Model Answer

ISP Set 1

1 (a) What do you mean by Contextual ambiguity? Explain with a case reference.

In this type of ambiguity there is conflict between any part of enactment with another internal
part or external context. There may be conflict between two sections, two sub-sections, two
clauses or between one sub-section with another section or another clause. There may also be
conflict between the parts of one section itself. For example, between the proviso and the
enacting active part or with the heading or the marginal note of the section and the section itself.
The outer contextuality is symbolically represented by the long title or the preamble to the
statute. So, at times ambiguity may be read when a conflict is shown between the long title or
the preamble with any part of the statute.

U.P. Bhoodan Yagna Samiti vs. Brijkishore

The language in U.P. Bhoodan Yagna Act, 1952: Sections I4 and 15—Grant of land to landless
persons was interpreted to be made in accordance with the Bhoodan Yagna Scheme and the
philosophy behind the Bhoodan Movement and seen that the meaning of the phrase was for the
poor landless persons ( Bhoom hin Kisan) and not for the rich people who didn’t have a land in
the district. The ambiguity arised for the phrase “landless persons”.

(b) Explain the mimansa principle of “sarthakya” with an appropriate case reference.
Sarthakeya- (utres magis valeat quam pareat): Every word should have a purposeful
meaning.The maxim means that “the words of a statute must be construed sensibly as to give
them a sensible meaning.” This maxim is a rule of construction which literally means the
construction of a rule should give effect to the rule rather than destroying it (interestingly, this
maxim has also been echoed by the ancient philosophers of India through their mimamsa
principles.)

When there are two constructions possible from a provision, of which one gives effect to the
provision and the other renders the provision inoperative, the former which gives effect to the
provision is adopted and the latter is discarded. The doctrine of ut res magis valeat quam pereat
is also applicable in the interpretation of an instrument, document or deed. The interpretation
 which upholds its validity should be preferred. It generally starts with a presumption in favour
of constitutionality and prefers a construction which embarks the statute within the competency
of the legislature.

Case Law: Avtar Singh v/s State of Punjab 1965 SCR (1) 10

The Court looked into the doctrine “Ut res Magis Valet Quam Pareat” and stated that such an
interpretation is not permitted for "the words of an Act of Parliament must be construed so as to
give sensible meaning to them." The Court stated that it finds no difficulty in taking the view
that s. 39 does provide for a punishment. It says that the dishonest abstraction of energy shall be
deemed to be theft within the meaning of the Indian Penal Code. The section, therefore, makes
something which was not a theft within the Code, a theft within it, for if the abstraction was a
theft within the Code, the section would be unnecessary.
Long Question
1 1. In this instant case, appellant, Ms. Urmila a divorcee got married to the respondent, Mr.
Badshah in the year 2005 according to the customs prescribed for Hindus. Both the Appellant
and the respondent lived as man and wife and there were no issues in their married life. But on
one fateful morning a woman named Ms. Shoba came to their residence and claimed herself to
be the legally wedded wife of Respondent since 1979. Ms. Shoba even went on to state that if
the petitioner were to live in their residence should reside quietly, otherwise she had to find her
way back to her parents’ residence. The appellant being aggrieved filed an application and
sought maintenance under Sec. 125 of CrPC. Her contention was that the petitioner was
already married but he duped her by suppressing the factum of alleged first marriage. Decide
the case in light of the appropriate rule of interpretation with the help of decided cases.

Ans-
Identification of the Rule- (Mischief Rule)- 1 mark
Explanation of the rule- 2 marks.
When there is ambiguity in the literal meaning then we go to the purpose for which the statute
is created, and that interpretation that supresses the mischief and advances the remedy pro bono
publico and not pro private commando should be given effect.
Application of the rule- 4 marks
Under section 125 CrPC a wife is entitled to maintenance. Question is a second wife who was
married by supressing the factum of 1st marriage, can she be technically ousted from the remedy
u/s.125 CrPc? To understand this the mischief rule can be applied and the answer to the 4
questions should be sought-
1.What was the law before passing of this Act?
There was no law apart from customary laws which were not binding.
2. What was the mischief or the defect for which the law did not provide for?
In the Indian society where wives are financially dependent on the husband and more than
often the parents marry her off with everything they possessed. In such a situation in acse of
any matrimonial dispute, if the husband does not provide for the wife, then she had no other
means for her maintenance.
3. What was the remedy provided by the legislature?
In case where the wife is unable to maintain herself, it is the law makes the husband
responsible for her maintenance.
4. What was the true reason for the remedy?
The reason was to see that the wife who gives her all to the marriage and the husband, is not
left without the means to survival in case of any matrimonial dispute.
In the given situation though the appellant was not the legal wife of the respondent but they
have lived as man and wife and she had no knowledge of the 1st marriage of the respondent.
As such if she is denied the maintenance then the mischief remains. As such the
interpretation that suppresses the mischief and advances the remedy should be given effect
to.
Decision- 1 mark
The appellant should be considered as a wife even if not in the strict sense and is entitled to
the maintenance from the responded.

Case References- 2 marks

 Bengal Immunity Co. v. State of Bihar, AIR I955 SC 661.

The Bihar sales tax authorities issued notice on the company since according to them the
company was liable to pay tax but had nevertheless wilfully failed to apply for registration
under the Act. The company denied the liability because it was not a resident in Bihar. The
Supreme Court observed that to arrive at the true intention of the legislature, an enactment
should be interpreted in the light of the history of the legislation, the mischief it intended to
suppress and the provisions of the statute. So interpreted, the majority of judges held that the
 Bihar Government cannot levy tax by taking the shelter under Article 286 as under the said
Article a restriction has been imposed upon the State from imposing the tax on inter – state trade
and commerce.

 Smith vs. Hughes 1960 Vol 1 WLR 830

The defendants were prostitutes who had been charged under the Street Offences Act 1959
which made it an offence to solicit in a public place. The prostitutes were soliciting from private
premises in windows or on balconies so could be seen by the public.The court applied the
mischief rule holding that the activities of the defendants were within the mischief the Act was
aimed at even though under a literal interpretation they would be in a private place.

2.
3. As per section 2 of the Ecclesiastical Courts Jurisdiction Act 1860 in England, it is an
offence to exhibit “…. riotous, violent or indecent behaviour at divine service”. In the
current case the defendant had caused disturbance at a Sunday morning church service
by shouting criticisms of certain policies of some of the leading politicians who were
present at the Sunday Mass. He was charged for “indecent” behaviour under the above
provision. The defendant contended that his behaviour cannot be termed as “indecent”
behaviour. Decide in light of the appropriate principle of interpretation. Give appropriate
case references.

Ans-

Application of the Rule- 1 mark- Noscitur a sociis

Explanation of the rule- 2 marks

Meaning from association. When there is ambiguity in understanding the meaning of a word
that is part of an enumeration of other words, then the meaning of the words can be gathered
from the associated words, by getting the common genus or the colour from the rest of the
words and then applying it to the ambiguous word.

Application of the rule- 4 marks

In the given case the ambiguity is regarding the word “indecent”. The ordinary meaning of
indecent is obscene. But in this case the associated words ‘riotous, violent or indecent behavior
at divine service’ in the context of the Ecclesiastical Act are all such behavior having the
 common colour of disruptive or disturbing in nature that cause impediments in having the divine
services. Therefore, shouting slogans at the Sunday march shall qualify if not as violent or
riotous behavior but as indecent, that is disturbing in nature.

Decision- 1 mark

The defendant shall be guilty under the impugned provision for indecent beahavior.

Case References- 2 marks

Pengelley v. Bell Punch Co. (1964) 1 W.L.R. 1055
Sec. 28(1) of the Factories Act 1961 states- All floors, steps, stairs, passages and gangways
shall be of sound construction and properly maintained and shall, so far as is reasonably
practicable, be kept free from any obstruction and from any substance likely to cause
persons to slip. The expression ‘floors’ in this context and in the light of the word
‘obstruction,’ which means ‘blocking or being blocked: making or becoming more or less
impassable,’ is limited to those parts of the factory floor upon which workmen are intended
or likely to pass and re-pass and a floor used exclusively for storage did not fall within the
Act.

Foster v Diphwys Casson ((1887) 18 QBD 428)

This case involved a statute which stated that explosives taken into a mine must be in a "case
or canister". Here the defendant used a cloth bag. The courts had to consider whether a cloth
bag was within the definition. Under noscitur a sociis, it was held that the bag could not have
been within the statutory definition, because parliament's intention was referring to a case or
container of the same strength as a canister.
4.
4. The appellant in this case is M/s. Swastik Gases Private Limited, mainly dealing with storage
and distribution of petroleum products in Rajasthan had its registered office in Jaipur. An
agreement was signed between the appellant and Indian Oil corporation ltd, whereby the
Appellant was appointed the company's consignment agent for marketing lubricants at Jaipur
(Rajasthan). There were disputes between the parties as the appellant could not sell the huge
quantities of stock of lubricants and thereby requested the company to either liquidate the
stock or take back the stock and make payment thereof to the Appellant. The parties met
several times but the disputes could not be resolved amicably.

As the company did not nominate its arbitrator within the stipulated time, this led to the
Appellant making an application in the Rajasthan High Court for the appointment of arbitrator
in respect of the disputes arising out of the above agreement. The clause 18 in the agreement
stated that the Agreement shall be subject to jurisdiction of the courts at Kolkata. The
contention of the appellant is that even though clause 18 confers jurisdiction to entertain
disputes inter se parties at Kolkata, it does not specifically bar jurisdiction of courts at Jaipur
where also part of the cause of action has arisen.

The company contested that the agreement has been made subject to jurisdiction of the courts at
Kolkata and, therefore, Rajasthan High Court lacks the territorial jurisdiction in dealing with the
application. Decide in light of the appropriate rule or principle in interpreting the clause of the
agreement between the parties. Give appropriate case references.
(LL-2, CO 3)
Ans-
Identification of the rule- 1 mark -Expressio unious est exclusion altarius
Explanation of the rule- 2 marks
This maxim means that expression precludes implications. When something is expressly
provided in the statute, that implies exclusion of similar things or aspects.
Application of the rule- 4 marks
In this case it has been expressly provided in clause 18 of the agreement that the Agreement
shall be subject to jurisdiction of the courts at Kolkata in case of any disputes between the
parties to the agreement. Therefore, the courts of other places are thereby precluded from having
jurisdiction.
Decision- 1 mark
The dispute subject to be referred to the courts at Kolkata only.

Case references- 2 marks

Aldrich v. Attorney General (1968) P. 281

The petition sought a declaration under order 15 rule 17 that a woman who died abroad was his
legitimate daughter. Sec. 39 of the Matrimonial Causes Act 1967 provided for declaration of
legitimacy by the HC u/s21 of the S.C. judicature (Consolidation) Act 1925. S. 39 applied to
declarations of legitimacy of the petitioner himself and of the validity of his own, or his parents’
or grandparents’ marriages. J. Orwood applied the expression rule that declarations only of the
 types expressed are maintainable under s.39 and implies the exclusion of any other declarations
of legitimacy. It was held that the H.C. does not have jurisdiction to make the declaration of
legitimacy of his daughter.

R. V. Secretary of state for the Home department

In this case it was held to exclude the father of an illegitimate child from rights under
immigration law at the time, because the definition section specifically mentioned the mother
alone.

5 On August 19, 1962, Pondicherry became a Union Territory. Article 239A of the Constitution
provides that the Parliament may by law create for any of the Union territories a body, whether
elected or partly nominated and partly elected, to function as a Legislature for the Union
territory. In the present case such a body had not been created for Pondicherry. Rather the
President, in exercise of the powers conferred on him by promulgated the Tax Laws (Extension
to Union Territories) Regulation 1963. By this Regulation the laws in force in relation to income
tax in Union territory of Pondicherry were repealed and the Indian Income-tax Act, 1961 was
made applicable. The petitioners challenged the validity of the Regulation on the basis of the
proviso to Article 240(1), that the power of the President is co-extensive with the power of the
legislature which may be constituted for a Union territory and hence the President’s power to
make regulations is limited to subjects falling within the Concurrent and State list. The
contention of the respondent was that the proviso lays down the condition for the cesser of
power which ceases when a legislature for the territory is created but until such a legislature is
created, the President retains his full power to make regulations for those territories on all
subjects which have the same force and effect as an Act of Parliament which applies to that
territory.

Article 240. Power of President to make regulations for certain Union territories.

(1) The President may make regulations for the peace, progress and good government of
the Union territory of-
……
(e) Puducherry:
Provided that when anybody is created under article 239A to function as a Legislature for the
Union territory of Goa, Daman and Diu or Pondicherry, the President shall not make any
regulation for the peace, progress and good government of that Union territory with effect from
the date appointed for the first meeting of the Legislature.

(2) Any regulation so made may repeal or amend any Act made by Parliament or any existing
law which is for the time being applicable to the Union territory and, when promulgated by the
President, shall have the same force and effect as an Act of Parliament which applies to that
territory.

Decide the case in light of the appropriate internal aid with respect to the validity of the
regulation, with relevant case references.

Identification of internal aid- 1 mark -Proviso

Explanation of the role of the internal aid- 2 marks

The enacting part of the provisions, that is has to be given its plain or literal meaning and
whenever a proviso is added it has the following role (S. Sundaram Pillai etc. vs. V.R.
Pattabiraman 1985 AIR 582)-

• Qualifying or excepting certain provisions from the main enactment

• It may entirely change the very concept of intendment of the enactment by insisting on
certain mandatory conditions to be fulfilled in order to make the enactment workable
• It may be so embedded in the Act itself as to become an integral part of the enactment,
and thus acquire the tenor and the colour of the substantive enactment itself.
• It may be used merely to act as an optional addenda to the enactment with the sole object
of explaining the real intendment of the statutory provision.

Only when there is a conflict between the enacting part of the provision and the proviso attached
thereto, the proviso prevails representing the later intent of the legislature.

Application of the rule- 4 marks

In this case the proviso is providing for an exception to the enacting part of the Article, where if
a legislature is created for the Union Territory, then the President shall not exercise its power un
the Article. In this case since no legislature has been created the enacting part of the provision
shall be given its plain meaning whereby the President retains his full power to make regulations
for those territories on all subjects which have the same force and effect as an Act of Parliament
which applies to that territory.
 Case References – 2 marks
Maha Prasad Singh v. Ramani Mohan Singh (1914) 16 BOMLR 824
The proviso of the enactment reads “Provided that all civil suits in which the matter in dispute
shall exceed the value of Rs.1000 shall be tried and determined according to the general laws
and regulations in the same manner as if this act has not been passed.” The respondent filed the
suit in the subordinate judge courts and the appellant contended that the court had no
jurisdiction to try the suit , the property subjected to mortgage was situated in Santhal Parganas.
The interpretation of this proviso is a matter of great difficulty, two rival interpretations
naturally suggest themselves. The proviso was applied and as providing that the special officer
or officers shall try such suits but in trying an determining them, they shall observe the general
laws and regulations obtaining in Bengal which but for the act would have applied equally in
santhal parganas.
In TM Kanniyan v ITO, Pondicherry

In this Art 240(1) of the Constitution and the proviso appended to it were discussed. Article
240(1) confers power on the President to make regulations for the peace, progress and good
Government of the Union Territories. There is a proviso appended to this article which directs
that the President shall not make any regulation after the constitution of a legislature for a Union
Territory. On the basis of this proviso, it was contended that the power of the President is co-
extensive with the power of the Legislature, which may be constituted for a Union Territory and
hence, the President's power to make regulations is limited to subjects falling within the
concurrent and State lists. But this argument was negated on the reasoning that the enacting part
of Article 240(1) in plain terms confers plenary powers of making regulations which are not
curtailed by the proviso.
5 In 2009 PATH a US based NGO in collaboration with Andhra Pradesh and Gujarat came up
with the idea to administer HPV (Human Papilloma Virus) vaccine for adolescent girls aged
between 10 to 14, this vaccine was said to prevent cervical cancer. This vaccine was
administered for around 32,000 girls in Khammam (AP) and Vadodara (Gujrat). This also
resulted in the loss of life of several girls who were administered with this vaccine. Several
health Activists suspected severe health risk and irregularity in administering the HPV Vaccine,
they demanded a fact-finding enquiry be conducted in furtherance of it.
A parliamentary standing committee was constituted by the Government to look into the alleged
irregularity in administering the vaccine, the committee came up with the report and found
severe irregularity present in administering the vaccines, the committee also came up with
various recommendation and guidelines. It was contented by the respondent (UOI &
pharmaceutical companies) that the parliament standing committee is not admissible before the
court because of the presence of parliamentary privileges in Art. 105(2) of the Constitution. The
petitioner (health activists) contended that as per the Evidence Act, 1887, parliamentary
proceedings are public documents that are admissible in evidence. Further, no challenge has
been made to any part of the Parliamentary Committee Report, nor is it being asked that a
mandamus must be issued to enforce the report’s finding. No question has been raised with
regards to the actions or conduct of any parliament member.

According to Sec 74(iii) of the Indian Evidence Act of public officers, legislative, judicial and
executive, of any part of India or of the Commonwealth, or of a foreign country;

And section 57of the Indian Evidence Act Facts of which the courts shall take judicial notice,
clause (4) provides-The course of proceeding of …,Parliament and of the legislatures
established under any law for the time being in force in a Province or in the States;

Whereas Art 105(2) of the Constitution provides-(2) No member of Parliament shall be liable to
any proceedings in any court in respect of anything said or any vote given by him in Parliament
or any committee thereof, and no person shall be so liable in respect of the publication by or
under the authority of either House of Parliament of any report, paper, votes or proceedings.

Decide the case whether the Parliamentary Committee Report can be admissible in the court in
light of the above provisions. Cite relevant cases.

External aid used- 1 mark- Travaux preparatories

Significance of the External Aid- 2 marks Where language is clear, external aid for
construction is not required. External aids are relevant only when the language is not clear and
two meanings are possible. Generally, this French word “Travaux preparatories” is used to
denote the parliamentary materials that are documents relating to events that occurred during the
conception, preparation, and passage of the enactment. The Courts are entitled to consider such
materials to understand the subject-matter to which the statutes relate or they can also have
regard to the mischief which the statute is intended to remedy, but if they add to the ambiguity
they should be ignored.

Application of the aid- 4 marks

The Court in the case in hand went on to decide the admissibility of the Parliamentary
commission report, the Court in the process of its decision differentiated the privileges present
under Article 105 of the Constitution and its non-applicability to the case in hand of India. It
further stated that parliamentary committee report is considered as a part of parliamentary
proceeding and performs one of the key areas of governance as it passes guidelines and serves
public purpose. The committee report is a public document and its publication should be
encouraged in the democratic setup. It further stated that there is violation of privilege because
of the reference/reliance being placed upon the Parliamentary committee report.

Decision- Parliamentary standing committee can be relied on in the Court.

Case References- 2 marks

State of Mysore v. R.V. Bidop, 1974 SCC 337

Application of the Rule:

Art. 316(2)states that a member shall hold office for a term of six years which means that on
the expiration of that period he ceases to hold office. So, the normal way a member ceases to
hold office is by his six-year term spending itself out (or by his crossing the age bar of 60 or 65
as the case may be). Art. 319 means that a member ceasing to hold office, as a result of his six-
year term expiring, shall be eligible for appointment as Chairman of the same Commission. In
the present case, the office of a member is different from the office of the Chairman and so there
is no re-appointment to that office when a member is made Chairman. Similarly, Artis not
breached because there is a six-year term for each office. The counter argument on the basis of
Art. 316(2)and(3)fails to explain Art. 319 (1)(d) which expressly authorised appointment of a
member as Chairman on ceasing to hold office. In this case, the Supreme Court held that a
member, when appointed as Chairman in the middle of his term, starts a new six-year term
subject to other provisions of the Constitution.
 In M Ismail Faruqqui v Union of India

It was held by the Supreme Court that white paper issued by the government detailing the facts
leading to enactment of a statute is also admissible for understanding the background when the
court is called upon to interpret and decide the validity of the statute. In understanding the
background of the Ramjanma Bhumi, the Babri Masjid dispute, in deciding the reference made
under Article 143 and the constitutionality of the Acquisition of Certain Areas of Ayodhya Act,
1993 extensive reference was made by the Supreme Court to the white paper.
5. The Appellant was a partner in a firm Indo Malyan Trading company, the company was
indulging in the sale of oil, and had its headquarters in Madras but was primarily involved in
selling oil to Calcutta. In the instant case, the appellant was slapped with a notice under the
Madras Sales Tax Act 1939, the Appellant contended that he pays tax in Calcutta as the sale
occurs in Calcutta, the Appellant contended that his business functions in such a way that order
is procured from Madras office but the economic activity happens outside the scope of Madras
office. The Appellant contended that the preamble of the statute stated than “An Act to tax
within the province of Madras”. Further the transaction was completed in another province
(Calcutta) where the property in the goods passed. The Revenue Department (respondent) relied
on the definition of “sale” under Section 2(h) and it is defined as meaning, every, transfer of the
property in goods by one person to another in the course of trade or business for cash or for
deferred payment or other valuable consideration…. As the transfer happened from a company
in Madras the, Madras taxing authority can impose tax. Decide the case in light of the
appropriate internal aid whether tax can be imposed on the appellant under the Madras Sales
Tax Act. You can also use other appropriate principle of interpretation to reach to the decision.
Give relevant case references.
Ans-
Identification of the Principle of interpretation- Use of Preamble as an internal aid and the
principle of territorial nexus
Preamble is the window to understand the object and policy of the statute, and therefore, in case
of ambiguity in understanding the meaning of any provisions in the statute, it may be relied
upon. However, the preamble cannot be used to control the clear meaning of the provisions of
the statute.
In implementing the provisions of the law, if the question is whether the subject or the subject
matters are within the jurisdiction of the impugned law in respect of whether they have
territorial nexus, then the two pronged test applied to determine whether there is territorial nexus
or not, by the Supreme Court in State of Bombay vs R.M.D. Chamarbaugwala 1957 SCR 874 is
considered to be gold standard.
• The test to determine territorial nexus-
• The connection must be real and not illusionary
• The liability sought to be imposed must be pertinent to that connection
Application of the Principles- 4 marks
Preamble as an internal aid-The Applicant had primarily relied on the preamble of the statute
which stated than An Act to tax within the province of Madras. Because the Act had specifically
stated that the ambit of the Act is to tax within the province of Madras the same was relied on
by the Court to upheld the contentions relied on by the Appellant.

Territorial nexus- In this case though parts of the transactions take place in Calcutta, the fact that
the company and its headquarters in Madras establishes sufficient territorial nexus
Decision- 1 mark
The applicant can be Taxed under the Madras Sales Tax Act 1939.
Case References – 2marks.

State of Bombay vs R.M.D. Chamarbaugwala 1957 SCR 874

The Respondent was not residing in Bombay but he conducted Competitions with prize money
through a newspaper printed and published from Bangalore having a wide circulation in
Bombay. The question for decision before the Supreme Court was if the respondent, the
organizer of the competition, who was outside the state of Bombay, could be validly taxed under
the Act. It was held by the supreme court that there was a sufficient territorial nexus and
the legislature has the authority to tax the respondent for the revenue earned by his company
through the prize competition.

State of Bihar vs Charusila Dasi 1959 AIR 1002

In the instant case, the state of Bihar passed a legislation which dealt with the motive to
safeguard the properties relating to the Hindu religious trusts. This act consists of all the trusts
within the territorial limits of Bihar. So the respondent Madea trust deed several of her
properties in situated in Bihar and Calcutta, and the trust was inside the territorial limits of
Bihar. Several questions were raised about the scope of this act. It was held that the act passed
by the state of Bihar could have the effect over the property situated outside the territorial limits
of Bihar keeping in mind that the trust must be situated with the limits of the state and there
exist the sufficient nexus.