond
the evil of the offence.
Suppose, for example, that a legislator should feel himself authorized to
undertake the extirpation of drunkenness and fornication by direct laws. He would have
to begin by a multitude of regulations. The first inconvenience would therefore be a
complexity of laws. The easier it is to conceal these vices, the more necessary it would
be to resort to severity of punishment, in order to destroy by the terror of examples the
constantly recurring hope of impunity. This excessive rigour of laws forms a second
inconvenience not less grave than the first. The difficulty of procuring proofs would be
such, that it would be necessary to encourage informers, and to entertain an army of
spies. This necessity forms a third inconvenience, greater than either of the others. Let
us compare the results of good and evil. Offences of this nature, if that name can be
properly given to imprudences, produce no alarm; but the pretended remedy would
spread a universal terror; innocent or guilty, every one would fear himself or his
connexions; suspicions and accusations would render society dangerous; we should fly
from it; we should involve ourselves in mystery and concealment; we should shun all
the disclosures of confidence. Instead of suppression one vice, the laws would produce
other vices, new and more dangerous.
It is true that example may render certain excesses contagious; and that an evil
which would be almost imperceptible, if it acted only upon a small number of
individuals, may become important by its extent. All that the legislator can do in
reference to offences of this kind is, to submit them to some slight punishment in cases
of scandalous notoriety. This will be sufficient to give them an illegality, which will
excite the popular sanction against them.
It is in cases of this kind that legislators have governed too much. Instead of
trusting to the prudence of individuals, they have treated them like children or slaves.
They have suffered themselves to be carried away by the same passion which has
influenced the founders of religious orders, who, to signalize their authority, and
through a littleness of spirit, have held their subjects in the most adject dependence, and
have traced for them, day by day, and moment by moment, their occupations, their food,
their rising up, their lying down, and all the petty details of their life. There are
celebrated codes, in which are found a multitude of clogs of this sort; there are useless
restraints upon marriage; punishment decreed against celibacy; sumptuary laws
regulating the fashion of dress, the expense of festivals, the furniture of houses, and the
ornaments of women; there are numberless details about aliments permitted or
forbidden about ablutions of such or such a kind about the purifications which health or
cleanliness require; and a thousand similar puerilities, which add, to all the
inconvenience of useless restraint, that of besotting the people, by covering these
absurdities with a veil of mystery, to disguise their folly.
Yet more unhappy are the States in which it is attempted to maintain by penal
laws a uniformity of religious opinions. The choice of their religion ought to be referred
entirely to the prudence of individuals. If they are persuaded that their eternal happiness
depends upon a certain form of worship or a certain belief, what can a legislator oppose
to an interest so great? It is not necessary to insist upon this truth-it is generally
acknowledged; but, in tracing the boundaries of legislation, I cannot forget those which
it is the most important not to overstep.
As a general rule, the greatest possible latitude should be left to individuals, in
all cases in which they can injure none but themselves, for they are the best judges of
their own interests. If they deceive themselves, it is to be supposed that the moment
they discover their error they will alter their conduct. The power of the law need
interfere only to prevent them from injuring each other. It is there that restraint is
necessary; it is there that the application of punishments is truly useful, because the
rigour exercised upon an individual becomes in such a case the security of all.
It is true that there is a natural connection between prudence and probity: for our
own interest, well understood, will never leave us without motives to abstain from
injuring our fellows.
Let us stop a moment at this point. I say that, independently of religion and the
laws, we always have some natural motives – that is motives derived from our own
interest for consulting the happiness of others. 1st. The motive of pure benevolence, a
sweet and clam sentiment which we delight to experience, and which inspires us with a
repugnance to be the cause of suffering. 2nd. The motives of private affection, which
exercise their empire in domestic life and within the particular circle of our intimacies.
3rd. the desire of good repute, and the fear of blame. This is a sort of calculation of trade.
It is paying, to have credit; speaking truth, to obtain confidence; serving, to be served.
It is thus we must understand that saying of a wit, that, if there were no such thing as
honesty, it would be a good speculation to invent it, as a means of making one's fortune.
A man enlightened as to his own interest will not indulge himself in a secret
offence through frat of contracting a shameful habit, which sooner or later will betray
him; and because the having secrets to conceal from the prying curiosity of mankind
leaves in the heart a sediment of disquiet, which corrupts every pleasure. All he can
acquire at the expense of security cannot make up for the loss of that; and, if desires a
good reputation, the best guarantee he can have for it is his own esteem.
But, in order that an individual should perceive this connection between the
interests of others and his own, he needs an enlightened spirit and a heart free from
seductive passions. The greater part of men have neither sufficient light, sufficient
strength of mind, nor sufficient moral sensibility to place their honesty above the aid of
the laws. The legislator must supply the feebleness of this natural interest by adding to
it an artificial interest, more steady and more easily perceived.
More yet. In many cases morality derives its existence from the law; that is, to
decide whether the action is morally good or bad, it is necessary to know whether the
laws permit or forbid it. It is so of what concerns property. A manner of selling or
acquiring, esteemed dishonest in one country, would be irreproachable in another. It is
same with offences against the state. The state exists only by law, and it is impossible
to say what conduct in this behalf morality requires of us before knowing what the
legislator has decreed. There are countries where it is an offence to enlist into the service
of a foreign power, and others in which such a service is lawful and honourable.
As to beneficence some distinctions are necessary. That law may be extended to
general objects, such as the care of the poor; but, for details, it is necessary to depend
upon private morality. Beneficencehas its mysteries, and loves best to employ itself
upon evils so unforeseen or so secret that the law cannot reach them. Besides, it is to
individual free-will that benevolence owes its energy. If the same acts were
commanded, that would no longer to benefits, they would loose their attraction and their
essence. It is morality and especially religion, which here form the necessary
complement to legislation, and the sweetest tie of humanity.
However, instead of having done too much in this respect, legislators have not
done enough. They ought to erect into an offence the refusal or the omission of a service
of humanity when it would be easy to render it, and when some distinct ill clearly results
from the refusal; such, for example, as abandoning a wounded man in a solitary road
without seeking any assistance for him; not giving information to a man who is
ignorantly meddling with poisons; not reaching out the hand to one who has fallen into
a ditch from which he cannot extricate himself; in these, and other similar cases, could
any fault be found with a punishment, exposing the delinquent to a certain degree of
shame, or subjecting him to a pecuniary responsibility for the evil which he might have
prevented?
I will add, that legislation might be extended further than it is in relation to the
interests of the inferior animals. I do not approve the laws of the Hindus on this subject.
There are good reasons why animals serve for the nourishment of man, and for
destroying those which incommode us. We are the better for it, and they are not the
worse; for they have not, as we have, long and cruel anticipations of the future; and the
death which they receive at our hands may always be rendered less painful than that
which awaits them in the inevitable course of nature. But what can be said to justify the
useless torments they are made to suffer; the cruel caprices which are exercised upon
them? Among the many reasons which might be given for making criminal such
gratuitous cruelties, I confine myself to that which relates to may subject. It is a means
of cultivating a general sentiment of benevolence, and of rendering men more mild; or
to least of preventing that brutal depravity, which after fleshing itself upon animals,
presently demands human suffering to satiate its appetite.