MODULE 1

This study relates to ‘Interpretation of Statutes, Deeds and

Documents’. So, first of all we must understand what these terms and
some other terms denote. It would, therefore, be important for us at this
stage itself to understand the terms ‘Statute’, ‘Document’,
‘Instrument’, ‘Deed’ and ‘Interpretation’.
‘Statute’: To the common man the terms ‘Statute’ generally means the
laws and regulations of every sort without considering from which source
they emanate.
However, the term ‘Statute’ has been defined as the written will of the
legislature solemnly expressed according to the forms necessary to
constitute it the law of the State. Normally, the term denotes an Act enacted
by the legislative authority (e.g. Parliament of India).

The Constitution does not use the terms ‘statute’ though one finds the terms
‘law’ used at many places. The terms ‘law’ is defined as including any
ordinance, order, bye-law, rule, regulation, notification, and the like.
In short ‘statute’ signifies written law in contradiction to unwritten law.
‘Document’: Generally understood, a document is a paper or other
material thing giving information, proof or evidence of anything. The Law
defines ‘document’ in a more technical form. Section 3 of the Indian
Evidence Act, 1872 states that ‘document’ means any matter expressed
or described upon any substance by means of letters, figures or marks or
by more than one of those means, intended to be used, or which may be
used, for the purpose of recording that matter.
Example: A writing is a document, any words printed,
photographed are documents.
Section 3(18) of the General Clauses Act, 1897 states that the term ‘document’
shall include any matter written, expressed or described upon any substance by
means of letters, figures or marks, or by more than one of those means which is
intended to be used, or which may be used, for the purpose of recording
this matter.
Generally, documents comprise of following four elements:

Elements of documents

Matter Record Substance means

(i) Matter—This is the first element. Its usage with the word “any” shows
that the definition of document is comprehensive.
(ii) Record—This second element must be certain mutual or mechanical
device employed on the substance. It must be by writing, expression or
description.
(iii) Substance—This is the third element on which a mental or
intellectual elements comes to find a permanent form.
(iv) Means—This represents forth element by which such permanent
form is acquired and those can be letters, any figures, marks, symbols
which can be used to communicate between two persons.
‘Instrument’: In common parlance, ‘instrument’ means a formal legal
document which creates or confirms a right or records a fact. It is a formal
writing of any kind,
such as an agreement, deed, charter or record, drawn up and executed in a
technical form. It also means a formal legal document having legal effect,
either as creating liability or as affording evidence of it. Section 2(14) of the
Indian Stamp Act, 1899 states that ‘instrument’ includes every document by
which any right or liability is or purports to be created, transferred,
extended, extinguished or recorded.
‘Deed’: The Legal Glossary defines ‘deed’ as an instrument in writing
(or other legible representation or words on parchment or paper)
purporting to effect some legal disposition. Simply stated deeds are
instruments though all instruments may not be deeds. However, in India
no distinction seems to be made between instruments and deeds.
‘Interpretation’: By interpretation is meant the process by which the
Courts seek to ascertain the meaning of the legislature through the
medium of the authoritative forms in which it is expressed. Simply stated,
‘interpretation’ is the process by which the real meaning of an Act (or a
document) and the intention of the legislature in enacting it (or of the
parties executing the document) is ascertained. ‘Interpretation’ signifies
expounding the meaning of abstruse words, writings, etc., making out of
their meaning, explaining, understanding them in a specified manner. A
person is there by aided in arguing, contesting and interpreting the
proper significance of a section, a proviso, explanation or schedule to
an Act or any document, deed or instrument.
Importance of Interpretation: Interpretation, thus, is a familiar
process of considerable significance. In relation to statute law,
interpretation is of importance because of the inherent nature of
legislation as a source of law. The process of statute making and the process
of interpretation of statutes take place separately from each other, and
two different agencies are concerned. An interpretation of Act serves as
the bridge of understanding between the two.
Judicial determination of questions of law requires the use of materials of
various types, depending on the nature of the question. In the interpretation
of statutory provisions the material used will naturally have a sharply legal
haracter, as distinct from the application of a general common law doctrine
where it may have a more diffused character. In statutes, greater accuracy
is, therefore, required. The process of interpretation is more legalistic and
makes more intensive use of the legal technique in statutory interpretation,
as contrasted with the application of common law rules.

Classification of Interpretation:
 General Classification of Interpretation

Legal Doctrinal

Authentic Usual Grammatical Logical

Jolowicz, in his Lectures on Jurisprudence (1963 ed., p. 280) speaks

of interpretation thus: Interpretation is usually said to be either ‘legal’ or
‘doctrinal’. It is ‘legal’ when there is an actual rule of law which binds
the Judge to place a certain interpretation of the statute. It is
‘doctrinal’ when its purpose is to discover ‘real’ and ‘true’ meaning of
the statute. ‘Legal’ interpretation is sub- divided into ‘authentic’ and
‘usual’. It is ‘authentic’ when rule of interpretation is derived from the
legislator himself; it is ‘usual’ when it comes from some other source
such as custom or case law. Thus when Justinian ordered that all the
difficulties arising out of his legislation should be referred to him for
decision, he was providing for ‘authentic’ interpretation, and so also was
the Prussian Code, 1794, when it was laid down that Judges should
report any doubt as to its meaning to a Statute Commission and abide
by their ruling.
‘Doctrinal’ interpretation may again be divided into two categories:
‘grammatical’ & ‘logical’. It is ‘grammatical’ when the court applies
only the ordinary rules of speech for finding out the meaning of the words
used in the statute. On the other hand, when the court goes beyond the
words and tries to discover the intention of the statute in some other way,
then it is said resort to what is called a ‘logical’ interpretation.
According to Fitzerald, interpretation is of two kinds – ‘literal’ and
‘functional’. The literal interpretation is that which regards conclusively the
verbal expression of the law. It does not look beyond the ‘literaligis’.
The duty of the Court is to ascertain the intention of the legislature and
seek for that intent in every legitimate way, but first of all in the words
and the language employed. ‘Functional’ interpretation, on the other
hand, is that which departs from the letter of the law and seeks
elsewhere for some other and more satisfactory evidence of the true
intention of the legislature. In other words, it is necessary to determine the
relative claims of the letters and the spirit of the enacted law. In all
ordinary cases, the Courts must be content to accept the letter of the law as
the exclusive and conclusive evidence of the spirit of the law
(Salmon: Jurisprudence, 12th ed., pp. 131-132). It is essential to
determine with accuracy the relations which subsist between the two
methods.
Interpretation and Construction: It would also be worthwhile to
note, at this stage itself, the difference between the terms
‘Interpretation’ and Construction. While more often than not the two
terms are used interchangeably to denote a process adopted by the courts
to ascertain the meaning of the legislative form in which it is expressed,
these two terms have different connotations.
The cardinal rule of construction of a statute is to read it literally, which
means by giving to the words used by the legislature their ordinary,
natural and grammatical meaning. If such reading leads to absurdity
and the words are susceptible of another meaning, the court may adopt
the same. If no such alternative construction is possible, the court must
adopt the ordinary rules of literal interpretation.
Whereas cardinal law of interpretation is that if the language is simple
and unambiguous, it is to be read with the clear intention of the
legislation. [CWT v. Smt. Muthu Zulaika(2000)]
For the purpose of construction of a statute the same has to be read as a whole.
[State of Bihar v. CIT, (1993) 202 ITR 535, 550 (Pat)]
Difference between Interpretation and Construction:
Interpretation differs from construction. Interpretation is of finding out
the true sense of any form and the construction is the drawing of conclusion
respecting subjects that lie beyond the direct expression of the text.
[Bhagwati Prasad Kedia v. C.I.T,(2001)]
It is the duty of the courts to give effect to the meaning of an Act
when the meaning can be equitably gathered from the words used.
Words of legal import occurring in a statute which have acquired a definite
and precise sense, must be understood in that sense. (State of Madras
v. Gannon Dunkerly Co. AIR 1958)
When the legislature uses certain words which have acquired a definite
meaning over a period of time, it must be assumed that those words have
been used in the same sense.
Thus, where the Court adheres to the plain meaning of the language used
by the legislature, it would be ‘interpretation’ of the words, but where the
meaning is not plain, the court has to decide whether the wording was
meant to cover the situation before the court. Here the court would be
resorting to what is called ‘construction’, however, the two terms –
‘interpretation’ and ‘construction’ –overlap each other and it is rather
difficult to state where ‘interpretation’ leaves off and ‘construction’
begins.

NEED FOR INTERPRETATION

No doubt in modern times, the enacted laws are drafted by legal experts, yet
they are expressed in language and no language is so perfect as to
leave no ambiguities. Further, by its very nature, a statute is an edict of the
legislature and many-a-time the intent of the legislature has to be
gathered not only from the language but the surrounding circumstances
that prevailed at the time when that particular law was enacted. If any
provision of the statute is open to two interpretations, the Court has to
choose that interpretation which represents the true intention of the
legislature. Also, it is not within human powers to foresee the manifold set
of facts which may arise in the future and even if it were so it is not
possible to provide for them in terms free from all ambiguity. All these
aspects add to give great prominence to the subject of interpretation and
construction in the practical administration of the law.
It would be worthwhile to note what Denning L.J. has said on the
need for statutory interpretation: It is not within human powers to foresee
the manifold sets of facts which may arise; and that, even if it were, it is not
possible to provide for them in terms free from all ambiguity. The
English language is not an instrument of mathematical precision. Our
literature would be much the poorer if it were. This is where the draftsmen of
Acts of Parliament have often been unfairly criticized. A judge, believing
himself to be fettered by the supposed rule that he must look to the
language and nothing else, laments that the draftsmen have not provided
for this or that, or have been guilty of some or other ambiguity. It would
certainly save the judges’ trouble if Acts of Parliament were drafted with
divine prescience and perfect clarity. In the absence of it, when a defect
appears, a judge can not simply fold his hands and blame the draftsman.
He must set to work on the constructive task of finding the intention of
Parliament, and he must do this, not only from the language of the statute,
but also from a consideration of the social conditions which gave rise to it,
and of the mischief which it was passed to remedy, and then he must
supplement the written word so as to give ‘force and life’ to the intention
of the legislature.
It has been rightly said that a statute is the will of the legislature. The
fundamental rule of interpretation of a statute is that it should be
expounded according to the intent of those that made it. In the event of
the words of the
statute being precise and unambiguous in themselves it is only just
necessary to expound those words in their natural and ordinary sense: thus
far and no further. This is because these words distinctly indicate the
intention of the legislature. The purpose of interpretation is to discern the
intention which is conveyed either expressly or impliedly by the language
used. If the intention is express, then the task becomes one of ‘verbal
construction’ alone. But in the absence of any intention being
expressed by the statute on the question to which it gives rise and yet
some intention has to be, of necessity, imputed to the legislature
regarding it, then the interpreter has to determine it by inference based
on certain legal principles. In such a case, the interpretation has to be one
which is commensurate with the public benefit. Consequently, if a statute
levies a penalty without expressly mentioning the recipient of the penalty,
then, by implication, it goes to the officers of the State.
The subject of the interpretation of a statute, therefore, seems to fall under
two general heads:
(a) What are the principles which govern the construction of the language
of an Act of Parliament?
(b) What are those principles which guide the interpreter in gathering
the intention on those incidental points on which the legislature is
necessarily presumed to have entertained an opinion but on which it
has not expressed any?
Through the process of interpretation, the Court seeks to discern the
meaning of the legislation through the medium of authoritative forms in
which it is expressed.
As we have noted earlier, ‘interpretation’ may be either ‘grammatical’ or
‘logical’. ‘Grammatical interpretation’ concerns itself exclusively with the
verbal expression of the law: it does not go beyond the letter of the law.
‘Logical interpretation’, on the other hand, seeks more satisfactory
evidence of the true intention of the legislature.
In all ordinary cases, ‘grammatical interpretation’ is the sole form
allowable. The Court cannot take from or add to modify the letter of
the law. This rule is, however, subject to some expectations: firstly,
where the letter of the law is logically defective on account of ambiguity,
inconsistency or incompleteness. As regard the defect to ambiguity, the
Court is under a duty to travel beyond the letter of the law so as to
determine from the other sources the true intention of the legislature. In
the case of the statutory expression being defective on account of
inconsistency, the court must ascertain the spirit of the law. Secondly, if
the
text leads to a result which is so unreasonable that it is self-evident that
the legislature could not mean what it says, the court may resolve such
impasse by inferring logically the intention of the legislature.
About one thing there seems to be no controversy at all, a statute is
enforceable at law, howsoever unreasonable it may be. The duty of the
court is to administer the law as it stands. It is not within its jurisdiction to
see whether the law is just or unreasonable. The ascertainment of the
justification or reasonableness of law is the exclusive domain of the
legislature and it alone can consider alteration or modification of the law
passed by it. Until it is altered or modified or amended, the court has no
choice but to enforce the law as it is.
In this process of interpretation, several aids are used. They may be
statutory or non-statutory. The former category (statutory aids) is
illustrated by the General Clauses Act, and by specific definitions
contained in individual Acts, as also by certain provisions of a general
nature which are, for example, contained in the Indian Penal Code”, and
are relevant to the construction of penal enactments. The latter is
illustrated by common law rules of interpretation (including certain
presumptions relating to interpretation), and also by case-law relating to
the interpretation of statutes.

Process of Interpretation
General Clauses Act, 1897

Statutory –illustrated by
specific definitions
contained in individual
Acts

Aids
common law rules of
interpretation
Non-statutory-
illustrated by
case-law relating to the
interpretation of statutes

Commencement of Statutes
Commencement of the Statute is the day the Statue comes into
force. If a day is not set for the coming into operation of law,
 that day will be the day when the law was first published in the
Gazette as a law. If any act provides that it will come into
operation on a date fixed by the President or a Premier by
proclamation in the Gazette, different dates may be set in respect
of other provisions of that act.

Repeal of Statute
The effect of repealing a statute is such that it is presumed that
the Act never existed. Repeal means to revoke, rescind or cancel
particularly a statute. Any statute may repeal any Act in whole or
in part, either expressly or impliedly by enacting matter contrary
to and inconsistent with the prior legislation.

Revival of Statute
The revival of any law depends upon the need of the time and
demand of the case as cases vary from situation to situation, so
they need laws following them. For the revival of any statute, the
said revival has to be explicitly mentioned along with the purpose
of the said revival.

MODULE 2
RULES OF INTERPRETATION/ CONSTRUCTION
Over a period, certain rules of interpretation/construction have come to be
well recognized. However, these rules are considered as guides only and
are not inflexible. These rules can be broadly classified as follows:

(A) PRIMARY RULES

(1) Rule of Literal Construction: It is the cardinal rule of
construction that words, sentences and phrases of a statute should be
read in their ordinary, natural and grammatical meaning so that they
may have effect in their widest amplitude. At the same time, the
elementary rule of construction has to be borne in mind that words and
phrases of technical nature are ‘prima facie’ used in their technical
meaning, if they have any, and otherwise in their ordinary popular
meaning.
When the language of the statute is plain and unambiguous and admits of
only one meaning, no question of construction of a statute arises, for the
Act speaks for itself. The meaning must be collected from the expressed
intention of the legislature (State of U.P. v. Vijay Anand, AIR 1963 SC
946). A word which has a definite and clear meaning should be
interpreted with that meaning only, irrespective of its consequences.

Sometimes, occasions may arise when a choice has to be made between

two interpretations – one narrower and the other wider or bolder. In such a
situation, if the narrower interpretation would fail to achieve the manifest
purpose of the legislation, one should rather adopt the wider one.
For example, when we talk of disclosure of the nature of concern
or interest, financial or otherwise’ of a director or the manager of a
company in the subject- matter of a proposed motion (as referred to in
section 102 of the Companies Act, 2013), we have to interpret in its
broader sense that any concern or interest containing any information
and facts that may enable members to understand the meaning, scope and
implications of the items of business and to take decision thereon.
Whatever, What is required is a full and frank disclosure without
reservation or suppression, as, for instance where a son or daughter or
father or mother or brother or sister is concerned in any contract or
matter, the shareholders ought fairly to be informed of it and the material
facts disclosed to them. Here a restricted narrow interpretation would
defeat the very purpose of the disclosure.
Further, the phrase and sentences are to be construed according to the rules
of grammar. This was emphasized in no uncertain terms by the Supreme
Court in the case of S.S. Railway Company vs. Workers Union (AIR
1969 S.C. at 518) when it is stated that the courts should give a literal
meaning to the language used by the legislature unless the language is
ambiguous or its literal sense gives rise to any anomaly or results in
something which may defeat the purpose of the Act. It is the duty of the
court to give effect to the intent of the legislature and in doing so, its first
reference is to the literal meaning of the words employed. Where the
language is plain and admits of only one meaning, there is no
room for interpretation and only that meaning is to be enforced even
though it is absurd or mischievous, the maxim being ‘absoluta
sententia expositore non indiget’ (which means a simple preposition
needs no expositor i.e., when you have plain words capable of only one
interpretation, no explanation to them is required).
Similarly, when a matter which should have been, but has not been,
provided for in a statute cannot be supplied by courts as to do so would
amount to legislation and would not be construction.
For example: Section 71 of the U.P. District Boards Act, 1922
provided that a Board may dismiss its secretary by special resolution
which in certain cases required sanction of the Local Government. Section
90 of the same Act conferred a power to suspend the secretary pending,
inter alia, the orders of any authority whose sanction was necessary for
his dismissal. Section 71 of the Act was amended in 1931 and it then
provided that a resolution of dismissal was not to take effect till the expiry
of the period of appeal or till the decision of the appeal, if it was so
presented. However Section 90 of the Act was not correspondingly
amended. The Supreme Court observed that it was unfortunate that
when the legislature came to amend the old Section 71 of the Act it
forgot to amend Section 90 in conformity with the amendment of Section
71. The Court, however emphasized that while no doubt it is the duty of
the Court to try and harmonise the various provisions of an Act passed by
the legislature, it is certainly not the duty of the court to stretch the word
used by the legislature to fill in gaps or omissions in the provisions of
an Act. However, sometimes the courts may look at the setting or the
context in which the words are used and the circumstances in which the
law has come to be passed to decide whether there is something implicit
behind the words actually used which would control the literal meaning of
the words used. If there are two possible constructions of a clause, one a
mere mechanical and literal construction based on the rules of grammar and
the other which emerges from the setting in which the clause appears and
the circumstances in which it came to be enacted and also from the words
used therein, the courts may prefer the second construction which,
though may not be literal, may be a better one. (Arora vs.
State of U.P., AIR 1964 S.C. 1230 at 1236-37).
Words used in the popular sense: It dealing with mattes regarding
the general public, statute are presumed to use words in their popular sense.
But to deal with particular business or transaction, words are presumed
to be used with the particular meaning in which they are used and
understood in the particular business. However, words in statutes are
generally construed in their popular meaning and not in their technical
meaning.
It is the general rule that omissions are not likely to be inferred. From
this it brings another rule that nothing is to be added to or taken away
from a statute unless there are some adequate grounds to justify the
inference that the legislature intended something which it omitted to
express. “It is a wrong thing to add into an Act of Parliament words which
are not there and, in the absence of clear necessity, it is a wrong thing to
do.” If a case has not been provided for in a statute. It is not to be dealt
with merely because there seems to be no good reason why it should
have been omitted, and the omission appears to be consequentially
unintentional.
Reasonable corrections are not to over-ride plain terms of a
statute. A construction that will render ineffective any part of the
language of a statute will normally be rejected.
For example, if an Act plainly gave a right of appeal from one Court of
Quarter Sessions to another, it was held that such a provision though
extraordinary and perhaps an oversight could not be eliminated.
This Rule of literal interpretation can be read and understood under the
following headings:

Different headings for literal construction

• Natural and grammaticalmeaning

• Explanation
• Exact meaning, leading to loose meaning
• Technical words in technical sense

(I) Natural and grammatical meaning: Statute are to be first

understood in their natural, ordinary, or popular sense and must be
construed according to their plain, literal and grammatical meaning. If
there is an inconsistency with any express intention or declared
purpose of the statute, or it involves any absurdity, repugnancy,
inconsistency, the grammatical sense must then be modified, extended
or abridged only to avoid such an inconvenience, but no further.
[(State of HP v. Pawan Kumar(2005)]
Example: In a question before the court whether the sale of betel
leaves was subject to sales tax. In this matter SC held that betel leaves
could not be given the dictionary, technical or botanical meaning
when the ordinary and natural meaning is clear and unambiguous.
Being the word of everyday use it must be understood in its popular
 sense by which people are conversant with it as also the meaning
which the statute dealing with the matter would attribute to it.
Therefore, the sale of betel leaves was liable to sale tax. (Ramavtar
V. Assistant Sales Tax Officer, AIR 1961 SC 1325)
Explanation of the Rule: When it is said that words are to be
understood first in their natural, ordinary or popular sense, it is
meant that the words must be qualified that natural, ordinary or
popular meaning which they have in relation to the subject matter with
reference to which and the context in which they have been used in
the statute. The meaning of a word depend upon its text and context.
In the construction of statutes, the context means the statute as a
whole and other statutes in pari materia (where two
enactments have common purpose in an analogous case).
Example: In construing of the Andhra Pradesh General Sales Tax
Rules, 1957, the words “Livestock” means all domestic animals will
not include ‘chicks’ construing in the popular sense although in
literal sense animal refers to any and every animate object as distinct
from inanimate object. (Royal Hatcheries Pvt. Ltd v. State of AP,
AIR 1994 SC 666)
(II) Exact meaning preferred to loose meaning: This is the
another point regarding the rule of literal construction that exact
meaning is preferred to loose meaning in an Act of Parliament. As
every word has a secondary meaning too. Therefore, in applying
this rule one should be careful not to mix up the secondary
meaning with the loose meaning. Wherever the secondary
meaning points to that meaning which statute meant, preference
should be given to that secondary meaning.
Example: Word ‘obtain ’in it general sense means some request or
effort to acquire or get something but its secondary meaning is to
acquire or get without any qualification and if in a statute the
secondary meaning is preferred, it cannot be said that preference
has been given to loose meaning.
(III) Technical words in technical sense: This point of literal construction is that
technical words are understood in the technical sense only.
Example, in construing of word ‘practice’ in Supreme Court Advocates Act, 1951, it
was observed that practice of law generally involves the exercise of both the functions
of acting and pleading on behalf of a litigant party. When legislature confers upon
an advocate the right to practice in a court, it is legitimate to understand that expression
as authorizing him to appear and plead as well as to act on behalf of suitors in that
court.(Ashwini Kumar Ghose V. Arabinda Bose AIR 1952 SC 369)

(2) Golden Rule of Interpretation

The Golden rule, or British rule, is a form of statutory interpretation that
allows a judge to depart from a word's normal meaning in order to avoid
an absurd result. It is a compromise between the plain meaning (or literal)
rule and the mischief rule. Like the plain meaning rule, it gives the words
of a statute their plain, ordinary meaning. However, when this may lead to
an irrational result that is unlikely to be the legislature's intention, the
judge can depart from this meaning.
In the case of homographs, where a word can have more than one
meaning, the judge can choose the preferred meaning; if the word only has
one meaning, but applying this would lead to a bad decision, the judge can
apply a completely different meaning. This rule may be used in two ways.
It is applied most frequently in a narrow sense where there is some
ambiguity or absurdity in the words themselves. For example, imagine
there may be a sign saying "Do not use lifts in case of fire." Under the
literal interpretation of this sign, people must never use the lifts, in case
there is a fire. However, this would be an absurdresult, as the intention of
the person who madethe sign is obviously to prevent people from using
the lifts only if there is currently a fire nearby.
The second use of the golden rule is in a wider sense, to avoid a result that
is obnoxious to principles of public policy, even where words have only
one meaning. Example: The facts of a case are; a son murdered his mother
and committed suicide. The courts were required to rule on who then
inherited the estate, the mother's family, or the son's descendants. There
was never a question of the son profiting from his crime, but as the
outcome would have been binding on lower courts in the future, the court
found in favour of the mother's family.
The Mischief Rule
The mischief rule is a rule of statutory interpretation that attempts to
determine the legislator's intention. Originating from a 16th century case
(Heydon’s case) in the United Kingdom, its main aim is to determine the
"mischief and defect" that the statute in question has set out to remedy,
and what ruling would effectively implement this remedy. When the
material words are capable of bearing two or more constructions the most
firmly established rule or construction of such words “of all statutes in
general be they penal or beneficial, restrictive or enlarging of the common
law is the rule of Heydon’s case.
The rules laid down in this case are also known as Purposive Construction
or Mischief Rule. The mischief rule is a certain rule that judges can apply
in statutory interpretation in order to discover Parliament's intention. It
essentially asks the question: By creating an Act of Parliament what was
the "mischief" that the previous law did not cover? Heydon’s case This
was set out in Heydon's Case [1584], where it was stated that there were
four points to be taken into consideration when interpreting a statute:
1. What was the common law before the making of the act?
 2. What was the "mischief and defect" for which the common law did not
provide?
3. What remedy the parliament hath resolved and appointed to cure the
disease of the commonwealth?
4. What is the true reason of the remedy?
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
privatocommodo, and to add force and life to thecure and remedy, according to
the true intent of the makers of the Act, pro bono publico.
The application of this rule gives the judge more discretion than the
literal and the golden rule as it allows him to effectively decide on Parliament's
intent. It can be argued that this undermines Parliament's supremacy and is
undemocratic as it takes law making decisions away from the legislature.

Use of this Rule

This rule of construction is of narrower application than the golden rule
or the plain meaning rule, in that it can only be used to interpret a statute and,
strictly speaking, only when the statute was passed to remedy a defect in the
common law. Legislative intent is determined by examining secondary
sources, such as committee reports, treatises, law review articles and
corresponding statutes. This rule has often been used to resolve ambiguities in
cases in which the literal rule cannot be applied.
In the case of Thomson vs. Lord Clan Morris, Lord Lindley M.R. stated
that in interpreting any statutory enactment regard must be had not only to the
words used, but also to the history of the Act and the reasons which lead to its
being passed.
In the case of CIT vs. Sundaradevi (1957) (32 ITR 615) (SC), it was
held by the Apex Court that unless there is an ambiguity, it would not be open
to the Court to depart from the normal rule of construction which is that the
intention of the legislature should be primarily to gather from the words which
are used. It is only when the words used are ambiguous that they would stand
to be examined and considered on surrounding circumstances and
constitutionally proposed practices. The Supreme Court in Bengal Immunity
Co. V. State of Bihar, (AIR 1995 SC 661) applied the mischief rule in
construction of Article 286 of the Constitution of India. After referring to the
state of law prevailing in the province prior to the constitution as also to the
chaos and confusion that was brought about in inter-state trade and commerce
by indiscriminate exercise of taxing powers by the different Provincial
Legislatures founded on the theory of territorial nexus, Chief Justice S.R.Das,
stated “It was to cure this mischief of multiple taxation and to preserve the free
flow of interstate trade or commerce in the Union of India regarded as one
economic unit without any provincial barrier that the constitution maker
adopted Article 286 in the constitution”.
In various Supreme Court cases it has been held that, ‘legislation both
statutory and constitutional is enacted, it is true, from experience of evils. But
its general language should not, therefore, necessarily be confined to the form
that evil had taken. Time works changes, brings into existence new conditions
and purposes and new awareness of limitations. A principle to be valued must
be capable of wider application than the mischief which gave it existence. This
is particularly true of the constitutional constructions which are not ephemeral
enactments designed to meet passing occasions. These are designed to
approach immortality as nearly as human institutions can approach it’.
Mischief Rule is applicable where language is capable of more than one
meaning. It is the duty of the Court to make such construction of a statue
which shall suppress the mischief and advance the remedy.
Advantages –
1) The Law Commission sees it as a far more satisfactory way of
interpreting acts as opposed to the Golden or Literal rules.
2) It usually avoids unjust or absurd results in sentencing
. Disadvantages –
1) It is considered to be out of date as it has been in use since the 16th
century, when common law was the primary source of law and parliamentary
supremacy was not established.
2) It gives too much power to the unelected judiciary which is argued to
be undemocratic.
3) In the 16th century, the judiciary would often draft acts on behalf of
the king and were therefore well qualified in what mischief the act was meant
to remedy.
4) It can make the law uncertain.
Rule of Reasonable Construction
Every statute has a purpose, an objective. If the literal meaning collides
with the reason of enactment of the statute then the intention of the law should
be taken up so that the actual meaning of the statute can be properly
understood. This rule mainly stresses upon the intention of the legislature to
bring up the statue and the sensible and not the prima facie meaning of the
statute. This helps us clear the errors caused due to faulty draftsmanship.
However, this rule also has its own limitations. The intent of the statute is in
itself a surmise and the rule is usually avoided to complete the quest for
interpretation unless the intent in itself can be interpreted properly.

3 Rule of Reasonable Construction: According to this Rule, the words of a

statute must be construed ‘ut res magis valeat quam pereat’ meaning thereby that
words of statute must be construed so as to lead to a sensible meaning. Generally the
words or phrases of a statute are to be given their ordinary meaning. A statute must be
construed in such a manner so as to make it effective and operative on the principle of ut
res magis valeat quam pereat. So while interpreting a law, two meanings are possible,
one making the statute absolutely vague and meaningless and other leading to
certainty and a meaningful interpretation, in such case the later interpretation should
be followed.(Pratap Singh v State of Jharkhand(2005)3 SCC 551)
Example, in the case of Dr. A.L. Mudaliar vs. LIC of India (1963) 33 Comp Cas.
420 (SC), it was held that the Memorandum of Association of a company must be read fairly
and its import derived from a reasonable interpretation of the language which it
employs. Further, in order to determine whether a transaction is intra vires the objects of
a company, the objects clause should be reasonably construed: neither with rigidity
nor with laxity. [Waman Lal Chotanlal Parekh vs. Scindia Steam Navitation Co.
Ltd. (1944) 14 Comp. Cas. 69 (Bom.)].
Thus, if the Court finds that giving a plain meaning to the words will not be a fair or
reasonable construction, it becomes the duty of the court to depart from the dictionary
meaning and adopt the construction which will advance the remedy and suppress the
mischief provided the Court does not have to resort to conjecture or surmise. A
reasonable construction will be adopted in accordance with the policy and object of the
statute.
(3) Rule of Harmonious Construction: When there is doubt about
the meaning of the words of a statute, these should be understood in the sense in which
they harmonise with the subject of the enactment and the object which the legislature had in
view. Their meaning is found not so much in a strictly grammatical or etymological
propriety of language, nor even in its popular use, as in the subject or in the occasion on
which they are used and the object to be attained.
Where there are in an enactment two or more provisions which cannot be reconciled
with each other, they should be so interpreted, wherever possible, as to give effect to all of
them. This is what is known as the Rule of Harmonious Construction. An effort should
be made to interpret a statute in such a way as harmonises with the object of the statute.
Example: As per the facts given in the Raj Krishna V. Binod AIR1954 SC 202, there
was a conflict between section 33(2) and 123(8) of the Representation of People Act, 1951.
Section 33(2) stated that a government servant may nominate or second a candidate
seeking election, whereas section 123(8) provided that a government servant is not
entitled to assist a candidate in an election in any manner except by casting his vote. SC
observed that both these provision should be harmoniously interpreted and held that a
government servant was entitled to nominate or second a candidate seeking election to
the state legislature assembly. This harmony could be achieved 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.
Example: Conflict between section 17(1) and section 18(1) of the Industrial Disputes
Act, 1947 applies the principal of Harmonious construction by harmonizing apparent
conflict between two or more of its provisions. Section 17 of the Act provides that (1)
Every report of a Board or court together with any minute of dissent recorded therewith,
every arbitration award and every award of a Labour Court, Tribunal or National Tribunal
shall, within a period of thirty days from the date of its receipt by the appropriate
government, be published in such manner as the appropriate government thinks fit.
Whereas sub-section (2) provides that the award published under sub-section (1) shall be
final and shall not be called in question by any court in any manner whatsoever.
Section 18(1) of the Act provides that a settlement arrived at by agreement between the
employer and workman otherwise than in the course of conciliation proceeding shall be
binding on the parties to the agreement.In case where a settlement is arrived after receipt
of the award of the Labour Tribunal by the Government before its publication, the issue
was whether the Government was still required by section 17(1) to publish the award.
On construction of these two provisions, Supreme Court held that settlement which
becomes effective from the date of signing, the industrial dispute comes to an end and the
 award becomes ineffective and the government cannot publish it. [Sirsilk Ltd. V. Govt.
of Andhra Pradesh, AIR 1964 SC160]. It must always be borne in mind that a statute is
passed as a whole and not in sections and it may well be assumed to be animated by one
general purpose and intent. The Court’s duty is to give effect to all the parts of a statute, if
possible. But this general principle is meant to guide the courts in furthering the intent of
the legislature, not overriding it. When rigid adherence to the general rule would require
disregard of clear indications to the contrary, this rule must be applied. The sections and
sub-sections must be read as parts of an integral whole and being inter-dependent.
Therefore, importance should not be attached to a single clause in one section overlooking
the provisions of another section. If it is impossible to avoid inconsistency, the provision
which was enacted or amended later in point of time must prevail. The Rule of
Harmonious Construction is applicable only when there is a real and not merely apparent
conflict between the provisions of an Act, and one of them has not been made subject to
the other. When after having construed their context the words are capable of only a
single meaning, the rule of harmonious construction disappears and is replaced by the rule
of literal construction.
4 Rule of Beneficial Construction: When the literal meaning of the statute defeats the
objective of the legislature, the court may depart from the dictionary and instead give
it a meaning which will advance the remedy and suppress the mischief. This supports
the initial and modern approach that is to effectuate the object and purpose of the act.
The main objective by extending the meaning of the statute is to ensure that its initial
purpose (public safety, maintenance of law and order) is justified.
This rule looks into the reasons as per why the statute was initially enacted and
promotes the remedial effects by suppressing the mischief. Though the rule almost
covers the main grounds of the statute but cannot be applied to Fiscal statutes. When a
word is ambiguous i.e. if it has multiple meanings, which meaning should be
understood by that word? This is the predicament that is resolved by the principle of
Beneficial Construction. When a statute is meant for the benefit of a particular class,
and if a word in the statute is capable of two meanings, one which would preserve the
benefits and one which would not, then the meaning that preserves the benefit must be
adopted. Omissions will not be supplied by the court, only when multiple meanings
are possible, can the court pick the beneficial one. Thus, where the court has to choose
between a wider mean that carries out the objective of the legislature better and a
narrow meaning, then it usually chooses the former. Similarly, when the language used
by the legislature fails to achieve the objective of a statute, an extended meaning could
be given to it to achieve that objective, if the language is fairly susceptible to the
extended meaning.
This is evident in the case of B Shah vs. Presiding Officer, AIR 1978, where Section 5
of Maternity Benefits Act, 1961 was is question, where an expectant mother could take
12 weeks of maternity leave on full salary. In this case, a woman who used to work 6
days a week was paid for only 6x12=72 days instead of 7x12=84 days. SC held that
the words 12 weeks were capable of two meanings and one meaning was beneficial to
the woman. Since it is a beneficial legislation, the meaning that gives more benefit to
the woman must be used. Beneficial Construction is a tendency and not a rule. The
reason is that this principle is based on human tendency to be fair, accommodating,
and just. Instead of restricting the people from getting the benefit of the statute, Court
tends to include as many classes as it can while remaining faithful to the wordings of
the statute. For example, in the case of Alembic Chemical Works vs. Workmen AIR
1961, an industrial tribunal awarded more number of paid leaves to the workers than
what Section 79(1) of Factories Act recommended. This was challenged by the
appellant. The Supreme Court held that the enactment being a welfare legislation for
the workers, had to be beneficially constructed in the favour of worker and thus, if the
words are capable of two meanings, the one that gives benefit to the workers must be
used.
Similarly, in U.Unichoyi vs. State of Kerala, 1963, the question was whether setting of
a minimum wage through Minimum Wages Act, 1948 is violative of Article 19(1)(g)
of the Constitution because the Act did not define what is minimum wage and did not
take into account the capacity of the employer to pay. It was held that the Act is a
beneficial legislation and it must be construed in favour of the worker. In an
underdeveloped country where unemployment is rampant, it is possible that workers
may become ready to work for extremely low wages but that should not happen.

(1) Rule of Exceptional Construction: The rule of exceptional

construction stands for the elimination of statutes and words in a statute which defeat the real
objective of the statute or make no sense. It also stands for construction of words ‘and’, ‘or’,
‘may’, ‘shall’ & ‘must’.
This rule has several aspects, viz.:
The Common Sense Rule: Despite the general rule that full effect must be given to
every word, if no sensible meaning can be fixed to a word or phrase, or if it would defeat
the real object of the enactment, it should be eliminated. The words of a statute must be
so construed as to give a sensible meaning to them, if at all possible. They ought to be
construed ‘utres magis valeat quam pereat’ meaning thereby that it is better for a
thing to have effect than to be made void.
a) Conjunctive and Disjunctive Words ‘or’ ‘and’: The word ‘or’ is normally disjunctive
and ‘and’ is normally conjunctive. However, at times they are read as vice versa to give
effect to the manifest intention of the legislature as disclosed from the context. This would
be so where the literal reading of the words produces an unintelligible or absurd result. In
such a case ‘and’ may by read for ‘or’ and ‘or’ for ‘and’ even though the result of so
modifying the words is less favourable to the subject, provided that the intention of the
legislature is otherwise quite clear.
Example: In the Official Secrets Act, 1920, as per section 7 any person who attempts to
commit any offence under the principal Act or this Act, or solicits or incites or
endeavours to persuade another person to commit an offence, or aids or abets and does any
act preparatory to the commission of an offence’. Here, the word ‘and’ in bold is to be read as
’or’. Reading ‘and’ as ‘and’ will result in unintelligible and absurd sense and against the
clear intention of the Legislature. [R v. Oakes, (1959)]
b) ‘May’, ‘must’ and ‘shall’: Before discussing this aspect, it would be worth- while to
note the terms ‘mandatory’ and ‘directory’. Practically speaking, the distinction
between a provision which is ‘mandatory’ and one which is ‘directory’ is that when it is
 mandatory, it must be strictly observed; when it is ‘directory’ it would be sufficient that it is
substantially complied with. However, we have to look to the substance and not merely
the form: an enactment in mandatory form might substantially be directory and,
conversely, a statute in directory form may in substance be mandatory. Hence, it is the
substance that counts and must take precedence over mere form. If a provision gives a power
coupled with a duty, it is mandatory: whether it is or is not so would depend on such
consideration as:
— the nature of the thing empowered to be done,
— the object for which it is done, and
— the person for whose benefit the power is to be exercised
‘May’: It is well settled that enabling words are construed as compulsory, wherever the
object of the power is to give effect to a legal right: the use of the word ‘may’ in a statutory
provision would not by itself show that the provision is directory in nature. In some cases,
the legislature may use the word ‘may’ as a
matter of pure conventional courtesy and yet intend a mandatory force. Therefore, in
order to interpret the legal import of the word ‘may’, we have to consider various factors,
Example the object and the scheme of the Act, the context or background against which
the words have been used, the purpose and advantages of the Act sought to be achieved by
use if this word and the like.
Where the word ‘may’ involves a discretion coupled with an obligation or where it confers a
positive benefit to the general class of subjects, or where a remedy would be advanced
and a mischief suppressed, or where giving the word a directory significance would
defeat the very object of the Act then word ‘may’ should be interpreted to convey a
mandatory force. Thus, where a discretion is conferred upon a public authority coupled
with an obligation, the word ‘may’ should be construed to mean a command. Similarly
when an order of the Government or a statute confers a power on an authority in the
discharge of a public duty, and though such power appears to be merely permissive, it is
imperative that the authority should exercise that power in the discharge of its duties: there
the word ‘may’ assumes mandatory force.
The, word ‘may’ is often read as ‘shall’ or ‘must’ when there is something in the
nature of the thing to be done, which makes it the duty of the person on whom the power is
conferred to exercise the power. No general rule can be laid down for deciding whether any
 particular provision in a statute is mandatory, meaning thereby that non-observance thereof
involves the consequences of invalidity, or only directory, i.e. a discretion, non-observance
of which does not entail the consequence of invalidity, whatever other consequences may
occur. But in each case the Court has to decide the legislature’s intent. Did the legislature
intend in making the statutory provision that non observance of this would entail invalidity or
did it not? To decide this, we have to consider not only the actual words used, but the
scheme of the statute, the intended benefit to the public or what is enjoined by the
provisions and the material danger to the public by the contravention of the scheme.
The use of the expression ‘shall’ or ‘may’ is not decisive. Having regard to the context,
the expression ‘may’ has varying significance. In one context, it may be purely permissive,
while in another context it may confer a power and make it obligatory upon the person
invested with the power to exercise it as laid down. Therefore, while undoubtedly the word
‘may’ generally does not mean ‘must’ or ‘shall’ yet the same word ‘may’ is capable of
meaning ‘must’ or ‘shall’ in the light of the context in which it occurs.
(i) Shall: the use of the word shall would not of itself make a provision of the
act mandatory. It has to be construed with reference to the context in which it is used. Thus, as
against the Government the word ‘shall’ when used in statutes is to be construed as ‘may’
unless a contrary intention is manifest. Hence, a provision in a criminal statute that the
offender shall be punished as prescribed in the statute is not necessarily to be taken as
against the Government to direct prosecution under that provision rather than under some
other applicable statute.
Therefore, generally speaking when a statute uses the word ‘shall’ prima facie it is mandatory
but it is sometimes not so interpreted if the context or intention of the legislature otherwise
demands. Thus, under certain circumstances the expression ‘shall’ is construed as ‘may’. Yet, it
has to be emphasized that the term ‘shall’ in its ordinary significance, is mandatory and the
Court shall ordinarily give that interpretation to the term, unless such an interpretation leads
to some absurd or inconvenient consequence or be at variance with the intent of the
legislature to be collected from other parts of the Act.
For ascertaining the real intention of the legislature, the Court may consider amongst
other things:
— the nature and design of the statute,
— the consequence which would flow from construing it one way or the other,
— the impact of other provisions by resorting to which the necessity of complying with the
 provision in question can be avoided,
— whether or not the statute provides any penalty if the provision in question is not complied
with,
— if the provision in question is not complied with, whether the consequences would be trivial
or serious, and
— most important of all, whether the object of the legislation will be defeated or furthered.
Where a specific penalty is provided in statute itself for non-compliance with the particular
provision of the Act, no discretion is left to the Court to determine whether such
provision is directory or mandatory – it has to be taken as mandatory.
The use of word ‘shall’ with respect to one matter and use of word ‘may’ with respect to
another matter in the same section of at statute, will normally lead to the conclusion that the
word ‘shall’ imposes an obligation, whereas word ‘may” ’confers a discretionary power
(Labour Commr., M.P.V. Burhanpur Tapti Mill, AIR, 1964 SC1687).
(2) Rule of Ejusdem Generis: The term ‘ejusdem generis’ means ‘of
the same kind or species’. Simply stated, the rule means:
) Where any Act enumerates different subjects, general words following specific words are
to be construed (and understood) with reference to the words that precede them. Those
general words are to be taken as applying to things of the same kind as the specific words
previously mentioned, unless there is something to show that a wider sense was intended.
Thus, the rule of ejusdem generis means that where specific words are used and after those
specific words, some general words are used, the general words would take their colour from
the specific words used earlier.
For instance ‘in the expression in consequence of war, disturbance or any other cause’, the
words ‘any other cause’ would take colour from the earlier words ‘war, disturbance’ and
therefore, would be limited to causes of the same kind as the two named instances.
Similarly, where an Act permits keeping of dogs, cats, cows, buffaloes and other animals,
the expression ‘other animals’ would not include wild animals like lions and tigers, but
would mean only domesticated animals like horses, etc.
Where there was prohibition on importation of ‘arms, ammunition, or gunpower or any
other goods’ the words ‘any other goods’ were construed as referring to goods similar to
‘arms, ammunition or gun powder’ (AG vs. Brown (1920), 1 KB 773).
i) If the particular words used exhaust the whole genus (category), then the general words are
to be construed as covering a larger genus.
ii) We must note, however, that the general principle of ‘ejusdem generis’ applies only
where the specific words are all the same nature. When they are of different categories, then
the meaning of the general words following those specific words remains unaffected-those
general words then would not take colour from the earlier specific words.
In the expression charges, rates, duties and taxes’, the term charges was read ejusdem generis
taking colour from the succeeding terms rates, duties, and taxes. Here, the general category
preceded the enumeration of specific categories and so rule of ejusdem generis was
technically not applicable and the court in fact applied the more general rule- Noscitur a
sociis and rightly limited the meaning of the term charges.

Rule Applies When-

Statute contains an enumeration of specific words

The subjects of enumeration constitute a class or category

ThatclassorcategoryIsnotexhaustedbytheenumeration

The general terms follow enumeration, and

There is no indication of a different legislative intent

It is also to be noted that the courts have a discretion whether to apply the ‘ejusdem
generis’ doctrine in particular case or not. For example, the ‘just and equitable’ clause in
the winding-up powers of the Courts is held to be not restricted by the first five situations
in which the Court may wind up a company.
) OTHER (SECONDARY) RULES OF INTERPRETATION.
(1) Effect of usage: Usage or practice developed under the statute is indicative of
 the meaning recognized to its words by contemporary opinion. A uniform notorious
practice continued under an old statute and inaction of the Legislature to amend the same are
important factors to show that the practice so followed was based on correct
understanding of the law. When the usage or practice receives judicial or legislative
approval it gains additional weight.
In this connection, we have to bear in mind two Latin maxims:
) ‘Optima Legum interpres est consuetude’ (the custom is the best interpreter of the
law); and
‘Contempranea exposito est optima et fortissinia in lege’ (the best way to interpret
a document is to read it as it would have been read when made). Therefore, the best
interpretation/construction of a statute or any other document is that which has been made
by the contemporary authority.
Simply stated, old statutes and documents should be interpreted as they would have been at the
time when they were enacted/written.
Contemporary official statements throwing light on the construction of a statute and statutory
instruments made under it have been used as contemporanea exposition to interpret not
only ancient but even recent statutes in India.
Example: Documents issued by the Government simultaneously with the
notification under section 16(1) of the Securities Contracts (Regulation) Act, 1956 were used
as contemporanea expositio of the notification. [DeshBandhu Gupta & Co. v. Delhi
Stock Exchange Association Ltd., AIR 1979 SC]
1) Associated Words to be Understood in Common Sense Manner: When two
words or expressions are coupled together one of which generally excludes the other,
obviously the more general term is used in a meaning excluding the specific one. On the
other hand, there is the concept of ‘Noscitur A Sociis’ (‘it is known by its associates’), that
is to say ‘the meaning of a word is to be judged by the company it keeps’. When two or more
words which are capable of analogous (similar or parallel) meaning are coupled together,
they are to be understood in their cognate sense (i.e. akin in origin, nature or quality). They
take, as it were, their colour from each other, i.e., the more general is restricted to a
sense analogous to the less general. It is a rule wider than the rule of ejusdem generis, rather
ejusdem generis is only an application of the noscitur a sociis. It must be borne in mind that
nocitur a sociis, si merely 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.
For example, in the expression ‘commercial establishment means an establishment
which carries on any business, trade or profession’, the term ‘profession’ was construed
with the associated words ‘business’ and ‘trade’ and it was held that a private dispensary was
not within the definition. (Devendra M. Surti (Dr.) vs. State of Gujrat, AIR 1969 SC
63 at 67).
The term ‘entertainment’ would have a different meaning when used in the expression
‘houses for public refreshment, resort and entertainment’ than its generally understood
meaning of theatrical, musical or similar performance. Similarly, the expression ‘place of
public resort’ would have one meaning when coupled with the expression ‘roads and streets’
and the same express ‘place of public resort’ would have quite a different meaning when
coupled with the word ‘houses’.
In construing of the terms powers, privileges and immunities of a house of the
Legislature of a state conferred in the Article 194 of the Constitution, the Supreme
court said that the word ‘powers’ must take its colour from words in immediate
connection with it and that it should be construed to refer not to legislative powers but to
powers of a house which are necessary for the conduct of its business. [State of Karnataka
v. Union of India, AIR 1978 SC].
2 Associated Words to be Understood in Common Sense Manner:
When two words or expressions are coupled together one of which generally excludes the
other, obviously the more general term is used in a meaning excluding the specific one. On
the other hand, there is the concept of ‘Noscitur A Sociis’ (‘it is known by its associates’),
that is to say ‘the meaning of a word is to be judged by the company it keeps’. When two or
more words which are capable of analogous (similar or parallel) meaning are coupled
together, they are to be understood in their cognate sense (i.e. akin in origin, nature or
quality). They take, as it were, their colour from each other, i.e., the more general is
restricted to a sense analogous to the less general. It is a rule wider than the rule of ejusdem
generis, rather ejusdem generis is only an application of the noscitur a sociis. It must be
borne in mind that nocitur a sociis, si merely 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.
 For example, in the expression ‘commercial establishment means an establishment
which carries on any business, trade or profession’, the term ‘profession’ was construed
with the associated words ‘business’ and ‘trade’ and it was held that a private dispensary was
not within the definition. (Devendra M. Surti (Dr.) vs. State of Gujrat, AIR 1969 SC
63 at 67).
The term ‘entertainment’ would have a different meaning when used in the expression
‘houses for public refreshment, resort and entertainment’ than its generally understood
meaning of theatrical, musical or similar performance. Similarly, the expression ‘place of
public resort’ would have one meaning when coupled with the expression ‘roads and streets’
and the same express ‘place of public resort’ would have quite a different meaning when
coupled with the word ‘houses’.
In construing of the terms powers, privileges and immunities of a house of the Legislature
of a state conferred in the Article 194 of the Constitution, the Supreme court said that
the word ‘powers’ must take its colour from words in immediate connection with it and
that it should be construed to refer not to legislative powers but to powers of a house which
are necessary for the conduct of its business. [State of Karnataka v. Union of India, AIR
1978 SC]
The General Clauses Act, 1897
The General Clauses Act, 1897 was enacted on March 11, 1897 to combine and
expand the General Clauses Act, 1868 and 1887. The general definitions provided
under the Act shall be applicable to all Central Acts and Regulation where there is no
definition in the Act that conflicts with the provisions of the Central Acts or
regulations.
The Act defines ‘affidavit’ as an assertion and declaration by persons who are
authorized by law to do so or proclaim other than for swearing. According to the Act,
a ‘document’ shall comprise of any written subject, expressed or depicted upon any
material in the mode of letter, numbers or marks or other modes that is planned to be
utilized to record that subject. An ‘immovable property’ means any land, profits that
obtained from the land and the things that are appended to the earth or enduringly
fastened to any object that are appended to the earth. A ‘movable property’ means the
property of all kind but not including immovable property. The Act further defines a
‘person’ as a company or organization or group of individuals, whether such body is
incorporated or not.
Where any Central legislation or any regulation enacted after the commencement of
this Act repeals any Act made or yet to be made, unless another purpose exists, the
repeal shall not:
• Renew anything not enforced or prevailed during the period at which repeal is
affected or;
• Affect the prior management of any legislation that is repealed or anything
performed or undergone or;
• Affect any claim, privilege, responsibility or debt obtained, ensued or sustained
under any legislation so repealed or;
• Affect any punishment, forfeiture or penalty sustained with regard to any offence
committed as opposed to any legislation or
• Affect any inquiry, litigation or remedy with regard to such claim, privilege, debt
or responsibility or any inquiry, litigation or remedy may be initiated, continued
or insisted.

MODULE 3
INTERNAL AIDS TO
INTERPRETATION/
CONSTRUCTION
Every enactment has its Title, Preamble, Heading, Marginal Notes,
Definitional Sections/Clauses, Illustrations etc. They are known as
‘internal aids to construction’ and can be of immense help in
interpreting/construing the enactment or any of its parts.

Long Title
Read the
Statute as Preamble
a Whole

Schedules Heading

Internal aids
to
construction

Marginal
Explanation
Notes

Definitional
Proviso
Sections

Illustrations
(a) Long Title: An enactment would have what is known as a ‘Short
Title’ and also a ‘Long Title’. The ‘Short Title’ merely identifies
the enactment and is chosen merely for convenience, the ‘Long
Title’ on the other hand, describes the enactment and does not
merely identify it.
It is now settled that the Long Title of an Act is a part of the Act. We
can, therefore, refer to it to ascertain the object, scope and purpose
of the Act and so is admissible as an aid to its construction.
Example: Full title of the Supreme Court Advocates (Practice in High
Courts) Act, 1951 specify that this is an Act to authorize Advocates of
the Supreme Court to practice as of right in any High Court.
So, the title of a statute is an important part of the Act and may be
referred to for the purpose of ascertaining its general scope and of
throwing light on its construction, although it cannot override the
clear meaning of the enactment. [Aswini kumar Ghose v.
Arabinda Bose, AIR 1952 SC]
(b) Preamble: The Preamble expresses the scope, object and purpose
of the Act more comprehensively than the Long Title. The Preamble
may recite the ground and the cause of making a statute and the evil
which is sought to be remedied by it.
Like the Long Tile, the Preamble of a Statute is a part of the enactment
and can legitimately be used for construing it. However, the Preamble
does not over-ride the plain provision of the Act but if the wording
of the statute gives rise to doubts as to its proper construction, for
example, where the words or phrase has more than one meaning and
a doubt arises as to which of the two meanings is intended in the Act,
the Preamble can and ought to be referred to in order to arrive at the
proper construction.
In short, the Preamble to an Act discloses the primary intention of
the legislature but can only be brought in as an aid to construction
if the language of the statute is not clear. However, it cannot
 override the provisions of the enactment.
Example: Use of the word ‘may’ in section 5 of the Hindu
Marriage Act, 1955 provides that “a marriage may be solemnized
between two Hindus…..” has been construed to be mandatory in the
sense that both parties to the marriage must be Hindus as defined in
section 2 of the Act. It was held that a marriage between a Christian
male and a Hindu female solemnized under the Hindu Marriage Act
was void. This result was reached also having regard to the preamble
of the Act which reads: ‘An Act to amend and codify the law
relating to marriage among Hindus” [Gullipoli Sowria Raj V.
Bandaru Pavani, (2009)1 SCC714]
(c) Heading and Title of a Chapter: If we glance through any Act,
we would generally find that a number of its sections applicable to
any particular object are grouped together, sometimes in the form of
Chapters, prefixed by Heading and/or Titles. These Heading and
Titles prefixed to sections or groups of sections can legitimately be
referred to for the purpose of construing the enactment or its parts.
However, there is a conflict of opinion about the weightage to be
given to them. While one section of opinion considers that a
heading is to be regarded as giving the key to the interpretation of
the clauses ranged under it and might be treated as ‘preambles to
the provisions following it’, the other section of opinion is
emphatic that resort to the heading can only be taken when the
enacting words are ambiguous. According to this view headings or
titles prefixed to sections or group of sections may be referred to
as to construction of doubtful expressions, but cannot be used to
restrict the plain terms of an enactment.
We must, however, note that the heading to one group of sections
cannot be used to interpret another group of sections.
Example: Chapter contained in the Code of Criminal Procedure, 1973
read as ‘Limitation for taking cognizance of certain offences’, was
not held to be controlling and it was held that a cumulative reading of
various provisions in the said chapter clearly indicated that the
 limitation prescribed therein was only for the filing of the complaint or
initiation of the prosecution and not for taking cognizance. [Bharat
Damodar Kale v. State of A.P., air 2003 SC]
(d) Marginal Notes: Although there is difference of opinion regarding
resort to Marginal Notes for construing an enactment, the generally
held view is that the Marginal Notes appended to a Section cannot be
used for construing the Section. In C.I.T. vs. Ahmedbhai
Umarbhai & Co. (AIR 1950 SC 134 at 141), Patanjali Shastri, J.,
had declared: “Marginal notes in an Indian statute, as in an Act, of
Parliament cannot be referred to for the purpose of construing
the statute”, and the same view has been taken in many other cases.
Many cases show that reference to marginal notes may be
permissible in exceptional cases for construing a section in a
statute.
[Deewan Singh v. Rajendra Pd. Ardevi, (2007)10 SCC ,
Sarabjit Rick Singh v. Union of India, (2008) 2 SCC]
However, marginal notes appended to Articles of the Constitution
have been held to be part of the Constitution as passed by the
Constituent Assembly and therefore have been made use of in
construing the Articles.
Example: Article 286 of the constitution furnishing “prima facie”,
some clue as to the meaning and purpose of the Article [Bengal
Immunity Co. Ltd. v. State of Bihar, AIR1955SC]
(e) Definitional Sections/Interpretation Clauses: The
legislature has the power to embody in a statute itself the
definitions of its language and it is quite common to find in the
statutes ‘definitions’ of certain words and expressions used in
the body of the statute. When a word or phase is defined as having
a particular meaning in the enactment, it is that meaning alone which
must be given to it in interpreting a Section of the Act unless there be
anything repugnant in the context. The Court cannot ignore the
statutory definition and try and extract what it considers to be the
 true meaning of the expression independently of it.
The purpose of a definition clause is two-fold: (i) to provide a key
to the proper interpretation of the enactment, and (ii) to shorten the
language of the enacting part by avoiding repetition of the same words
contained in the definition part every time the legislature wants to

to shorten the language of the enacting

toprovideakeytotheproper part by avoiding repetition of the same
interpretation of the enactment words containedinthedefinitionpart.

refer to the expressions contained in the definition.

Construction of definitions may understood under the following

headings:
(i) Restrictive and extensive definitions
(ii) Ambiguous definitions
(iii) Definitions subject to a contrary context
(i) Restrictive and extensive definitions: The definition of a word
or expression in the definition section may either be restricting of its
ordinary meaning or may be extensive of the same.
When a word is defined to ‘mean’ such and such, the
definition is ‘prima facie’ restrictive and exhaustive we must
restrict the meaning of the word to that given in the definition
section.
But where the word is defined to ‘include’ such and such,
the definition is ‘prima facie’ extensive: here the word
defined is not restricted to the meaning assigned to it but has
extensive meaning which also includes the meaning
assigned to it in the definition section.
We may also find a word being defined as ‘means and
includes’ such and such: here again the definition would be
exhaustive.
On the other hand, if the word is defined ‘to apply to and
include’,
the definition is understood as extensive.
Example: The usage of word ‘any’ in the definition connotes
extension for ‘any’ is a word of every wide meaning and prima
facie the use of it excludes limitation.
It has been a universally accepted principle that where an
expression is defined in an Act, it must be taken to have,
throughout the Act, the meaning assigned to it by the
definition, unless by doing so any repugnancy is created in
the subject or context.
Example: Inclusive definition of lease given under section
2(16)(c) of the Stamp Act, 1899 has been widely construed to
cover transaction for the purpose of Stamp Act which may not
amount to a lease under section 105 of the Transfer of
property Act, 1882. [State of Uttarakhand v. Harpal
Singh Rawat,(2011) 4 SCC 575]
Section 2(m) of the Consumer Protection Act, 1986 contains an
inclusive definition of ‘person’. It has been held to include a
‘company’ although it is not specifically named therein
[Karnataka Power Transmission Corporation v. Ashok
Iron Works Pvt. Ltd., (2009)3 SCC 240]
A definition section may also be worded as ‘is deemed to
include’ which again is an inclusive or extensive definition as
such a words are used to bring in by a legal fiction something
within the word defined which according to its ordinary
meaning is not included within it.
 For example: If A is deemed to be B, compliance with A is
in law compliance with B and contravention of A is in law
contravention of B
(ii) Ambiguous definitions: Sometime we may find that the
definition section may itself be ambiguous, and so it may have to
be interpreted in the light of the other provisions of the Act and
having regard to the ordinary meaning of the word defined.
Such type of definition is not to be read in isolation. It must be
read in the context of the phrase which it defines, realising that
the function of a definition is to give accuracy and certainty to a
word or phrase which would otherwise be vague and uncertain
but not to contradict it or depose it altogether.
Example: Termination of service of a seasonal worker after
the work was over does not amount to retrenchment as per
the Industrial Disputes Act, 1947. [Anil Bapurao Karase
v. Krishna Sahkari Sakhar Karkhana, AIR 1997 SC
2698]. But the termination of employment of a daily wager
who is engaged in a project, on completion of the project will
amount to retrenchment if the worker had not been told when
employed that his employment will end on completion of the
project. [S.M. Nilajkarv.Telecom District Manager
Karnataka, (2003)4 SCC].
(iii)Definitions subject to a contrary context: When a word
is defined to bear a number of inclusive meanings, the sense in
which the word is used in a particular provision must be
ascertained from the context of the scheme of the Act, the
language of the provision and the object intended to be
served thereby.
(f) Illustrations: We would find that many, though not all, sections
have illustrations appended to them. These illustrations follow the
text of the Sections and, therefore, do not form a part of the
Sections. However, illustrations do form a part of the statute and
 are considered to be of relevance and value in construing the text
of the sections. However, illustrations cannot have the effect of
modifying the language of the section and can neither curtail nor
expand the ambit of the section.
Example: In holding that section 73 of the Indian Contract Act ,
1872 does not permit the award of interest as damages for mere
detention of debt, the privy Council rejected the argument that
illustration given in the Act can be used for arriving at a contrary
result. It was observed that nor can an illustration have the effect of
modifying the language of the section which alone forms the
enactment.
In a case the Supreme court took the aid of illustration appended to section
43 of the Transfer of Property Act, 1882 for conclusion that the
said provision applies to transfer of spes succession is and enables the
transferee to claim the property, provided other conditions of
the sections are satisfied. Venkatarama Aiyer, J., observed that it is
not to be readily assumed that an illustration to a section is
repugnant to it and rejected. [Jumma Masjid v. Kodimaniandra
Deviah, AIR 1962 SC 847]
(g) Proviso: The normal function of a proviso is to except something
out of the enactment or to qualify something stated in the enactment
which would be within its purview if the proviso were not there. The
effect of the proviso is to qualify the preceding enactment which is
expressed in terms which are too general. As a general rule, a proviso
is added to an enactment to qualify or create an exception to what is in
the enactment. Ordinarily a proviso is not interpreted as stating a
general rule.
It is a cardinal rule of interpretation that a proviso to a particular
provision of a statute only embraces the field which is covered by the
main provision. It carves out an exception to the main provision
to which it has been enacted as a proviso and to no other. (Ram
Narain Sons Ltd. vs. Assistant Commissioner of Sales Tax,
AIR 1955 SC 765).
Distinction between Proviso, exception and saving Clause
There is said to exist difference between provisions worded as
‘proviso’,’ Exception’, or ‘Saving Clause’.

Differences

‘Saving clause’ is
‘Exception’ is ‘Proviso’ is used to used to preserve
intended to restrain remove special cases from destruction
the enacting clause to from general certain rights,
particular cases enactment and remedies or
provide for them privileges already
specially existing
(h) Explanation: An Explanation is at times appended to a section to explain the
meaning of the text of the section. An Explanation may be added to include
something within the section or to exclude something from it. An Explanation should
normally be so read as to harmonise with and clear up any ambiguity in the main
section. It should not be so construed as to widen the ambit of the section.
In Sundaram Pillai v. Pattabiraman, Fazal Ali, J. gathered the following
objects of an explanation to a statutory provision:

Explain the meaning and intendment of the Act itself

Clarify anyobscurityandvagueness(ifany)inthe mainenactmentto

makeitconsistentwiththeobject

Provide an additional support to the object of the Act to make it

meaningful andpurposeful

Fill up the gap which is relevant for the purpose of the explanation to
suppress the mischief and advance the object of theAct

Cannottakeawayastatutoryright

However, it would be wrong to always construe an explanation limited to the aforesaid

objects. The meaning to be given to an explanation will really depend upon its terms
and not on any theory of its purpose.
(i) Schedules: The Schedules form part of an Act. Therefore, they must be read together
with the Act for all purposes of construction. However, the expressions in the
Schedule cannot control or prevail over the expression in the enactment. If there
appears to be any inconsistency between the schedule and the enactment, the
 enactment shall always prevail. They often contain details and forms for working out the
policy underlying the sections of the statute for example schedules appended to the
Companies Act, 2013, to the Constitution of India.
(j) ‘Read the Statute as a Whole’: It is the elementary principle that construction
of a statute is to be made of all its parts taken together and not of one part only. Lord
Waston, speaking with regard to deeds had
stated thus: The deed must be read as a whole in order to ascertain the true meaning of its
several clauses, and the words of each clause should be so interpreted as to bring them
into harmony with other provisions – if that interpretation does no violence to the
meaning of which they are naturally susceptible. And the same approach would apply
with equal force with regard to Acts and Rules passed by the legislature.
One of the safest guides to the construction of sweeping general words is to examine
other words of like import in the same enactment or instrument to see what limitations
must be imposed on them. If we find that a number of such expressions have to be
subjected to limitations and qualifications and that such limitations and qualifications
are of the same nature, that circumstance forms a strong argument for subjecting the
expression in dispute to a similar limitation and qualification.
For example, if one section of an Act requires ‘notice’ should be given, then a verbal
notice would generally be sufficient. But, if another section provides that ‘notice’
should be ‘served’ on the person or ‘left’ with him, or in a particular manner or place,
then it would obviously indicate that a written notice was intended.
MODULE 4
EXTERNAL AID TO INTERPRETATION
Society does not function in a void. Everything done has its
reasons, its background, the particular circumstances prevailing at the
time, and so on. These factors apply to any enactment as well. These
factors are of great help in interpreting/construing an Act and have been
given the convenient nomenclature of ‘External Aids to
Interpretation’. Apart from the statute itself there are many matters
which may be taken into account when the statute is ambiguous. These
matters are called external aids. Some of these factors are enumerated
below:

External Aids
Earlier &
Consolidating Later Acts Use of
Historical Statutes & and Dictionary Foreign
Setting Usage Definitions
Previous Law Analogous Decisions
Acts
(a) Historical Setting: The history of the external circumstances which led to the
enactment in question is of much significance in construing any enactment.
We have, for this purpose, to take help from all those external or historical facts
which are necessary in the understanding and comprehension of the subject
matter and the scope and object of the enactment. History in general and
Parliamentary History in particular, ancient statutes, contemporary or other
authentic works and writings all are relevant in interpreting and construing an
Act. We have also to consider whether the statute in question was intended to
alter the law or leave it where it stood before.
(b) Consolidating Statutes & Previous Law: The Preambles to many
statutes contain expressions such as “An Act to consolidate” the previous law, etc.
In such a case, the Courts may stick to the presumption that it is not intended to
alter the law. They may solve doubtful points in the statute with the aid of such
presumption in intention, rejecting the literal construction.
(c) Usage: Usage is also sometimes taken into consideration in construing an Act.
The acts done under a statute provide quite often the key to the statute itself. It is
well known that where the meaning of the language in a statute is doubtful, usage
– how that language has been interpreted and acted upon over a long period –
may determine its true meaning. It has been emphasized that when a
legislative measure of doubtful meaning has, for several years, received an
interpretation which has generally been acted upon by the public, the Courts
should be very unwilling to change that interpretation, unless they see cogent
reasons for doing so.
(d) Earlier & Later Acts and Analogous Acts: Exposition of One Act
by Language of Another:
The general principle is that where there are different statutes in ‘pari
materia’ (i.e. in an analogous case), though made at different times, or even
expired and not referring to each other, they shall be taken and construed
together as one system and as explanatory of each other.
If two Acts are to be read together then every part of each Act has to
construed as if contained in one composite Act. But if there is some clear
discrepancy then such a discrepancy may render it necessary to hold the later
Act (in point of time) had modified the earlier one. However, this does not mean
that every word in the later Act is to be interpreted in the same way as in the
 earlier Act.
Where the later of the two Acts provides that the earlier Act should, so far as
consistent, be construed as one with it then an enactment in the later statute that
nothing therein should include debentures was held to exclude debentures from
the earlier statute as well.
Where a single section of one Act (say, Act ‘A’) is incorporated into another
statute (say Act ‘B’), it must be read in the sense which it bore in the original Act
from which it is taken consequently, it would be legitimate to refer to all the rest of
Act ‘A’ to ascertain what that Section means, though one Section alone is
incorporated in the new Act (Act ‘B’).
Suppose the earlier bye-law limited the appointment of the chairman of an
organisation to a person possessed of certain qualifications and the later bye-
law authorises the election of any person to be the chairman of the
organisation. In such a case, the later bye-law would be so construed as to
harmonise and not to conflict with the earlier bye-law: the expression ‘any
person’ used in the later bye-law would be understood to mean only any
eligible person who has the requisite qualifications as provided in the
earlier bye-law.
◆ Earlier Act Explained by the Later Act: Not only may the later Act be
construed in the light of the earlier Act but it (the later Act) sometimes furnishes a
legislative interpretation of the earlier one, if it is ‘pari materia’ and if, but
only if, the provisions of the earlier Act are ambiguous.
Where the earlier statute contained a negative provision but the later one merely omits
that negative provision: this cannot by itself have the result of substantive
affirmation. In such a situation, it would be necessary to see how the law would
have stood without the original provision and the terms in which the repealed
sections are re-enacted.
The general rules and forms framed under an Act which enacted that they should
have the same force as if they had been included in it any may also be referred to
for the purposes of interpretation of the Act.
◆ Reference to Repealed Act: Where a part of an Act has been repealed, it loses
its operative force. Nevertheless, such a repealed part of the Act may still be taken
into account for construing the un-repealed part. This is so because it is part of the
history of the new Act.
(e) Dictionary Definitions: First we have to refer to the Act in question to find
out if any particular word or expression is defined in it. Where we find that a word
is not defined in the Act itself, we may refer to dictionaries to find out the general
sense in which that word is commonly understood. However, in selecting one out
of the several meanings of a word, we must always take into consideration the
context in which it is used in the Act. It is the fundamental rule that the
meanings of words and expressions used in an Act must take their colour from
the context in which they appear. Further, judicial decisions laying down the
meaning of words in construing statutes in ‘pari materia’ will have greater
weight than the meaning furnished by dictionaries. However, for technical
terms reference may be made to technical dictionaries.
Use of Foreign Decisions: Foreign decisions of countries following the same
system of jurisprudence as ours and given on laws similar to ours can be
legitimately used for construing our own Acts. However, prime importance
is always to be given to the language of the Indian statute. Further, where
guidance can be obtained from Indian decisions, reference to foreign decisions
may become unnecessary.

MODULE 5
CONSTRUCTION OF PENAL STATUTES:

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.

According to Lord Esher, MR, the settled rule of construction of penal

sections is that ‘if there is a reasonable interpretation which will avoid
the penalty in any particular case we must adopt that construction. If
there are two reasonable constructions we must give the more lenient
one.’

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 Art 21. It
was held by the Supreme Court that they should so interpret such a
provision as to dilute it to make it amenable to Art 21 of the
Constitution.

When words employed in a penal statute are not clear the principle
‘against double penalisation’ would be applied. Failure to comply with
a statute may attract penalty. But only because a statute attracts
penalty for failure to comply with the statutory provisions, the same in
all situations would not call for a strict construction. An interpretation
which strikes a balance between enforcement of law and protection of
valuable human right of accused (right of privacy) must be resorted to.
§ 105 of the Evidence Act 1872 says that the burden to prove that the
case of the accused falls within an exception to a statutory offence lies
on him. But the question whether the defence set up by an accused is
really a defence of an exception or a defence setting up non-existence
of a fact which is an ingredient of the offence to be proved by the
prosecution depends upon the construction of the particular statute.

In applying and interpreting a penal statute, public policy is also taken

into consideration. In a recent case, the House of Lords held that
consensual sadomasochistic homosexual encounters which occasioned
actual bodily harm to the victim were assaults occasioning actual
bodily harm, contrary to § 47 of the Offences Against the Person Act
1861 and unlawful wounding contrary to § 20 0f the Act,
notwithstanding the victim’s consent to the acts inflicted on him. The
following are some of the propositions important in relation to strict
construction of penal statutes:

(a) if the scope of prohibitory words cover only some class of persons
or some well defined activity, their scope cannot be extended to cover
more on consideration of policy or object if the statute.

(b) prohibitory words can be widely construed only if indicated in the

statute. On the other hand if after full consideration no indication is
found the benefit of construction will be given to the subject.

(c) if the prohibitory words in their own signification bear wider

meaning which also fits in with the object or policy of the statute.

(i) JK (Bombay) Ltd v. Bharti Matha Mishra

In this case, it was held that the expression ‘officer or employee of a
company’ applies not only to the existing officer or employee but also
includes past officers or employees where such an officer or employee
either

· wrongfully obtains possession of any property, or

· wrongfully withholds the same after the termination of his
employment.

The expression would also include the ‘legal heirs or representatives.’

It was held by the court that the penal statutes should not be so
liberally construed with the aid of presumptions, assumptions and
implications as to rope in for the purposes of prosecution such persons
against whom the prosecution is not intended by the statute and
initiation of prosecution would be violative of Art 21 of the
Constitution and against public policy.

(ii) Virtual Soft Systems Ltd v. CIT

The questions that arose before the Supreme Court in the case prior to
the amendments by the Finance Act 2002 with effect from 1 April
2003 were:

· What was meant by the words ‘in addition to any tax payable’in the
charging § 27(1) (c) (iii)?
· What was meant by the term ‘total income’ in Explanation 4(a)
therein?

Allowing the appeals, it was held by the court that the statute crating
the penalty is the first and the last consideration and the penal
provision must be construed within the term and language of the
particular statute. § 271 of the Act is a penal provision and there are
well established principles for interpretation of such a penal provision.
Such a provision has to be construed strictly and narrowly and not
widely; with the object of advancing the object and intention of the
legislature.

(iii) Municipal Corpn of Delhi v. Laxmi Narain Tondon

In this case, the definition of ‘sale’ in the Prevention of Food
Adulteration Act 1954 was construed in the sense having regard to the
mischief intended to be remedied. It was held that the ‘sale’ in the Act
would include all commercial transactions where under an adulterated
article of food was supplied for consumption by one person to another
person. Therefore, supply or offer of food to hotelier to a customer
when consolidated charge was made for residence and other amenities
including food fell within the definition.

(iv) Tolaram v. State of Bombay

In this case, § 18 of the Bombay Rents, Hotels and Lodging Houses
Rates (Control) Act 1947 was construed. This section provided that ‘if
any landlord receives any fine, premium or other like sum or deposit
or any consideration other than the standard rent in respect of the
grant, renewal or continuance of a lease of any premise, such landlord
shall be punished.’ It was held by the Supreme Court that the section
did not prohibit the taking of money by owner of an incomplete
building in consideration.
Mens Rea in Statutory Offences
In the field of law, it is important to understand each and every cause of
each and every act. Only then can a sound judgment be given in a case.
If the judge does not consider all possible aspects and possibilities, then
he will draw the correct legal conclusion most of the times but, not
always. One of the most important things to consider with regard to any
offence is the mens rea, or the guily intention. This element of crime
(mens rea) has been in the picture almost ever since criminal law has
been known to exist. It had been incorporated in definitions of crimes as
far back as The Code of Hammurabi (1700 B.C.) through the use of
words like “intend” and “knowledge”. But, as the years have passed,
complexities regarding the use of mens rea have arisen and the courts
constantly keep trying to resolve the issues regarding the application of
the rule. Generally the question that arises in cases is that whether mens
rea is present or absent in the offender. But, sometimes, the question is
whether it is required or not. This happens in case of statutory offences.
They may expressly or impliedly rule out the requirement of mens rea.
The current research study critically analyzes this situation and takes
into account the existing views and decisions on the issue.

Statutory Offence
An offence is basically a violation of law. In legal parlance, the word
“offence” is generally construed as a criminal wrong. Hence, offence
means a wrong in penal law. The Code of Criminal Procedure, 1973
defines “offence”as “any act or omission made punishable by any law
for the time being in force and includes any act in respect of which a
complaint may be made under section 20 of the Cattle-trespass Act,
1871( 1 of 1871)”. This is a guideline for offences related to the Code.
But, there are other types of offences too; the ones that are created by
different statutes, like those related to taxation, national security, etc..
These are commonly referred to as Statutory offences. Offences have
been classified in many ways. But, for this study, the relevant
classification of offences would be into offences malum in se and
offences malum prohibitum. Offences that are malum in se are the ones
that are inherently wrong or evil, like murder, rape, etc.. The society at
large recognizes them as wrong. They have developed as offences over
the years and through decisions of the court. Hence, these are also called
Common Law offences as they are developed through precedents. On
the other hand, offences that are malum prohibitum are the acts that are
wrong because they are prohibited by statutes. For example, offences
created by Road Traffic Rules are not inherently wrong but, since they
are the rules that have to be followed on the road, their violation would
lead to penalty. Travelling in a car on the right side of the road is not
inherently wrong but, it is an offence as the law does not allow it. It is
these kinds of offences that are referred to as Statutory Offences. They
are the ones that are created by statutes which require strict
interpretation.

Statutory Offences are needed because, it is not only the crimes in the
Indian Penal Code, 1860 that can harm the society but, another very
important class of crimes (White Collar Crimes) also poses a big threat
on the society. Numerous scams have been unveiled in the past 20 years.
From Harshad Mehta to 2G scam, all have contributed towards harming
the society. In fact, in 1962, the Government of India under Lal Bahadur
Shastri (the then Home Minister) set up a Committee (Santhanam
Committee) on Prevention of Corruption, which proposed certain socio-
economic offences to be made a part of the Indian Penal Code, 1860 as a
new Chapter. But, unfortunately this did not happen.
These offences were as follows :-
1. Offences calculated to prevent or obstruct the economic development
of the country and endanger its economic health.
2. Evasion and avoidance of taxes lawfully imposed
3. Misuse of position by public servants in making of contracts and
disposal of public property, issue of licences and permits and similar
other matters
4. Delivery by individuals and industrial and commercial undertaking of
goods not in accordance with agreed specifications in fulfillment of
contracts entered into with public authorities
5. Profiteering, black-marketing and hoarding
6. Adulteration of foodstuffs and drugs
7. Theft and misappropriation of public property and funds
8. Trafficking in licences, permits, etc.

These crimes are very important for the society and protect public
interest. Hence, the offences falling under this class are known as
“Public Welfare Offences”. Hence, if a statute is enacted to recognize
them as criminal offences, they would be Statutory Offences,
commission of which would attract punishments.

Mens Rea
Actus non facit reum nisi mens sit rea

The above well-known latin maxim describes the relation between mens
rea and a crime in general. Actus reus means a wrongful act. Mens rea
means a wrongful intention. The maxim means that an act does not itself
make one guilty unless the mind is also guilty. The mere commission of
a criminal act or violation of law is not enough to constitute a crime.
These generally require, in addition, some elements of wrongful intent
or other fault. Mens Rea is a technical term. It means some blameworthy
condition of the mind, the absence of which on any particular occasion
negatives the condition of crime. It is one of the essential ingredients of
criminal liability. A criminal offences is said to have been committed
only when an act, which is regarded as an offence in law, is done
voluntarily. Hence, an act becomes criminal only when done with a
guilty mind.

Before a criminal is made liable, he should be proven to have some

blameworthy mental condition (mens rea). For example, when someone
attacks you, then, causing injury to him in private defence is not a crime
but, causing injury with the intention of revenge is a crime. This is how
the presence of a guilty mind changes the nature of the offence. But, the
requirement of a guilty mind varies from crime to crime. An intention
which would qualify as the required mens rea for one crime, may not for
some other crime. In case of murder, it is the intent to cause death; in
case of theft, it is the intention to steal; in case of rape, it is the intention
to have sexual intercourse with a woman without her consent, etc..
Hence, although mens rea is a sine qua non of a criminal act, its type and
degree may vary from crime to crime. But, there are cases in which
mens rea is not required for an act to be an offence (statutory offence).
Such situations will be discussed in the following sections of this study.

Presumption requiring mens rea

In statutory interpretation, certain presumptions are taken into account

by the court while interpreting the statutes. The presumption relevant
here is that a criminal act in general requires the presence of mens rea.
Almost all crimes that exist independently of any statute require, for
their commission, some blameworthy state of mind on the part of the
actor. Where a statute creates an offence, no matter how comprehensive
and absolute the language of the statute is, it is usually understood to be
silently requiring that the element of mens rea be imported into the
definition of the crime (offence) so defined, unless a contrary intention
is express or implied. Hence, the plain words of a statute are read subject
to a presumption (of arguable weight), which may be rebutted, that the
general rule of law that no crime can be committed unless there is mens
rea has not been ousted by the particular enactment. In the case of Brend
v. Wood, Lord Goddard, C.J. held that :-

“It is of the utmost importance for the protection of the liberty of the
subject that a court should always bear in mind that, unless a statute,
either clearly or by necessary implication, rules out mens rea as a
constituent part of a crime, the court should not find a man guilty of an
offence against the criminal law unless he has a guilty mind.”

Today, the kinds of offences are multiplied by various regulations and

orders to such an extent that it is difficult for most of the law abiding
subjects to avoid offending against the law at all times. Some law, out of
so many, could be violated by chance without a guilty intention at some
point of time. In these circumstances, it seems to be more important than
ever to adhere to this principle. But, there is more to it. In the past, it
also seemed that the importance of this presumption of mens rea was
declining in importance. In Hobbs v. Winchester Corporation, Kennedy,
L.J. said that “there is a clear balance of authority that in construing a
modern statute, this presumption as to mens rea does not exist.” This can
particularly hold good if Roscoe Pound’s definition of statutory offences
is considered. He said that “such statutes are not meant to punish the
vicious will but to put pressure on the thoughtless and inefficient to do
their whole duty in the interest of public health or safety or morals.”
There is also another angle to it. The world of today is one of machines.
There is widespread industrialization and rampant growth thereof.
Everywhere, there are high-powered machines. Very often, these
machines are dangerous and may pose a health hazard to the worker
employed. The Bhopal Gas Tragedy showed the world that
compromising on safety standards is the first thing that industries do to
cut costs. In respect of hazardous industry, the threat may not be just to
the workers of the factory as in Bhopal but, also to persons residing in
and around that area. In the said Tragedy, in 1984, there was a major gas
leak of MIC gas from the Union Carbide factory in Bhopal. Thousands
died and many are still suffering as a result thereof. Hence, it is in the
interest of the larger good that there are laws which lay down standards
and regulate the functioning of the industries, prevent, food adulteration,
corruption, etc., and that these laws are strictly applicable, i.e., they are
strictly construed without requiring mens rea in commission of the
offences they create. This would benefit the society at large.

But, since the view against the presumption of mens rea cannot be
applied universally in every case, after Hobbs’ Case, as years passed, the
courts again seemed to be favouring the use of the presumption. But,
later on, Lord Evershed analyzed the situation critically in a few of his
judgments, one of the most important of which is that in the case of
Reynolds v. G.H. Austin & Sons Ltd.. In this case, Lord Evershed said
that :-

“Where the subject matter of the statute is the regulation for the public
welfare of a particular activity – statutes regulating the sale of food and
drink are to be found among the earliest examples – it can be and
frequently has been inferred that the legislature intended that such
activities should be carried out under conditions of strict liability. The
presumption is that the statute or statutory instrument can be effectively
enforced only if those in charge of the relevant activities are made
responsible for seeing that they are complied with. When such a
presumption is to be inferred, it displaces the ordinary presumption of
mens rea. But, it is not enough merely to label the statute as one dealing
with a grave social evil and from that to infer that strict liability was
intended. It is pertinent also to inquire whether putting the defendant
under strict liability will assist in the enforcement of the regulations.
That means that there must be something he can do, directly or
indirectly, which will promote the observance of the regulations. Unless
this is so, there is no reason in penalizing him, and it cannot be inferred
that the legislature imposed strict liability merely in order to find a
luckless victim.”

Lord Evershed also said that 2 conditions must be satisfied if the

presumption as to mens rea is to be rebutted; first, that strict liability
must be required to give practical effect to the legislative intention; and,
secondly, the person charged with a breach of the statutory requirements
must have had some opportunity of furthering their observance. So, if
the presumption as to mens rea is a general rule, then presumption
against mens rea in statutory offences would be an exception to the rule.
In such a case, the presumption of mens rea in statutory offences would
in turn be an exception to that exception.

Presumption not used un Statutory Offences – an exception

This situation is one in which a statutory offence is committed and the
presumption requiring mens rea is not used to decide the case. There
have been many such cases in English as well as Indian courts. One of
the early ones is R. v. St. Margarets Trust Ltd.. In this case, a
contravention had occurred of Article 1 of the Hire-Purchase and Credit
Sale Agreements (Control) Order, 1956. The article provided that a
person should not dispose of any goods to which the Order applied in
pursuance of a hire-purchase agreement unless the requirements
specified in Schedule 2 of the Order were satisfied, the requirement
being that 50% of the cash price should be paid before the agreement
was signed. But, the said contravention was held to be an offence even
though the act was innocently done. The words of the order were “an
express and unqualified prohibition”. Its object was to help to defend the
currency against the peril of inflation which, if unchecked, would bring
disaster upon the country. Donovan, J. said that :-

“The present generation has witnessed the collapse of the currency in

other countries and the consequent chaos, misery and widespread ruin. It
would not be at all surprising if Parliament, determined to prevent
similar calamities here, enacted measures which it intended to be
absolute prohibitions of acts which might increase the risk of however
small a degree. There would be a little point in enacting that no one
should breach the defences against a flood, and at the same time
excusing anyone who did it innocently.”

Another important case in this respect would be that of Lockyer v. Gibb.

In this case, the Divisional Court held that being “in possession of a
drug” contrary to Regulation 9 of the Dangerous Drugs (No. 2)
Regulations, 1964 is an absolute offence. Although it must be proved
that the accused knew that he had the article which turned out to be a
drug, it need not be shown that he knew what the article was. Lord
Parker, C.J. said that the regulation was a public welfare provision. If
one considered the mischief aimed at alone, there was every reason for
treating a provision such as this as a provision imposing absolute
liability.

There have been important landmark cases on this in India as well. A

fine example was the case of State of Maharashtra v. M.H. George. In
this case, the respondent left Zurich on November 27, 1962, and landed
at Santa Cruz Airport. He did not get out of the plane, and infact, on
being searched, was found to have been carrying Gold slabs. Till
November 24th, there was a general permission for a person to bring or
send Gold into India if it was on through transit. But, after 24th
November, a condition was imposed. When the respondent had boarded
the plane at Zurich, he could not have known of the condition. He was
prosecuted for having violated Section 8(1) of the Foreign Exchange
Regulation Act, 1947, and the question was whether mens rea of the
respondent-accused could be established. The majority held that :-

“On the question whether mens rea – in the sense of actual knowledge
that the act done by the accused was contrary to the law – is requisite in
respect of a contravention of Section 8(1) starting with an initial
presumption in favour of the need for mens rea, we have to ascertain
whether the presumption is overborne by the language of the enactment,
read in the light of the objects and purposes of the Act, and particularly
whether the enforcement of the law and the attainment of its purpose
would not be rendered futile in the event of such an ingredient being
considered necessary. Where the statute does not contain the word
‘knowingly’, the first thing to do is to examine the statute to see whether
the ordinary presumption that mens rea is required applies or not. When
one turns to Section 8(1) in the present context, one reaches the
conclusion that there is no scope for the invocation of the rule of mens
rea. It lays an absolute embargo upon persons who, without satisfying
the condition bring or send into India any Gold, the absoluteness being
emphasized by Section 24(1) of the Act, which throws on the accused
the burden of proving that he had the requisite permission. In our
opinion, the very object and purpose of the Act and its effectiveness as
an instrument for the prevention of smuggling would be entirely
frustrated if a condition were to be read into Section 8(1) of the Act
qualifying the plain words of the enactment, that the accused should be
proved to have knowledge that he was contravening the law before he
could be held to have contravened the provision.”

Another very important case in relating to this exception to the rule of

mens rea is that of Ranjit D. Udeshi v. State of Maharashtra. In this case,
even a provision of Indian Penal Code, 1860 was held to be not
requiring mens rea. The Supreme Court had held that :-

“We do not accept the argument that the prosecution must prove that the
person who sells or keeps for sale any obscene object knows that it is
obscene before he can be adjudged guily. The first sub-section of
Section 292 of IPC does not make knowledge of obscenity an ingredient
of the offence. The prosecution need not prove something which the law
does not burden it with. If knowledge were made a part of the guilty act
(actus reus), and required the prosecution to prove it, it would place an
almost impenetrable defence in the hands of offenders. It is argued that
the number of books these days is so large and their contents so varied
that the question whether there is mens rea or not must be based on
definite knowledge of the existence of obscenity. We can only interpret
the law as we find it and if any exception is to be made, it is for
Parliament to enact a law. As we have pointed out, the difficulty, of
obtaining legal evidence of the offender’s knowledge of the obscenity of
the book, etc. has made the liability strict. Under our law, absence of
such knowledge may be taken in mitigation but, it does not take the case
out of the sub-section.”

These were some important examples where the exception to the

presumption requiring mens rea has been applied. In these cases,
punishment was given for statutory offences, without mens rea on the
part of the accused. This generally does happen in such offences, due to
them being linked with public welfare and national interest. But, in
certain other cases, the element of mens rea is somehow or the other
incorporated into the definition of the statutory offences, thereby helping
out the accused.
PRINCIPLE APPLIED IN CONSTITUTIONAL
INTERPRETATION
Introduction Constitution is the supreme and fundamental law of our
country. Since it is written in the form of a statute, the general principles
of statutory interpretation are applicable to interpretation of the
constitution as well. As is the case with any other statute, the court tries
to find out the intention of the framers of the constitution from the words
used by them. For example, in the case of State of Bihar v Kameshwar
Singh AIR 1952, SC used one of the standard principles of interpretation
that where more than one reasonable interpretation of a constitutional
provision are possible, that which would ensure a smooth and
harmonious working of the constitution shall be accepted rather than the
one that would lead to absurdity or give rise to practical inconvenience,
or make well existing provisions of existing law nugatory, while
interpreting the constitution. However, even if an argument based on the
spirit of the constitution is very attractive, it must be validated with the
spirit of the constitution as reflected by the words of the constitution. In
the same case mentioned above, SC observed that spirit of the
constitution cannot prevail if the language of the constitution does not
support that view. It is important to note that the constitution itself
endorses the general principles of interpretation through Article 367(1),
which states that unless the context otherwise requires, the General
Clauses Act, 1897 shall apply for the interpretation of this constitution
as it applies for the interpretation of an act of the legislature. Courts have
ruled in cases such as Jugmendar Das vs State 1951, that not only the
general definitions given in General Clauses Act, but also the general
rules of construction given therein are applicable to the constitution.
Having said the above, the fact remains that Constitution is a special act.
It is a fact that every provision of the constitution is constitutional and
no part of it can be held unconstitutional. This casts an important duty
on the interpreters of the constitution to interpret its provisions such that
the spirit of the constitution is not maligned. In Kesvananda Bharati v
State of Kerala, AIR 1973, SC identified the basic structure of the
constitution that reflects its true spirit and held that nothing that hurts the
basic structure of the constitution, is constitutional. In the same case, SC
held that one should give the freedom to the parliament to enact laws
that ensure that the blessings of liberty be shared with all, but within the
framework of the constitution. It is necessary towards that end that the
constitution should not be construed in a narrow and pedantic sense. The
letters of the constitution are fairly static and not very easy to change but
the laws enacted by the legislature reflect the current state of people and
are very dynamic. To ensure that the new laws are consistent with the
basic structure of the constitution, the constitution must be interpreted in
broad and liberal manner giving affect to all its parts and the
presumption must be that no conflict or repugnancy was intended by its
framers. Applying the same logic, the provisions relating to fundamental
rights have been interpreted broadly and liberally in favor of the subject.
Similarly, various legislative entries mentioned in the Union, State, and
Concurrent list have been construed liberally and widely.
SOME OF THEM ARE DISCUSSED BELOW:
Principle of Harmonious Construction
The principle of harmonious interpretation is similar to the idea of
broad or purposive approach. The key to this method of constitutional
interpretation is that provisions of the Constitution should be
harmoniously interpreted. As per Kelly: ―Constitutional provisions
should not be construed in isolation from all other parts of the
Constitution, but should be construed as to harmonize with those other
parts.‖ A provision of the constitution must be construed and considered
as part of the Constitution and it should be given a meaning and an
application which does not lead to conflict with other Articles and which
confirms with the Constitution‘s general scheme. When there are two
provisions in a statute, which are in apparent conflict with each other,
they should be interpreted such that effect can be given to both and that
construction which renders either of them inoperative and useless should
not be adopted except in the last resort. This principle is illustrated in the
case of Raj Krishna vs Binod AIR 1954. In this case, two provisions of
Representation of People Act, 1951, which were in apparent conflict
were brought forth. Section 33 (2) says that a Government Servant can
nominate or second a person in election but section 123(8) says that a
Government Servant cannot assist any candidate in election except by
casting his vote. The Supreme Court observed that both these provisions
should be harmoniously interpreted and held that a Government Servant
was entitled to nominate or second a candidate seeking election in State
Legislative assembly. This harmony can only be achieved if Section
123(8) is interpreted as giving the govt. servant the right to vote as well
as to nominate or second a candidate and forbidding him to assist the
candidate it any other manner. Upon looking at various cases, the
following important aspects of this principle are evident –
1. The courts must avoid a head on clash of seemingly contradicting
provisions and they must construe the contradictory provisions so as to
harmonize them.
2. The provision of one section cannot be used to defeat the provision
contained in another unless the court, despite all its effort, is unable to
find a way to reconcile their differences.
3. When it is impossible to completely reconcile the differences in
contradictory provisions, the courts must interpret them in such as way
so that effect is given to both the provisions as much as possible.
4. Courts must also keep in mind that interpretation that reduces one
provision to a useless number or a dead lumbar, is not harmonious
construction.
5. To harmonize is not to destroy any statutory provision or to render it
otiose.
Doctrine of Pith and Substance
Pith means "true nature" or "essence" and substance means the essential
nature underlying a phenomenon. Thus, the doctrine of pith and
substance relates to finding out the true nature of a statute. This doctrine
is widely used when deciding whether a state is within its rights to create
a statute that involves a subject mentioned in Union List of the
Constitution. The basic idea behind this principle is that an act or a
provision created by the State is valid if the true nature of the act or the
provision is about a subject that falls in the State list. The case of State
of Maharashtra vs F N Balsara AIR 1951 illustrates this principle very
nicely. In this case, the State of Maharashtra passed Bombay Prohibition
Act that prohibited the sale and storage of liquor. This affected the
business of the appellant who used to import liquor. He challenged the
act on the ground that import and export are the subjects that belong in
Union list and state is incapable of making any laws regarding it. SC
rejected this argument and held that the true nature of the act is
prohibition of alcohol in the state and this subject belongs to the State
list. The court looks at the true character and nature of the act having
regard to the purpose, scope, objective, and the effects of its provisions.
Therefore, the fact that the act superficially touches on import of alcohol
does not make it invalid. Thus, as held in State of W Bengal vs Kesoram
Industries, 2004, the courts have to ignore the name given to the act by
the legislature and must also disregard the incidental and superficial
encroachments of the act and has to see where the impact of the
legislation falls. It must then decide the constitutionality of the act.
Principle of Incidental or Ancillary Powers
This principle is an addition to the doctrine of Pith and Substance. What
it means is that the power to legislate on a subject also includes power to
legislate on ancillary matters that are reasonably connected to that
subject. It is not always sufficient to determine the constitutionality of an
act by just looking at the pith and substance of the act. In such cases, it
has to be seen whether the matter referred in the act is essential to give
affect to the main subject of the act. For example, power to impose tax
would include the power to search and seizure to prevent the evasion of
that tax. Similarly, the power to legislate on Land reforms includes the
power to legislate on mortgage of the land. However, power relating to
banking cannot be extended to include power relating to nonbanking
entities. However, if a subject is explicitly mentioned in a State or Union
list, it cannot be said to be an ancillary matter. For example, power to tax
is mentioned in specific entries in the lists and so the power to tax
cannot be claimed as ancillary to the power relating to any other entry of
the lists. As held in the case of State of Rajasthan vs G Chawla AIR
1959, the power to legislate on a topic includes the power to legislate on
an ancillary matter which can be said to be reasonably included in the
topic. The underlying idea behind this principle is that the grant of
power includes everything necessary to exercise that power. However,
this does not mean that the scope of the power can be extended to any
unreasonable extent. Supreme Court has consistently cautioned against
such extended construction. For example, in R M D Charbaugwalavs
State of Mysore, AIR 1962, SC held that betting and gambling is a state
subject as mentioned in Entry 34 of State list but it does not include
power to impose taxes on betting and gambling because it exists as a
separate item as Entry 62 in the same list.
Doctrine of Colourable Legislation
This doctrine is based on the principle that what cannot be done directly
cannot be done indirectly. In other words, if the constitution does not
permit certain provision of a legislation, any provision that has the same
effect but in a round about manner is also unconstitutional. This doctrine
is found on the wider doctrine of "fraud on the constitution". A thing is
Colourable when it seems to be one thing in the appearance but another
thing underneath. K C Gajapati Narayan Deovs State of Orissa, AIR
1953 is a famous case that illustrates the applicability of this doctrine. In
this case, SC observed that the constitution has clearly distributed the
legislative powers to various bodies, which have to act within their
respective spheres. These limitations are marked by specific legislatives
entries or in some cases these limitations are imposed in the form of
fundamental rights of the constitution. Question may arise whether while
enacting any provision such limits have been transgressed or not. Such
transgression may be patent, manifest or direct. But it may also be
covert, disguised, or indirect. It is to this later class of transgression that
the doctrine of colourable legislation applies. In such case, although the
legislation purports to act within the limits of its powers, yet in
substance and in reality, it transgresses those powers. The transgression
is veiled by mere pretense or disguise. But the legislature cannot be
allowed to violate the constitutional prohibition by an indirect method.
In this case, the validity of Orissa Agricultural Income Tax
(Amendment) Act 1950 was in question. The argument was that it was
not a bona fide taxation law but a colourable legislation whose main
motive was to artificially lower the income of the intermediaries so that
the state has to pay less compensation to them under Orissa Estates
Abolition Act, 1952. SC held that it was not colourable legislation
because the state was well within its power to set the taxes, no matter
how unjust it was. The state is also empowered to adopt any method of
compensation. The motive of the legislature in enacting a law is totally
irrelevant. A contrasting case is of K T Moopil Nair vs State of Kerala,
AIR 1961. In this case, the state imposed a tax under Travencore Cochin
Land Tax Act, 1955, which was so high that it was many times the
annual income that the person was earning from the land. The SC held
the act as violative of Articles 14 and 19(1)(f) in view of the fact that in
the disguise of tax a person's property was being confiscated. Similarly,
in Balajivs State of Mysore, AIR 1963, SC held that the order reserving
68% of the seats for students belonging to backward classes was
violative of Article 14 in disguise of making a provision under Article
15(4).
PRINCIPLE OF ECLIPSE
The Doctrine of Eclipse says that any law inconsistent with Fundamental
Rights is not invalid. It is not dead totally but overshadowed by the
fundamental right. The inconsistency (conflict) can be removed by a
constitutional amendment to the relevant fundamental right so that
eclipse vanishes and the entire law becomes valid. All laws in force in
India before the commencement of the Constitution shall be void in so
far they are inconsistent with the provisions of the Constitution. Any law
existing before the commencement of the Constitution and inconsistent
with the provision of Constitution becomes inoperative on
commencement of Constitution. But the law does not become dead. The
law remains a valid law in order to determine any question of law
incurred before the commencement of the Constitution. An existing law
only becomes eclipsed to the extent it comes under the shadow of the
FR. Case: Keshavan Madhava Menon v. The State of Bombay In this
case, the law in question was an existing law at the time when the
Constitution came into force. That existing law imposed on the exercise
of the right guaranteed to the citizens of India by article 19(1)(g)
restrictions which could not be justified as reasonable under clause (6) as
it then stood and consequently under article 13(1) that existing law
became void “to the extent of such inconsistency”. The court said that
the law became void not in to or for all purposes or for all times or for
all persons but only “to the extent of such inconsistency”, that is to say,
to the extent it became inconsistent with the provisions of Part III which
conferred the fundamental rights of the citizens. Thus the Doctrine of
Eclipse provides for the validation of Pre-Constitution Laws that violate
fundamental rights upon the premise that such laws are not null and void
ab initio but become unenforceable only to the extent of such
inconsistency with the fundamental rights. If any subsequent amendment
to the Constitution removes the inconsistency or the conflict of the
existing law with the fundamental rights, then the Eclipse vanishes and
that particular law again becomes active again.
PRINCIPLE OF SEVERABILITY
The doctrine of severability provides that if an enactment cannot be
saved by construing it consistent with its constitutionality, it may be
seen whether it can be partly saved. Article 13 of the Constitution of
India provides for Doctrine of severability which states thatAll laws in
force in India before the commencement of Constitution shall be void in
so far they are inconsistent with the provisions of the Constitution. The
State shall not make any law which takes away/ shortens the rights
conferred by Part III of the Constitution i.e. Fundamental Rights. Any
law made in contravention of the provisions of the Constitution shall be
void and invalid. The invalid part shall be severed and declared invalid if
it is really severable. (That is, if the part which is not severed can
meaningfully exist without the severed part.) Sometimes the valid and
invalid parts of the Act are so mixed up that they cannot be separated
from each other. In such cases, the entire Act will be invalid. Case: AK
Gopalan v. State of Madras In this case, the Supreme Court said that in
case of repugnancy to the Constitution, only the repugnant provision of
the impugned Act will be void and not the whole of it, and every attempt
should be made to save as much as possible of the Act. If the omission
of the invalid part will not change the nature or the structure of the
object of the legislature, it is severable. It was held that except Section
14 all other sections of the Preventive Detention Act, 1950 were valid,
and since Section 14 could be severed from the rest of the Act, the
detention of the petitioner was not illegal.
PRINCIPLE OF TERRITORIAL NEXUS
Article 245 (2) of the Constitution of India makes it amply clear that
‘No law made by Parliament shall be deemed to be invalid on the ground
that it would have extra-territorial operation’. Thus a legislation cannot
be questioned on the ground that it has extra-territorial operation. It is
well-established that the Courts of our country must enforce the law with
the machinery available to them, and they are not entitled to question the
authority of the Legislature in making a law which is extra-territorial.
The extra-territorial operation does not invalidate a law. But some nexus
with India may still be necessary in some of the cases such as those
involving taxation statutes. The Doctrine of Territorial Nexus can be
invoked under the following circumstances- Whether a particular state
has extra-territorial operation.• If there is a territorial nexus between the
subject- matter of the Act and the state making• the law It signifies that
the object to which the law applies need not be physically located
within• the territorial boundaries of the state, but must have a sufficient
territorial connection with the state. A state may levy a tax on a person,
property, object or transaction not only when it is situated within its
territorial limits, but also when it has a sufficient and real territorial
connection with it. Nexus test was applied to the state legislation also
Case: Tata Iron & Steel Company v. Bihar State The State of Bihar
passed a Sales Tax Act for levy of sales tax whether the sale was
concluded within the state or outside if the goods were produced, found
and manufactured in the state. The court held there was sufficient
territorial nexus and upheld the Act as valid. Whether there is sufficient
nexus between the law and the object sought to be taxed will depend
upon the facts and circumstances of a particular case. It was pointed out
that sufficiency of the territorial connection involved a consideration of
two elements- a) the connection must be real and not illusory b) the
liability sought to be imposed must be pertinent to that connection.
PRINCIPLE OF IMPLIED POWERS
Laws which are necessary and proper for the execution of the power or
incidental to such power are called implied powers and these laws are
presumed to be constitutional. In other words, constitutional powers are
granted in general terms out of which implied powers must necessarily
arise. Likewise, constitutional restraints are put in general terms out of
which implied restraints must also necessarily establish. This is a Legal
principle which states that, in general, the rights and duties of a
legislative body or organization are determined from its functions and
purposes as specified in its constitution or charter and developed in
practice. The Constitution is the supreme and fundamental law of our
country. Since it is written in the form of a statute, the general principles
of statutory interpretation are applicable to the interpretation of the
constitution as well. It is important to note that the constitution itself
endorses the general principles of interpretation through Article 367(1),
which states that unless the context otherwise requires, the General
Clauses Act, 1897 shall apply for the interpretation of this constitution
as it applies to the interpretation of an act of the legislature.
Taxation Statute
Tax is a forceful extraction of money from the assessee (taxpayer) by the
sovereign authority in which the taxpayer is not entitled to any assured
benefit. So, taxes place a monetary burden on the taxpayer and thus to
some extent it is considered as penalty on the taxpayer which is imposed
under the authority of law. Thus, unless the imposition of tax is clearly
backed by law, no tax can be imposed.
Taxation statute is a fiscal statute which is enacted on the basis of trial
and error method or on experimentation basis. It is not practicable for
legislature to anticipate all the possible situations or conditions which
may arose after the law is enacted. It is possible that the assessee might
use some shortcomings in the law as a loophole and take advantage of it.
As tax results in pecuniary burden so the benefit of doubt is given to
assessee in case of any contradictions.
Strict rule is applicable to taxation statutes, so courts are bound to give
clear and plain meaning to the words without delving into the
consequences it can result in. There is no presumption of tax or
intendment of the legislature to impose tax unless clearly and
specifically provided. Thus, it is the legislature or subordinate authority
to come forward and bring amendments and clarifications to rectify the
loopholes.
Thus, direct meaning is given to words used in the statute and in case of
two interpretations coming out than in that case that such interpretation
is given, which is in favour of the taxpayer. Until and unless, clear
words are used in the statute which imposes the liability on the taxpayer,
there can be no burden to pay tax.
Rule of Interpretation applicable to Taxation Statute
Taxation statute is a fiscal statute which imposes the pecuniary burden
on the taxpayer. So such statutes are construed strictly. Plain, clear and
direct grammatical meaning is given. Where there are two possible
outcomes then that interpretation is given which is in favour of assessee.
Any taxation statute involves three stages firstly, the subject on which
tax is levied or imposed, secondly, the assessment of the liability of
assessee and lastly, the recovery once the assessment is made. The first
stage is where charging provisions of the act are involved. These
charging provisions must be clearly provided in the statute. These
charging provisions provide the extent and coverage of the subjects as to
whom the tax is applicable. It also provides the outline in form of
subjects which the legislature wants to cover under the law. Charging
provisions are to be interpreted strictly as it results in financial burden.
There cannot be any ambiguity and meaning which is clear, obvious,
direct is given. Nothing can be inferred to substantiate the intention of
the legislature or purpose for which the law was made. Once the revenue
shows that particular subject is covered by law then tax is applicable for
all those subjects. But if it fails to proof then no tax can be imposed by
extending the meaning.
Principal of equity has no role to play in case of taxation law. It is
because there is lot of deeming legal fiction involved in tax laws. Thus,
whatever is written must be strictly followed without considering its
justness. If the words are clear, then court has to give that meaning
irrespective of consequences it resulted into or in other words even if
such construction is unequitable, then also Court is bound due to legal
fiction. Court cannot meet the deficiency by extending the provisions of
the statute. It is duty of the legislature to rectify it through amendments.
In a Taxation statute, if a word has a clear meaning, then in that case, the
court is bound to follow the clear meaning even if such meaning results
in absurd results. It is in legislature’s domain to rectify such absurdity.
In case of taxation statutes, Courts cannot extend the scope of law by
giving meanings to word which are unclear or uncertain. This is based
on the reason that if legislature had thought of such situation then it
would have covered it by using appropriate description and words under
the principal act or taxation authority would have issued some
notification clarifying the same.
The case of State of Uttar Pradesh v. Kores India Ltd. (AIR 1977 SC
132) is relevant. In this case, the issue was pertaining to inclusion of
carbon paper in the definition of word “paper”. It was held by the
Hon’ble Supreme Court that in common parlance word paper is one
which is used for writing, packaging and printing whereas carbon paper
is used entirely for different purpose. Moreover, manufacturing process
of carbon paper is entirely different and complicated from that of normal
paper. So, Court held carbon paper will not be included in normal paper
so as to make it subject to taxation. It was held that meaning of paper is
quiet clear and there is no need to interpret it so as to extend its meaning
to include carbon paper. Thus, Courts are not required to extend the
meaning to cover the subjects which on the face cannot be included in
common parlance. It is only when specifically provided by statute then
only it becomes subject to tax.
The words used in the taxation law should be given meaning which is
understood by general public in daily routine and one which is popular.
Such meaning should be given to words which people to whom law is
applicable are familiar with.
The second and third stage involved in any tax laws are assessment of
the liability and recovery of dues respectively. These provisions are
machinery provisions which provides for technicalities and procedure to
be followed under the act to make it functional. These provisions are to
be interpreted fairly and liberally to promote the intention of the
legislature. In case of contradiction whereby two meaning are coming
out then one which is reasonable, which will assist in fulfilling the
intention of the legislature and solving the purpose for which law was
enacted is preferred. They are to be interpreted in such a way so as to
enforce and apply charging provisions smoothly.
In case of exemptions, strict rule does not apply rather liberal rule is
applied. All the conditions under which exemptions are given must be
clearly specified. Once the assessee has shown that all the conditions
precedent required to claim exemptions are fulfilled then he is entitled to
claim exemptions. Once the assessee falls within the category of
exemptions, then such exemption should be allowed. It cannot be denied
on the basis of assumed or likely intention of the authority making the
law.
The doctrine of Substantial Compliance is based on the principle of
equity which is also applicable to taxation laws. According to this
doctrine, if the conditions for claiming exemptions are met substantially
or only a few minor procedural requirements are not fulfilled which does
not hamper the purpose for which such law was made then in that case
substantial compliance can also entitles one to claim exemptions.
Applicability of such doctrine is based on case to case basis as it results
are different depending on facts of each case, extent of compliance,
whether partial compliance fulfils the essence, object and purpose of the
law.
A beneficial statute is a class of statute which seeks to confer benefit on
individuals or class of persons by relieving them of onerous obligation
under contracts entered into by them or which tend to protect persons
against oppressive act from individuals with whom they stand in certain
relations. The established principle in the construction of such statutes is
there should not be any narrow interpretation. The court should attempt
to be generous towards the persons on whom benefit should be
conferred. When a statute is interpreted liberally to give the widest
possible meaning to it, it is called beneficent construction. Beneficial
construction is an interpretation to secure remedy to the victim who is
unjustly denied of relief. The interpretation of a statue should be done in
such a way that mischief is suppressed and remedy is advanced.

PRINCIPLES OF BENEFICIENT CONSTRUCTION

Beneficent construction involves giving the widest meaning possible to

the statutes. When there are two or more possible ways of interpreting a
section or a word, the meaning which gives relief and protects the
benefits which are purported to be given by the legislation, should be
chosen. A beneficial statute has to be construed in its correct perspective
so as to fructify the legislative intent. Although beneficial legislation do
receive liberal interpretation, the courts try to remain within the scheme
and not extend the benefit to those not covered by the scheme.It is also
true that once the provision envisages the conferment of benefit limited
in point of time and subject to the fulfillment of certain conditions, their
non-compliance will have the effect of nullifying the benefit. There
should be due stress and emphasis to Directive Principles of State Policy
and any international convention on the subject.
There is no set principle of construction that a beneficial legislation
should always be retrospectively operated although such legislation such
legislation is either expressly or by necessary intendment not made
retrospective. Further, the rule of interpretation can only be resorted to
without doing any violence to the language of the statute. In case of any
exception when the implementation of the beneficent act is restricted the
Court would construe it narrowly so as not to unduly expand the area or
scope of exception. The liberal construction can only flow from the
language of the act and there cannot be placing of unnatural
interpretation on the words contained in the enactment. Also, beneficial
construction does not permit raising of any presumption that protection
of widest amplitude must be deemed to have been conferred on those for
whose benefit the legislation may have been enacted.

ILLUSTRATIONS ON BENEFICIENT LEGISLATIONS AND

INTERPRETATION

There are different kind of legislations which receive beneficent

construction. Laws which are enacted with the object of promoting
general welfare and facing urgent social demands receive beneficial
legislations. Examples of statutes include The Factories Act, Industrial
Disputes Act etc. In case of legislations which have may two different
interpretations, the legislation which favours the class of persons for
which it is purported should be preferred. In the case of Hindustan Level
Ltd v Ashok Vishnu Kate, the court held that in a case related to
prevention of unfair labor practice, during interpreting social welfare
legislation, a construction should be placed on the relevant provisions
which furthers the purpose for which such legislation was enacted.
Socio-economic legislation which are aimed at social or economic
policy changes, the interpretation should not be narrow. Justice Krishna
Iyer in a case relating to agrarian reforms observed that “the judiciary is
not a mere umpire but also an active catalyst in the constitutional
scheme”. In the case of Sant Ram v Rajinderlal, the Supreme Court said
that a welfare legislation must be interpreted in a third World
perspective favouring the weaker and poor class. It has also been laid
down in the case of labour legislation that courts should not stick to
grammatical constructions but also have regard to ‘teleological purpose
and protective intendment’ of the legislation. Interpretation of labour
legislations should be done by the courts with more concern with the
colour, the context and the content of the statute rather than its literal
import.
In case of a social benefit oriented legislation like the Consumer
Protection Act, 1986 the provisions are construed as broadly as
possible. Interpreting a section of the Act, it was held that parents who
hire the services of a hospital and their child for whom the service are
hired are both consumers and can independently claim damage. The
clause regarding jurisdiction has been liberally interpreted to empower
the consumer fora to entertain claims irrespective of whether other
courts or for a have jurisdiction to entertain claims unless jurisdiction is
expressly barred. Further, the liberal interpretation has been taken in
holding that although the forum is a judicial authority, they are not
hampered by section 34 of Arbitration Act and are not obliged to stay
proceedings before them because the Act provides a cheap and speedy
remedy to the consumer.
Industrial Disputes Act 1947 is one of welfare statute which intends to
bring about peace and harmony between management and labour in an
industry and improve the service conditions of industrial workers which
in will turn accelerate productive activity of the country resulting in its
prosperity. As a result the prosperity of the country in turn will help to
improve the conditions of the workmen. Therefore this statute should be
interpreted in such a way that it advances the object and the purpose of
the legislation and gives it a full meaning and effect so that the ultimate
social objective is achieved. The courts while interpreting labour laws
have always stressed on the doctrine of social justice as enshrined in the
Preamble of Constitution.
Another example of beneficial construction of a statute is the Juvenile
Justice Act. The earlier act of 1986 was replaced with a new act in 2000.
Whereas the 1986 act defined the term ‘juvenile’ as a boy not having
attained sixteen years of age or a girl not having attained the age of
eighteen years, the 2000 act defined juvenile to mean a person who has
not completed eighteen years of age. This issue came up for a
consideration before the Constitution Bench in the case of Pratap Singh
v State of Jharkhand. The Court looked into the object of the act, which
is to provide for the care, protection treatment, development and
rehabilitation of neglected and delinquent juveniles. Further the acts
were passed in discharge of obligation to follow the United Nations
Minimum Rules for the Administration of Juvenile justice. Since the acts
were remedial in nature, beneficial construction was given to promote
the beneficent object behind them.
In the landmark case of B Shah v Presiding Officer, Labour Court, court
applied beneficent rule of construction in construing section 5 of the
Maternity Benefit Act, 1961, which makes the employer liable to pay
maternity benefit to woman worker at the rate of average daily wage for
the period of her actual absence immediately preceding and including
the day of her delivery and for six weeks immediately following that
day. The court held that Sundays must also be included and held that the
Act was intended not only to subsist but also make up for her dissipated
energy and take care of child. The Act was read in the light of Article 42
One of the leading examples of liberal construction is in the
interpretation of Section 123 © of Railways Act 1989 which defined
‘untoward accident’ to include ‘accidental falling of a passenger from a
train carrying passengers’. The question in contention before the court
was whether ‘untoward accident’ will cover the instance of a passenger
who fell down and died while trying to board the train. In deciding the
case, the court said that there are couple of interpretations of ‘accidental
falling’; first one being that it only applies when a person is inside the
train while second includes a situation where person is trying to board a
train and falls down. The relevant provision was deemed as a beneficial
piece of legislation and hence received liberal and wide interpretation
and hence the definition was expanded to include a passenger who fell
off the train in the process of boarding it.
Justice Krishna Iyer exhorted Mahatma Gandhi’s talisman in
interpreting legislation which dealt with the relation between weaker and
stronger contracting parties. His advice was “Recall the face of the
poorest and the weakest man whom you may have seen, and ask
yourself, if the step you contemplate is going to be of any use to
him.” Due regard to Article 16(4) and Article 46 is advocated in
interpreting directives aims at making reservations and relations in
favour of members of the scheduled castes and scheduled tribes.
The effect of a beneficial legislation should not be construed to be
defeated by subsequent legislation except through a clear provision. The
rights of minor children to get maintenance from their father as provided
in Section 127 of CrPC was construed not to have been taken away in
respect of Muslims by the Muslim Women (Protection of Rights on
Divorce) Act, 1986 section 3(b) which enabled a Muslim woman to
claim maintenance for the minor children upto the age of two years only
from her former husband. It was held by the court that the right of
children to claim maintenance under CrPC was independent of right of
divorced mother to claim maintenance for the infant children and former
is not affected by 1986 Act.
The principle of liberal construction can be taken to extreme limits at
some times in order to achieve the object of the legislation. In the case
of National Insurance Co Ltd v Swarn Singh.
In the case relating to insurance aspect of motor vehicles, the Supreme
court held that to prove its defence the insurer has to prove: (i)breach of
condition by the insured was done knowingly or resulted due to his
negligence and (ii)breach was fundamental and had contributed to cause
of accident. It was also held that even in cases where the insurer is able
to prove the defence of breach of condition, it will have to satisfy the
award against the insured but it can recover the amount paid to the
claimant from the insured in the same proceedings before the tribunal.

In a recent judgment in the case of The Bangalore Turf Club Ltd. Vs.
Regional Director, Employees State Insurance Corporation, the
Supreme Court judged the ESIC act on beneficial grounds and
emphasized that the beneficient construction is being preferred to help
the intended beneficiaries.

Illustrations on the limitations of beneficial legislations

It is important to note that the principle of beneficial construction has to

be applied with a few safeguards. It can only be applied without
“rewriting or doing violence to the enactment”. When the language is
clear and explicit, it leaves little scope for any bending of
interpretation. Sympathy cannot be a sole principle guiding
interpretation. In the Maruti Udyog case, the Constitution Bench held
that no provisions of act provided for absorption of contract labour on
issuance of a notification under Section 10 prohibiting employment of
contract labour. In the Employess State Insurance Act 1948, Section 53
provided that an insured person or his dependents will not be entitled to
‘any compensation or damages’ under the Workmen’s Compensation
Act 1923 or any other law for the time being in force or otherwise in
respect of an employment injury. This was held to bar even claim for
compensation of damages in Torts although the Act is a beneficial
legislation.
In the Umadevi, case, the Supreme Court held that those employed on
daily wages temporarily or on contractual basis by State or its
instrumentalities cannot be said to be holders of a post and have no right
to regularization simply because they have worked for a number of
years. This decision shows that sympathy or sentiment cannot be the
sole ground for passing a favourable order when there is no legal right to
support such an order.
The Control of Rent and Eviction Acts seek to protect tenants from
unjust evictions and it is a principle that in case of doubt, such Acts
should be interpreted to lean in favour of tenants. However, it is a
restriction that the benefit conferred on the tenants under these Acts can
only be enjoyed on strict compliance of statutory provisions contained in
them.
The beneficial legislation should not be construed such that it brings
within its ambit a benefit which was not contemplated by
legislature. Hence where the insurance company had rescinded the
contract of insurance and informed all parties before the accident after
the cheque issued to satisfy the premium due is dishonoured.

USE OF INTERPRETATION PRINCIPLES IN LANDMARK

CASES SUCH AS AYODHYA JUDGMENT OR ABOLITION OF
S.377 AND OTHER RECENT DEVELOPMENTS SECTION 377
In the case of Naz Foundation, the Delhi Court used the golden rule of
interpretation to avoid injustice which would not be avoided if a
mechanical interpretation of the language is done when court held that
sexual orientation is a ground analogous to sex in Article 15 and Thus,
discrimination on the "basis of sexual orientation cannot "be permitted"
by Article 15. Thus, section15 was found violative of Article 15. Also,
Court relied on the case of Anuj Garg vs. Hotel Association of India and
the principles down in this case. In that case, the act in question was also
a pre-constitutional legislation and although it was saved in terms of
Article 14, 15 and 19 of the Constitution of India, was held as
permissible in law. There is thus no presumption of constitutionality of a
colonial legislation. Therefore, though the statute could have been held
to be a valid piece of legislation keeping in view the societal condition
on those times, but with the changes occurring therein both in the
domestic as also international arena such a law can also be declared
invalid. Court also went in to discuss and apply the principle of
severability. The prayer of the petitioner was to declare Section 377 IPC
as unconstitutional to the extent the said provision affects private sexual
acts between consenting adults in private so that applicability of section
377 IPC continues to cases involving non-consensual sex.
Two Kinds of Severability were discussed:
a) Statutory provision may contain distinct and separate words dealing
with distinct and separate topics. The first sub section may be valid and
the second void. In such a case, the court may delete the second sub
section by treating it as severable.
b) There is however another kind of severability namely severability in
application, or severability in enforcement. The question of this other
kind of severability arises when an impugned provision is one
indivisible whole. Here, severability cannot be applied by deleting an
offending provision and leaving the rest standing.
Thus, Court applied this second kind of severability to the provision and
declared that section 377 IPC, insofar it criminalizes consensual sexual
acts of adults in private, is violative of Article 21, 14 and 15 of the
constitution. The provisions of Section 377 IPC were held to continue to
govern non-consensual penile non-vaginal sex and penile non-vaginal
sex involving minors. This clarification was to be hold till, of course,
Parliament chooses to amend the law to effectuate the recommendation
of the Law Commission of India in its 172nd Report. In the case of
Suresh Koushal, the Apex Court much emphasized on the doctrine of
presumption of constitutionality, even in case of a pre-constitutional
statute. Court held that there is nothing to suggest that this principle
would not apply to pre-constitutional laws which have been adopted by
the parliament and used with or without amendment. If no amendment is
made to a particular law it may represent a decision that the legislature
has taken to leave the law as it is and this decision is no different from a
decision to amend and change the law or enact a new law. The 172nd
Law commission report specifically recommended deletion of that
section and the issue has repeatedly come up for debate. However, the
legislature has chosen not to amend the law or revisit it. This shows that
the Parliament, which is undisputedly the representative body of the
people of India Has not thought it proper to delete this provision. Court
further observed that: Unless a clear constitutional violation is proved,
this court is not empowered to strike down a law merely by virtue of its
falling into disuse or the perception of the society having changed as
regards the legitimacy of its purpose and its need. The Supreme Court
also observed that who indulge in carnal intercourse in the ordinary
course and those who indulge in carnal intercourse against the order of
nature constitutes a different class and the people falling in the same
category cannot claim that Section 377 suffers from the vice of
arbitrariness and irrational classification. What Section 377 does is
merely define the particular offence and prescribe punishment for the
same which can be awarded if in the trial conducted in accordance with
the provisions of the Code of Criminal Procedure and other statues of
the same family the person is found guilty. Therefore, the High Court
was not considered to be right in declaring Section 377 IPC Ultra vires.
The Supreme Court also dismissed the blindfolded use of foreign
judgements by the Delhi High Court. It stated that though these
judgements shed considerable light on various aspects of this right and
are informative in relation to the plight of sexual minorities, they cannot
be applied blindfolded for deciding the constitutionality of the law
enacted by the Indian Legislature. Hence, the court held that Section 377
IPC does not suffer from the vice of unconstitutionality and the
judgement passed by the Delhi High Court is legally unsustainable.