COMPENDIUM ON

INTERPRETATION OF STATUTES

BINDIYA C K

ATHULYA K

SUNEER ISMAIL VC

AYISHA AMJIDHA KP

Faculty in Law
Government Law College, Kozhikode

In association with

Government Law College, Kozhikode

Published by :
Government Law College
Marikunnu P.O., Kozhikode, Kerala-673012
Email : calicutlawcollege@gmail.com

Copyright © All rights reserved

ISBN : 978-81-970778-5-2
First Edition, 2024
Printed at:
Stepzo Digital Press, Kozhikode.
 CONTENTS

Sl No. Topic Page no.

1. Introduction 1-3
2. Basic Rules of Interpretation 4-42
(i) Primary Rules 4
- Literal Rule 4
- Golden Rule 7
(ii) Secondary Rules 10
- Mischief Rule 10
- Strict rule 17
Penal Statutes 17
Taxing Statutes 21

- Restrictive Rule 24
- Liberal Rule 26
- Beneficent Rule 28
- Statute must be read as a whole 30
- Legislative Intent 33
- Harmonious Construction 36
3. Subsidiary Rules of Interpretation 43-71
(i) Noscitur a sociis 44
(ii) Ejusdem Generis 46
(iii) Reddendo Singula Singulis 50
(iv) Expressio Unius Est Exclusio Alterius 51
(v) Generalia Specialibus Non Derogant 53
(vi) Casus Omissus 56
(vii) Rule of Bona Partem 58
(viii) Ut Res Magis Valeat Quam Pereat 59
(ix) Contemporanea exposito est optima est fortessima in lege 60
(x) Reading down provision 62
(xi) Loquitur ut vulgus 63
 (xii) De minimus non curat lex 63
(xiii) Words of rank 64
(xiv) Same word same meaning; Same word different meaning 64
(xv) Use of technical words 66
(xvi) Rule of Redundancy 66
(xvii) Equitable Construction 67
(xviii) Singular, Plural, Gender 68
(xix) Rule of last Antecedent 69
(xx) Void for Vagueness rule 71
4. Aids to Interpretation 72-112
- Internal Aids 72
(i) Preamble 73
(ii) Long Title 74
(iii) Short title 74
(iv) Proviso 75
(v) Explanation 76
(vi) Exceptions 77
(vii) Illustration 78
(viii) Non obstante clause 78
(ix) Deeming Provisions (Legal Ficton) 79
(x) Definition Clause (interpretation clause) 80
(xi) Marginal notes 82
(xii) Mandatory & Directory Provisions 83
(xiii) Conjunctive & Disjunctive Provisions 84
(xiv) Schedules 85
(xv) Transitional Provisions 85
(xvi) Punctuation 85
(xvii) Repealing clause 88
(xviii) Saving clause 90
(xix) Ouster clause 91
(xx) Commencement clause 92
 (xxi) Articles 93
(xxii) Headings 93
(xxiii) Enacting clause 93
- External aids 94
(i) Statement of Objects and Reasons 94
(ii) Parliamentary history, debates and speeches 95
(iii) Legislative History 96
(iv) Foreign Decisions & Statutes 96
(v) Dictionaries 98
(vi) Text books 99
(vii) Social, Political, Economic developments, Scientific 102
Inventions
(viii) Reference to other Statutes: 105
- Statutes in Pari-materia 105
- Previous & Later legislation 107
- Interpretation or reference of Earlier Act into Later Act 108
- Codifying & Consolidating statutes 109
5. Presumptions 113-122
(i) Presumption of Constitutionality 113
(ii) Presumption against violation of International Law 115
(iii) Presumption against changes in Common Law 116
(iv) Presumption against intending injustice 116
/absurdity/inconvenient/unreasonable results
(v) Presumption against exceeding territorial nexus 118
(vi) Presumptions relating to jurisdiction of courts 119
(vii) Some other Presumptions. 119
6. Types of Statutes- their operation & Interpretation 123-150
(i) Statutes affecting Crown/State 123
(ii) Statutes affecting Jurisdiction of courts 126
(iii) Codifying, consolidating & Amending statutes 129
(iv) Repeal statutes 130
 (v) Perpetual statutes 132
(vi) Statutes in Pari- materia 134
(vii) Retrospective statute/ Ex post facto Law 134
(viii) Delegated legislation 136
(ix) Procedural & Substantive legislation 138
(x) Constitution 139
(xi) General clauses Act,1897 145
7. Principles of Legislation & Legislative Drafting 151-165
(i) Introduction 151
(ii) Principles of Legislation: 151
Bentham’s Utilitarian Theory 152
[Pain and Pleasure theory]
Ascetic Principle 159
Arbitrary Principle [Sympathy and Antipathy] 159
Morality principle 160
(iii) Legislative Drafting: 163
Equipment of a Draftsman 163
Rules of Montesquieu
Other General Principles 164
Moral Principles 164
165
8. Solved Practical Problems from previous Question Papers 166-247
9. Syllabus 248
 CHAPTER 1

INTRODUCTION

Interpretation is the art or method of finding out the true or correct meaning of a word or
sentence. Interpretation of Statutes or statutory interpretation is the process by which courts
find out the true meaning of a particular law or statute and apply it to the case at hand. The
term has been derived from the Latin term ‘interpretari’, which means to explain, expound,
understand, or to translate. Interpretation is the process of explaining, expounding and
translating any text or anything in written form. This basically involves an act of discovering
the true meaning of the language which has been used in the statute

According to Salmond, “Interpretation” is the process by which the court seeks to ascertain
the meaning of the legislature through the medium of authoritative forms in which it is
expressed.

According to Gray, the process by which a judge (or indeed any person, lawyer or layman,
who has occasion to search for the meaning of a statute) constructs from words of a statute
book, a meaning which he either believes to be that of the legislature, or which he proposes to
attribute to it, is called ‘interpretation.’

The question of interpretation does not arise when the words of a statute are plain, clear and
straightforward. Interpretation becomes necessary when the words of a statute are
ambiguous(confusing) or leading to more than one possibility. In order to find out the true
meaning of a statute, judges use various tools and methods. These tools and methods are:

 Basic and subsidiary rules of interpretation, presumptions, internal and external

aids, principles of legislation, etc.

The term ' interpretation' is used in two senses: -

1. It refers to the METHOD or WAY of arriving at the true meaning of a law. In this
sense, it is known as CONSTRUCTION. So, construction is the way or means of
understanding particular words used in an Act or other documents. The terms-
interpretation and construction are often used interchangeably.

2. It also refers to the correct meaning of a law itself. Eg: -

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  A judge is interpreting or construing a particular law. (Verb form)

 A judge has found out the correct interpretation of a particular law. (Noun
form).

Interpretation of statutes is the correct understanding of the law. This process is commonly
adopted by the courts for determining the exact intention of the legislature. Because the
objective of the court is not only merely to read the law but is also to apply it in a meaningful
manner to suit from case to case.

Thus, the ultimate object of 'interpretation' is to find out the true INTENTION of the
legislature [Union of India v Filip Tiago De Gama (1990)]. While interpreting the law,
courts should not try to add or subtract anything which was not expressly or impliedly
intended by the law maker.

In the words of Lord Denning : while interpreting a law "A judge must not alter the material
out of which the law is woven; but he can and must iron out the creases”. The need for
interpretation of statutes arises due to:

1) Difference between ordinary language (lay- man's language) and legal language

2) Poor draftsmanship (inability of the legislature to express its intention clearly)

3) Use of general words and covering of only general issues in the statute. So difficulty
arises while trying to apply it to complicated specific issues.

4) Crawford has discussed the various ways by which the meaning of statutes is to be
ascertained. He writes:“The first source from which the legislative intent is to be sought
is the words of the statute. Then an examination should be made of the context, and the
subject matter and purpose of the enactment. After the exhaustion of all intrinsic aids,
if the legislative intent is still obscure, it is proper for the court to consult the several
extrinsic matters for further assistance. And during the consideration of the- various
sources of assistance, further help may, of course, be found on the use of the numerous
rules of construction.”

Austin divided the interpretative process into three sub-processes:

 finding the rule;

 finding the intention of the legislature; and

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  extending or restricting the statute so discovered to cover cases which should be
covered.

Rules of interpretation were known to ancient Indian jurisprudence especially in MIMAMSA

written by Jaimini.

Some axiomatic rules of interpretation from MIMAMSA :

 SARTHAKYA- Every word should have a purposeful meaning.

 ARTHAIKATWA- Same words should have same meaning.
 GUNAPRADHANA- Reconciliation of all ideas with the principal one.
 SAMANGASYA- Contradiction should not be presumed. Reconciliation should
be attempted.
 VIKALPA - Choice between 2 meanings is permitted.
 ANARTOHAKEYA - Interpretation which makes a phrase meaningless should be
avoided.

Principles of interpretation, have been enunciated in various 'slokas' (verses) of Mimamsa too.
In Beni Prasad VS- Hardai Bibi case, English judges successfully applied Mimamsa rules to
resolve a dispute with regard to adoption under the uncodified Hindu law. Justice
Markandeya Katju has opined that the Mimamsa principles of interpretation are superior to
Maxwell's English principles of interpretation due to 2 reasons:

 More detailed and systematic

 Useful for interpreting statutes as well as judgements; whereas Maxwell’s
principles are useful for interpretation of statutes only.

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 CHAPTER 2

BASIC RULES OF INTERPRETATION

PRIMARY/GRAMMATICAL SECONDARY/ LOGICAL

RULES RULES

1)Literal rule. 1) Mischief rule

2) Golden rule. 2) Strict rule
3) Restrictive rule
4) Liberal rule
5) Beneficent rule
6) Statute must be read as a whole
7) Legislative intent
8) Harmonious rule

 PRIMARY RULES OF INTERPRETATION:

1) LITERAL RULE: According to this rule, the words of a statute must be interpreted
according to their strict, plain grammatical meaning. Words should be given their
ordinary and natural meaning unless the statute itself says that it has another meaning.
Under literal rule, there is no room for presumptions and imaginations. Nothing should
be added to or subtracted from the words.

According to literal rule, words of a statute are to be construed according to the literal
and grammatical meaning whatever be the consequences. In the words of Paton: If the
meaning of a section is plain, it is to be applied whatever be the result.

Maxwell says that literal rule of interpretation is the only safe rule. Salmond expresses
the literal rule as the letter of the law. According to the literal rule, letter of the law
(litera legis) must be respected.

 Forage & Co: vs. Municipal Corporation of Greater Bombay (1999) Schedule H
of the Bombay Municipal Corporation Act, 1888 contained a list of items which are
chargeable to octroi duty.

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 Heading of the schedule was 'Articles used in construction of buildings, roads and
other structures'. Zinc oxide was an Item under this schedule. The appellant
contended that Zinc oxide is not used for construction of buildings or roads; and
hence not taxable.

Court applied literal rule of interpretation and held that Zinc oxide is taxable.
Because the Act clearly and plainly says that Zinc oxide is taxable. Court also held
that [Headings are not conclusive to the question whether the articles mentioned
under it are taxable or not.]

 Kenyon vs. Eastwood(1888) 57 L.J.Q. 455

An Act provided that orders of committal should be made "in open court."
Applying literal rule; Court held that orders made in the room next to the actual
court-room was invalid.

 Alavi vs. Safia (AIR 1993 Ker 21)

Applying the literal rule to the Muslim Women (Protection of Rights) on Divorce
Act,1986. Court held that a Muslim husband cannot refuse to give maintenance to
divorced wife on the ground that she is leading an adulterous and immoral life after
divorce. Because the Act does not lay down such a disqualification.

 State of Kerala vs. Mathai Varghese (AIR 1987 SC 33]

Applying the literal rule; Court held that Sections 489A&B of IPC [offence of
counterfeiting money] does not use the word 'Indian' before 'currency notes' and
'bank-notes.' Hence, offences under these sections are applicable to both Indian and
foreign currency/ bank notes.

 Rudraiah vs St. of Karnataka (1998) 3 SCC 23)

Before the amendment of the Karnataka Land Reforms Act in 1978, there was a
provision under Sec. 48A of that Act according to which tenants could register
themselves as 'occupants' within 6 months. There was a proviso to Sec. 48A by
which the authorities could condone delay in genuine circumstances. The 1978
amendment deleted this part as a result of which the authorities lost power to
condone delay. The appellant filed the application late and was rejected. He
appealed to the High Court and finally the case reached Supreme Court.

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 Both the courts held that the words "before the expiry of 6 months from the date of
commencement of section 1 of Karnataka Land Reforms (Amendment) Act,1978..."
is very clear. Accordingly, the limitation period of 6 months starts from 1-1-1979
and ends on 30-6-1979. Applying the literal rule of interpretation, Court held that
there is no ambiguity. Moreover, the deletion of the proviso to sec 48A by the
amendment makes the legislature intent clear that the delay cannot be condoned by
the authorities anymore.

Literal rule is based on the maxims:

 A verbis legis nonest residendim (from the words of the law these should not be any
departure).

 Verbis standum ubi nulla Ambiguitas (one must abide by the words when there is
no ambiguity).

Advantages of Literal/grammatical rule

a) When the literal rule applied, there is no scope for the judges own opinions or
prejudices to interfere.
b) The literal rule respects parliamentary supremacy and upholds separation of power.
c) Literal rule encourages drafting precision, promotes certainty and reduces litigation.

Disadvantages of Literal/grammatical rule

a) The grammatical rule fails to recognize that the English language itself is
ambiguous and that words may have different meanings in different contexts.
b) The use of grammatical rule can sometimes lead to absurdities and loopholes which
can be exploited by an unmeritorious litigant.
c) Judges have tended to over-emphasize the literal meaning of statutory provisions
without giving due weight to their meaning in a wider context.
d) Placing emphasis on the literal meaning of words assumes an unobtainable
perfection in draftsmanship.
e) It ignores the limitations of language.
f) Sometimes, application of literal rule may lead to injustice. For example, in
London and North Eastern Railway Co. v. Berriman, [(1946) 1 All.E.R 255] a
railway worker was killed whilst oiling a track; no sign board with words 'stopping

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 man' had been provided. Under statute, compensation is provided on death of
workers 'replacing or relaying' track. The statute did not cover oiling and so
compensation was not given. This can undermine public confidence in the law.

2) GOLDEN RULE

According to this rule, words of a statute must be prima facie interpreted according to their
plain grammatical meaning. In other words, literal rule should be followed as far as possible.
But, if the following of the literal rule leads to absurd and unjust results, then the Court can
use various tools and methods to find out the real meaning which was intended by the
legislature. In other words, courts can go behind the ' letter of the law' (litera legis) to find out
the ‘spirit of the law’ ( sententia legis). It is to be noted that:

 Golden rule cannot be used when the words of the Act are plain, clear and express.

 Golden rule can be used only when there is AMBIGUITY. That is, if the words of
the statute are confusing and leads to two or more conclusions or meaning.

 In order to determine the true intention of the legislature, the Court can depend on
various like:

(a) Secondary rules of interpretation

E.g. Mischief rule, strict rule, Harmonious rule, etc.

(b) Subsidiary rules of Interpretation.

Egs. Ejusdem generis, noscitur a sociis,Redenddo Singula singuli, Casus Omisus, etc.

(c) Presumptions.
Egs: Presumptions in favor of Constitutionality, Presumption against violation of
Common law, etc.

(d) Internal aids to interpretation.

Egs.- Preamble, long title, short title, Provisos, Exceptions, Explanations, saving
clauses etc.

(e) External aids to interpretation

Egs: Dictionary, Parliamentary debates, other laws, Parliamentary history,
Reports, journals, Precedents, foreign decisions, opinions of legal experts, etc.

(f) Legal maxims.

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 While interpreting a statute using Golden rule of interpretation, the court may
use all or any of the above-mentioned tools and methods.

Golden rule was laid down in the leading case of Grey vs Pearson(1857). Popularly known as
Lord Wedneslydale's rule.

 Lee vs. Knapp (1967)- Under the Road Traffic Act, 1960, a driver of a vehicle
'shall stop' if any accident occurs. Issue was how many minutes of seconds should
he stop the vehicle?

Court applied the Golden rule of Interpretation and held that the driver should stop the vehicle
until the concerned authorities (traffic police, etc.) reach the spot. (NOTE: If literal rule was
applied to this case, it would have led to absurd and unjust results. For instance, the driver of
the vehicle would stop his vehicle for half a second and go, or, the driver could escape alone
after stopping his vehicle, such absurd consequences could never have been intended by the
legislature.)

 State of Punjab vs Kaiser Jehan Begum (1963)

Government acquired land of a person under Land Acquisition Act 1894.Collector awarded
compensation to this person under the Land Acquisition Act. A person aggrieved by the
award of the collector could file appeal within 6 months from the date of the award. The
person received the award of the collector only after 6 months. His appeal was dismissed as
being barred by limitation. Supreme Court applied Golden rule of interpretation and held that
the term 'within 6 months from the award' should be interpreted as 'within 6 months from the
date of knowledge of the award. [Note- if literal rule was applied to this case, it would have
led to unjust result. That is, persons whose land have been acquired could not have filed
appeal even if they got knowledge of the collector’s award after a very long time. They would
have suffered due to delay of the authorities in informing them of the award.

In other words, they would have lost their right to appeal against the collector’s award even if
there was no fault on their part). Similar view held in D SaiBaba vs Bar Council of India
(AIR 2003 SC 2502) When review petition of a debarred advocate was filed after limitation
period.

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 Union of India vs Authority under Minimum Wages Act (1969)

Workers engaged in the construction of railway lines claimed wages in accordance with the
Minimum Wages Act 1948. The Railway Department (Union of India) contended that they
were not bound to pay minimum wages to the workers because entry 7 of the Minimum
Wages Act clearly lays down the words 'construction of roads'. As such, only workers
engaged in construction of 'roads' would come within the purview of entry 7 of the Act. The
term road is not defined anywhere in the Act.

Court applied Golden role of interpretation and held that the term 'Road' can be wide
interpreted so as to include Railways also. Because railways are also a line of communication.
Road is a genus and Railway is a species of road. [Note: - literal rule had been applied in this
case it would have caused much injustice.]

 Motipur zamindari Co (P) ltd vs State of Bihar (1962)

Under Bihar Sales Tax Act 1947 'green vegetables' were exempted from tax. Issue was
whether 'sugarcane' is a green vegetable. Supreme Court applied golden rule of interpretation
and held that, sugarcane is not a green vegetable, according to common parlance. Hence,
sugarcane is taxable. [Note: - if literary rule had been applied in this case sugarcane would
have been treated as a green vegetable according to its botanical meaning. This would have
led to undue hardship as the government would have lost a large share of revenue].

 Day vs Simpson

Theater's Act,1843 prohibited performance of stage plays without license. Court held that this
prohibition would apply to indirect stage- performances through mirror- reflections from
below the stage- chambers.

The golden rule is usually based on part of Becke v. Smith, [(1836) 2 M&W 195] in which
Justice Parke B stated:

"If the precise words used are plain and unambiguous, in our judgment, we are bound to
construe them in their ordinary sense, even though it does lead, in our view of the case, to an
absurdity or manifest injustice. Words may be modified or varied where their import is
doubtful or obscure, but we assume the function of legislators. When we depart from the
ordinary meaning of the precise words used merely because we see, or fancy we see, an
absurdity or manifest injustice from an adherence to their literal meaning”.

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He further said, "It is very useful rule in the construction of a statute to adhere to the ordinary
meaning of the words used and to the grammatical construction, unless that is at variance with
the intention of the legislature to be collected from the Statute itself, or leads to any manifest
absurdity or repugnance, in which case the language may be varied or modified so as to avoid
such inconvenience but no further."

The term 'golden rule' seems to have originated in an 1854 Court ruling Jervis, C.J. used the
'golden rule' in Matterson v. Hart, [(1854) 23 LJCP 108 at p. 144]: "We must, therefore, in
this case have recourse to what is called the golden rule of construction, as applied to Acts of
Parliament, viz., to give to the words used by the Legislature their plain and natural meaning,
unless it is manifest, from the general scope and intention of the Statute, injustice and
absurdity would result from so construing them."

Twenty years later, Lord Wensleydale restated the golden rule in different words in Grey v.
Pearson, [(1857) 6 HL case 61, 106] and thereafter it is known as Lord 'Wednsleydale's
Golden Rule'.

 SECONDARY RULES OF INTERPRETATION

There are 8 secondary rules:

1) MISCHIEF RULE

According to this rule, judges must delve into the background history of the statute to
determine the mischief intended to be remedied by the legislation. The background history of
a statute can be obtained from materials such as journals, debates, comments of legal experts,
parliamentary discussions and debates, press agitations, law commission reports, social
circumstances/events, etc. By referring to the background history behind the statute, its true
object and intention can be understood. [In short, the mischief rule is as follows: ‘When the
words of a statute lead to two or more interpretations, then the court must adopt that
interpretation which ADVANCES the remedy and SUPPRESSES the mischief. This way, the
true intention of legislation can be ascertained.]

The Mischief rule is popularly known as HEYDON’S RULE as it was first laid down in Re
Heydon’s Case (1584) 3 Co. Rep. 7a:76 (ER637). A college had certain properties in its
name. The management gave life interest in some of these properties to ‘X’ and his son and
after their deaths to Heydon and another person. Such arrangements known as ‘doubling of

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estates’ used to be common in England in those times. The English Parliament passed a law
called the Statute-31 Henry-VII to prevent the system of ‘doubling of estates and
misappropriation of properties of ecclesiastical and religious institutions. Under this law, the
college properties were taken over by the Crown, and all encumbrances and previous rights
over these properties were canceled. Heydon challenged this law before the Court.

The Court held that the law and actions taken under it were valid. Applying the mischief rule
of interpretation, the Court held that for a sure and true interpretation of a statute, four things
should be considered:

a) What was the common law before the coming of the statute?
b) What was the mischief or defect for which the common law did not provide? [In
other words, what was the harm which the common law could not remedy?]
c) What was the remedy that the Parliament hath resolved and appointed to cure the
disease (mischief)?
d) The true reason for the remedy.

Mischief rule of Interpretation is also known as ‘PURPOSIVE CONSTRUCTION AND

REGARD TO SUBJECT AND OBJECT - Purposive Construction’ deviates from the
mechanical approach to interpretation and adopts a modern positive approach to interpretation
by concentrating on the purpose of the Act. Regard to subject and object because it considers
both the subject matter (material) of the Act and harmonizes it with the object (purpose) of the
Act. For example, the Dowry Prohibition Act, 1961, the subject of this law is dowry
prohibition, and the object is to protect married women from the mischief of dowry
harassments, dowry deaths, and dowry suicides.

 Pawan Kumar vs State of Haryana (1998) 3 SCC (309)

Sec 304 - B (Dowry death) and Sec 498 - A (Matrimonial cruelty was added in IPC to
suppress the mischief).

The Mischief rule of interpretation can be explained in the Indian context with the help of the
‘Mathura Case’ and the Criminal Law (Amendment) Act, 1983.

 Mathura case [Tukaram vs State of Maharashtra (1979) SCC 185]

This case is a sensational case that led to major amendments in the Indian Penal Code and
Evidence Act. In this case, a 15-year-old Harijan orphan girl was called to the police station

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for questioning and raped by two constables, Ganpat and Tukaram, in 1972. The Sessions
Court acquitted the accused. The Bombay High Court found both the accused guilty but in the
final appeal, Supreme Court in 1978 acquitted both the accused as the girl could not prove
that she did not give consent [Consent of victim is a good defense for accused in rape cases].

The judgment of the Supreme Court led to widespread criticism, agitations, and parliamentary
discussions on the existing law of rape under Section 375 and 376 of IPC. Section 375 of IPC
lays down 6 general circumstances under which sexual intercourse can be treated as rape.
Section 76 prescribes punishment for rape.

After the judgment in the Mathura Case, new Section 3376(2) and Section 376(A), (B), (C),
and (D) were inserted in the IPC. These sections introduced a new concept of CUSTODIAL
RAPE liable to greater punishment. Custodial rape means rape committed by persons in the
protection of custodians like police officers, jail wardens, management or staff of
hospital/orphanages/women and children’s home, public servants, etc. If such persons by
taking advantage of their official position commit sexual intercourse with women in their
custody whether with or without consent, it would amount to custodial rape. Rape on pregnant
women, women under 12 years of age, and gang rape are also treated as custodial rape.
Section 114 - A was also newly inserted in the Indian Evidence Act. Section 114 - A lays
down a Presumption of absence of consent in rape cases. Thus, in all rape cases, the burden of
proving consent of the victim lies on the accused. If he is unable to prove consent of the
victim, the law shall presume that the victim did not give consent.

Thus, it can be understood that: Before the passing of Criminal Law Amendment Act, 1983
these were only a general law of Rape under Section 375 and 376 of IPC, Section 375 and
376 of IPC were insufficient to cure the mischief of rapes committed by persons in authority
over women in custody. Moreover, there was another mischief namely having the burden of
proof on the rape victims to prove absence of consent.

In order to cure the above mischief, Criminal Law Amendment Act 1983 was passed and new
Sections 376 (2) and 376 (A) to (D) were inserted in the IPC which introduced the concept
and punishment of Custodial Rape. Section 114 - A was inserted in the Evidence Act in Favor
of the rape victims and improving the heavy burden of proof on the accused.

The true reason for the introduction of these new sections through the Criminal Law
Amendment Act is to suppress the mischief of Custodial rape and the heavy burden of proof
on the rape victims and to bring maximum justice to the rape victims.

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After the Delhi Rape Case, the criminal law in India has undergone further substantial
changes (w.e.f. 03.02.2013) Section 375 and 376 of IPC have been changed drastically to
such an extent that the term RAPE has been substituted by the word SEXUAL ASSAULT.
The new Section 375 contains very detailed and elaborate provision covering various forms of
sexual assaults. Moreover, it also covers sexual assault against males. Section 376 has been
further extended with higher levels of punishments in sexual assault cases.

Custodial Sexual assault [previously Custodial Rape] has been widened to include relatives,
teacher, guardians and persons in a position of economic or social dominance, etc. Section
376 A imposes punishment not less than 20 years and even death sentence if sexual assault
results in death or vegetative state of the victim.

New offences have been introduced namely:

1. Sexual harassment (Section 354 B)

2. Assault or criminal force on a woman with intent to disrobe (Section 354 B)
3. Voyeurism (Section 354 C)
4. Stalking (Section 354 D)
5. Acid attack (Section 326 A & B)

Corresponding changes have also been brought in the Criminal Procedure Code and Indian
Evidence Act. For example, Section 53A and Section 146 of the Evidence Act now clearly
specify that general immoral character and previous sexual experience of the victim shall not
be asked to the victim during cross-examination.

 Smith vs Hughes (1960) (WLR830):

Under the Street Offence Act, 1959 in England, the term ‘street offence’ is defined.
Accordingly, prostitutes who call or send signs to passers-by to attract their attention is a
‘street offence’. The issue in this case was whether attracting the attention of passers-by from
the balconies or windows could be considered as a ‘street offence’ because sitting inside the
house could not constitute a ‘street’. The court applied the mischief rule of interpretation and
held the prostitute guilty of ‘street-offence’. The object of the Street-Offence Act, 1959, was
to handle the mischief of prostitution in the streets and to ‘clean up’ the streets so that people
could walk along without being harassed and solicited by prostitutes. Hence, the exact place
[whether inside or outside the house] from where a prostitute calls or sends signals is
irrelevant.

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 Sonia Bhatia vs State of U.P (AIR 1981 SC 1274):

The U.P Imposition of Ceiling on Land Holding Act 1961 imposed several limits and
restrictions on holding land. The appellant's grandfather had gifted her some land through a
registered gift deed. The authorities refused to recognize the gift deed as it granted land in
excess of ceiling limits. The Supreme Court held that the U.P Land Ceiling law has social
objectives under Article 39 of the Constitution. It aims at equal distribution of wealth to help
the poor and weak. Poverty and backwardness are 'social mischiefs' in India, and the object of
the U.P Land Ceilings Act is to eradicate these mischiefs. In this process, the interests of a
few private individuals may be sacrificed for the larger interest of the community or country.

 K Garad vs Nasik Merchants Co-op Bank Hd (AIR 1984 SC 192):

Under Section 73 B of the Maharashtra Co-operative Societies Act, reservations for SC/STs
are to be made in the elections to Co-operative Societies. During the 1981-85 elections, such
reservations were not made. The appellant challenged the election before the Court. The
respondents argued that they were not bound to make reservations as per the bylaws of the co-
operative society. The Supreme Court gave judgment in favor of the appellants and ordered
fresh elections. Applying Heydon's rule of interpretation, the Court held that discrimination
against SC/STs in Hindu society has existed for thousands of years and is a 'social mischief.'
The Constitution of India provides equality and equal opportunities to all citizens and special
reservations to SC/STs to compensate for the sufferings they had to go through in the past.
This object is reflected in Section 73-B of the Maharashtra Co-operative Societies Act.

 Sanjay Dutt vs State through CBI (1994) 5 SCC 410:

Applying the mischief rule, the court held that a purposive construction promoting the object
of the Act (here, TADA - Terrorist and Disruptive Activities Act) must be adopted. But such
interpretation must not go beyond the frontiers of the Act. In penal statutes, an interpretation
that exempts the accused from liability must be adopted over the interpretation that includes
him in liability if there is no clear indication in the statute. The court has to infer the intention
of the legislation from the mischief to be checked and other practical considerations affecting
the burden of proof (In TADA, an accused shall be presumed to be guilty until proved
innocent).

14
 Administrator, Municipal Cooperation vs Dattatraya Oanhankar (1992) 1 SCC 362:

The court held that the mechanical approach to interpretation is altogether out of step with the
modern positive approach. The modern positive approach is to have a purposeful
interpretation to effectuate the object and purpose of the Act.

ADDITIONAL POINTS & CASE LAWS ON MISCHIEF RULE

 Delhi Transport Co-operation vs D.T.C Mazdoor Congress (1991) Sup 1 SCC 600:

The Delhi Road Transport Act, 1950, was amended in 1971. After the amendment, the
authorities could dismiss permanent employees without assigning any reasons. The Supreme
Court held that this regulation is wholly arbitrary, uncanalized, and violative of natural justice
because it excludes the right of 'Audi Alteram Partem' (Hear the other side). A statute must
show a remedy to a mischief. The statute itself should not become a mischief.

 Ashok Kapil Vs Sana Ullah (1996) 6 SCC 342:

Sana Ullah was the owner of a building with a tinned roof. He let out the building to a tenant
(Ashok Kapil's father) for 5 years. After 5 years, the tenant vacated the building. The tenant's
son (Ashok Kapil) filed an application before the Rent Control Authority to get the building
leased to him (As per U.P Urban Building Act 1978); the house of a tenant can claim pre-
emptive right of lease. While the application was pending, Sana Ulla removed the tin roof of
the building. A structure with no roof cannot be treated as a building under the Act.

The Supreme Court gave judgment in Favor of the tenant's son (Ashok Kapil) and held that it
was a building even though it had no roof. Applying the mischief rule, the Court held that the
object of the U.P Urban Building Act 1972 was to protect tenants from the mischief of
harassment by landlords. Removal of the tin roof by the landlord (Sana Ulla) was a wrongful
act, "Nullus commodum capere potest de injuria sua propria" (No man can take advantage of
his own wrong).

 P.E.K Kalliani Amma vs K. Devi (1996) 4 SCC 78:

Before the commencement of the Hindu Marriage Act 1955, polygamy was permissible
among Hindus. One Mr. Raman Nair had 2 wives and 9 children in the first marriage and 5
children in the second marriage. Both wives were in different States (Kerala and Tamil Nadu).
He died in 1975, and a dispute for his properties arose between both wives and their children.

15
The first wife contended that bigamy was prohibited under the Madras Marumakkathayam
Act, 1932. Hence, the second marriage was void, and the children of the second marriage
illegitimate and having no right in the deceased's properties. The second wife contended that
even though the Act prohibited bigamy, it was permissible under certain circumstances under
Section 11 and 12 of the Act.

The Supreme Court gave judgment in Favor of the appellant's (second wife and children).
Applying Heydon's rule, the Court held that the court has to keep in mind the mischief
intended to be remedied by the Act and also whether the legislation had intended to provide
benefit or reliefs to any person in spite of the mischief. Here the Madras Act definitely deals
with the mischief of bigamy in the inheritance of properties but at the same time provides the
right of inheritance to the issue of the second marriage under Section 11 and 12. So the
intention of the legislature is clear in giving the status of legitimacy to children of the second
marriage who would otherwise have been illegitimate.

 Goriss vs Scott (1874 LR 9 Exch 125):

The defendants were carriers. The plaintiff engaged the defendants to transport his sheep by
sea. Under the Carriage Act, "It is the duty of the carrier to make pens separating his sheep
and the consignee's sheep."

All the plaintiff's sheep were washed away in a storm while the ship was in transit. The
plaintiff sued the defendant, holding that the defendant had neglected his duty of arranging
pens for his sheep and claimed compensation. The defendant took the defense of 'Vis major'
[Act of God]. The court held that the defendant was not liable. The court held that the object
of the clause in the Carrier's Act was to prevent infection spreading among the sheep of the
carrier and the consignee. Hence the plaintiff could not seek relief for an altogether different
mischief. In this case, the loss of the plaintiff's sheep was due to heavy rains and storm (Act of
God).

Kelappan vs State (1989) (2) KLT 651:

Two males and two females found in the school veranda at an untimely hour (early morning)
prosecuted under Sec 47 of Kerala Police Act according to which wilful entry into public
buildings without reasonable cause was punishable. Accused persons contended that they
have not committed any offense of Criminal Trespass and had not committed any offense.
Court rejected their contentions and held them liable under Kerala Police Act, the object of
this Act is to prevent misuse of public buildings by anti-social elements.

16
To conclude, it is evident that under the mischief rule, the Act must be capable of wider
application than the mischief which gave it birth. If the Act is incapable of dealing effectively
with new mischief and new circumstances, it must be amended to cover the new mischief,
e.g., Amendments to Sec 375 & 376 of IPC. If necessary, a new separate Act may be created,
e.g., IT Act [Information Technology Act], Ragging Prohibition Act, Domestic Violence Act,
etc.

2) STRICT RULE

Strict rule of interpretation means that while interpreting a statute, courts should confine
themselves within the limits of the provisions of that statute itself. Courts are not permitted to
travel outside the limits of the statute in order to find out the true meaning of its provisions.
There is no room for presumptions or equity in this rule. Strict rule is mainly used while
interpreting statutes containing stringent provisions and heavy punishments like penal statutes
and taxation statutes.

 STRICT CONSTRUCTION OF PENAL STATUTES

Penal statutes are laws which create offenses, set out the elements of the offense, and lay
down the conditions for imposing punishments and measurement of punishment. Penal
statutes also include laws containing provisions concerning criminal procedure and
jurisdiction of criminal courts. Best examples of Penal Statutes are the Indian Penal Code
1865 and Criminal Procedure Code 1973. Other examples of penal statutes and statutes
containing penal provisions are TADA, 1987, POTA, POCSO 2012, Motor Vehicle Act 1988,
Essential Commodities Act 1955, Prevention of food adulteration act 1955, Food Safety Act,
Electricity Supply Act 1948, Municipality Act, Arms and Explosives Act 1986, Air Pollution
Act, Water Pollution Act, Employees Provident Fund Act 1952, etc.

Thus, it is evident that Penal statutes include not only purely criminal laws but also other
types of laws which contain punishment and penalty provisions. The penalty/punishment
sections of non- criminal laws should also be interpreted strictly.

 The following are the features of strict construction of Penal statutes:

Maxwell:
i. If the words or sentences in the statutes give rise to reasonable doubt regarding its
meaning which cannot be solved using the canons of interpretation, then the
benefit of doubt should be given to the subject and against the legislature which
failed to explain itself.

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 To put it simply: when the words or sentences in a penal statute or section gives
rise to more than one meaning - one in Favor of the accused and the other against
him, then that meaning which is in Favor of the accused which exempts or
releases the accused from punishment or penal liability should be adopted by the
court. The accused should not be made to suffer punishment due to poor unclear
and confusing drafting language of the lawmakers. But, if there is no ambiguity
and the act committed by the accused falls clearly within the offense defined in
the statute, then he can be penalized [Also see "void for vagueness rule" in
Chapter 3- Subsidiary rules of Interpretation]

ii. Court must make sure that the accused comes clearly and undoubtedly within the
plain words of the penal statute

iii. Burden of proof is on the prosecution to prove the guilt of the accused beyond
reasonable doubt. Benefit of doubt should be given to the accused. The maxim
'Let a hundred guilty men escape from punishment, but one innocent should not be
punished.'

iv. If the accused takes defense of general exceptions like insanity, minority,
intoxication, mistake of fact, etc, then the burden of proof is on him to establish
that he falls within these exceptions. Likewise, some laws like Excise laws,
TADA, POTA, etc., imposes burden of proof on the accused to prove his
innocence. In these laws, the presumption is guilty until proved innocent, whereas
under ordinary penal laws the presumption is innocent until proved guilty.

v. Age, character and experience of accused must be considered

vi. MENS REA [Guilty intention] should be taken into consideration before imposing
punishment. But Mens rea is not relevant in statutory offenses like Environment
Pollution, Food adulteration, Traffic rules, laws relating to public health, drugs,
medicines, etc. Mens rea is also not relevant in cases involving vicarious liability.

vii. Penal statutes cannot be given retrospective effect. But if a penal statute imposes
lighter punishment with retrospective effect, then its benefit should be given to the
accused.

viii. Special care should be taken before imposing capital punishment.

18
 ix. Accused shall not be compelled to be a witness against himself.

x. Principles of Autrefois acquit and Autrefois convict, should be followed. That is a

person who has been acquitted or convicted by a competent court for an offense
cannot be prosecuted or punished again for that same offense again.

To conclude; in the words of MAXWELL, strict interpretation of penal statutes requires:

 Express and clear language creating an offense

 Express and clear language laying down the elements of the offense; that is the
conditions under which a person can be treated as having committed the offense.

E.g: Sec 120A of IPC states the offense of Criminal Conspiracy. Under the section, a person
is said to commit criminal conspiracy if:

 He enters into an agreement with another

 To commit an unlawful act or
 A lawful act by unlawful means
 Provisions imposing punishments and measurements (quantum) of punishment for
the offence
 Compulsory following of criminal procedural laws in the trial of the offense.

 Tukaram vs State of Maharashtra (Mathura Rape Case 1979): Accused were

acquitted from charge of rape because as per the criminal law of rape at that time,
burden of proving absence of consent was on the victim and she could not
discharge this burden properly. Moreover, she could not prove her minority.
Applying the strict rule; benefit of doubt given to accused.

 Rangila Rasul case [Emperor vs Rajpal (1927)]: Accused was charged under
section 153A of IPC [Creating enmity between classes on the ground of
religion…] as his work Rangila Rasul, depicting the Prophet as a sexually
immoral character led to huge uproar and controversy. But court acquitted him on
the ground that controversial discussion and books on deceased religious leader
could not be made punishable under sec 153A. [In order to fill this gap Sec 295A
Outraging religious feelings… was added to the IPC later on].

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 R v Munks (1964) 1QB304: In this case M arranged an electrical device
consisting of two wires which would cause a severe shock, the object being to
keep his wife out of his house. He was charged under Section 31 of the Offence
Against the Person Act, 1861 which penalizes whosoever shall set or place… any
spring gun, man trap or other engine calculated to destroy human life or inflict
grievous bodily harm with intent specified in the Act. The Court of Criminal
Appeal held that since the statute being a Penal Statute the word ‘engine’
should be given a limited meaning to include only a mechanical contrivance and it
rejected the argument that the word should be given a general meaning to include
a contrivance or device.

 Smaje V Balmer (1965 (2) Aller 248): In this case the question was whether a
“stone” came within the words “any dangerous or offensive weapon or
instrument” in Section 28(1) of the Larceny Act 1916. The Court held that a stone
did not fall within the words which were dealing with weapons or instruments
adapted or intended for causing injury to a human being.

 Alamgir vs State of Bihar (AIR1959 SC436) Section 498 of IPC makes taking
away or enticing away or concealing/detaining the wife of another person an
offense. In the case the wife voluntarily left her husband out of her free will and
came to stay with the accused. Held accused not liable.

It is clear that a person can be made liable under a penal statute only if his acts can
be brought unambiguously within the clear words of the statute. Otherwise, he
should be given the benefit of doubt and acquitted.

 R vs Prince (1875) Even though ‘Mens rea’ is to be proved before making a

person liable under a penal statute it is not necessary if expressly or impliedly
excluded by the statute. In this case a statute made kidnapping a minor out of
lawful guardianship an offense. Accused contended that he was not aware that the
girl was minor and that the girl herself had told him that she was a major. But the
Court rejected his contentions and held him guilty of kidnapping. Because the
statute does not say that the accused should have knowledge about the age of the
kidnapped girl. Offense is complete as soon as a person takes away a minor out of
lawful guardianship.

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  R vs Tolson (1889), Accused was charged for the offense of bigamy as she had
remarried during the lifetime of her former husband. Court held that she was not
liable as she wasunder a bona fide belief that her former husband had died in a ship
accident. She had made reasonable inquiries in this behalf and waited for his return for 7
years. She had also disclosed all these facts to her second husband. Ignorance of fact or
mistake of fact is excusable. Court held that for the offense of bigamy, proving of ‘mens
rea’ is necessary.

 R vs Wheat & Stock, accused an uneducated person entrusted his divorce case to
an advocate and remarried soon. He was under a bona fide belief that he had
obtained divorce from his first wife as soon as he had entrusted the case to his
advocate. But the Court held that he was liable for Bigamy because ‘Ignorance of
law or Mistake of law’ is not an excuse.

 STRICT INTERPRETATION OF TAXING STATUTES

Interpretation means the art of finding out the true meaning of the words in a statute [law]. A
taxing statute is a law which compulsorily imposes a tax, fee, cess, or duty. A taxing statute
consists of 3 main parts:

1. Charging section: A section which declares the tax liability of a person

2. Assessment sections: contains the methods of computing/calculating the tax

payable

3. Recovery sections: Contains provisions for recovery of tax from a person who
does not pay tax voluntarily.

While interpreting a taxing statute [be it the Income Tax Act, Wealth Tax Act, Sales Tax Act,
Value Added Tax Act, Central Excise Duty or any other Act related to tax, fee,,cess or duty]
the Court should keep in mind the following rules:

Generally, STRICT RULE of interpretation is to be followed in case of taxing statutes. It

covers the following principles:

I. There is no presumption or equity as to tax. If a person comes clearly within the scope
of the charging section of a taxing statute, he must be taxed no matter however great
his hardship may be. Partington vs AG (1869) LR4HL

21
 A person can be taxed only if the words of the taxing statute clearly, expressly and
unambiguously (without confusion) impose tax-liability upon him. Before taxing a
person, it must be shown that he falls within the ambit of the charging section by clear
words used in that section. There is no implied power to tax. The power to tax must be
express and clear. Russell vs Scot (1948) 2 ALL ERI

 Commissioner of Wealth Tax vs Ellis Bridge Gymkhana (AIR 1998 SC 120)

While interpreting a taxing statute, if an ambiguity occurs that is, if the words of
the taxing statute are open to double meanings, one in favour of the taxpayer and
one against him, then that meaning which is favourable to the taxpayer must be
adopted.

 In CIT vs Jalgaon Electric Supply Co (AIR 1960 SC 1182) it was held that there
is nothing wrong or unjust, if the taxpayer escapes from the law due to inability of
the legislature to express itself clearly.

II. Charging section and computation sections must be read together. If the
computation sections cannot be applied to a person's case, it can be safely
interpreted that the charging section also does not apply to him CIT vs Srinivas
Setty (AIR 1981 SC 972)

III. An interpretation which supports double taxation should be avoided as far as

possible. But, if the double taxation is legally maintainable [If it is imposed by
competent authorities through a clear law and does not violate fundamental rights]
then it can be upheld.

IV. If there is a Casus Omissus (a point missed or not provided by the legislature) in a
taxing statute then the courts should not try to fill in such gaps as it feels like -
Shirinivas Rao vs Govt of AP (2006) 12 SCC 607.

V. Logic or reason is of not much use in the interpretation of taxing statutes. For Eg:
Azamjiha vs Expenditure Tax Officer (AIR 1978 SC 2319) then issue was the
interpretation of the word 'dependent.' According to words in the Act, Dependent
means the assessee's (taxpayer's) spouse, minor child or any person wholly or
mainly dependent on the assessee. The court held that the words wholly or mainly
dependent on the assessee are not applicable to spouse and minor child. Hence,
spouse and minor child can be treated as dependents even if they have separate
income and not actually dependent on the assessee.

22
 In Forage & Co Ltd vs Municipal Corporation of Bombay, the schedule of the
Act laid down a list of items taxable under the head of materials used for road
construction and repair; Zinc oxide was one of the items mentioned in the list. The
assessee contended that Zinc oxide was not a material used for road construction
or repair. But, the court held that, where the words of the Act are clear and express
then it should be followed strictly. Hence, Zinc oxide is taxable under the head of
Materials used for road construction and repair even though it is not actually used
for that purpose.

VI. While classifying taxable goods under the taxing statute specific headings should
be given more preference than general headings For Eg: Alpine Industries vs
CCE (AIR 2003 SC 935) the question was under which heading is 'lip balm'
taxable? Court held that it would not come under the general heading of
'medicament' but under the specific head of 'preparation for skin care'

If there is a change in the meaning of a taxable good as a result of which it comes under a
different classification head; then the burden of proof is on the tax department to prove it. For
eg: in Mauri Yeast India (P) ltd vs State of UP (2008) 5 SCC 680 the tax department
accepted the classification of the assessee's goods under a particular entry for over 20 years.
Later, the department tried to tax it under a different entry. Court held that it is up to the
department to prove that the meaning of the goods has changed in order to classify it under a
different entry.

VII. If there are penalty/punishment provisions in a taxing statute, the court should
follow the doctrine of 'mens rea' while interpreting such provisions. Gujarat
Travancore Agency vs CIT (AIR 1989 SC 1671)

VIII. While interpreting the classification of a good [that is; while deciding whether a
particular good is taxable or not its common parlance meaning should be adopted
unless the Act gives a special meaning to that good Eg Motipur Zamindary vs
State of Bihar the issue was whether 'sugarcane' was a 'green vegetable' for the
purpose of tax exemption under the Bihar Sales Tax Act. The court held that
though sugarcane is a green-vegetable botanically yet it cannot be treated as a
green-vegetable. In its popular meaning. Hence, it is taxable

23
 While interpreting tax-exemption provision the object of the tax exemption should
be considered. If the object of the tax exemption is public good or social welfare
then liberal interpretation which favours the exemption should be followed. E.g.,
Tax exemptions for non-profit-making educational institutions- Oxford University
Press vs CIT (AIR 2001 SC 886), exemptions for lifesaving drugs- Collector of
Customs vs MJ exports (2001) 6 SCC 756, if the tax exemption does not involve
much public welfare objects or other beneficent objects, then it should be
interpreted strictly. That is, if two views are possible, the one which is against the
assessee should be followed. Otherwise, it may lead to increase the burden on the
society.

IX. An interpretation which is likely to lead to large-scale tax evasion and tax
avoidance should be avoided. CCE vs Acer India Ltd (2004) 8 SCC 173,
McDowell & Co Ltd vs CTO (1985) 3 SCC 230

X. Even though equity and tax are strangers, when two views are possible the view
which is equitable should be adopted and the view which results in injustice
should be avoided. Eg: CIT vs J H Gotlayadgiri (AIR 1985 SC 1698) Under the
Income Tax Act, the income from business of a wife or minor child of the
assessee is treated as the income of the assessee himself. The Court held that, in
such a situation the business losses of the assessee's wife or minor child can be
treated as the losses of the assessee and can be deducted by the assessee.

3) RESTRICTIVE RULE

Some statues contain provisions which restrict or limit the provisions of the same
statute or another statue. While interpreting such statutes: Court should keep such
restrictive provisions in mind.

Egs: - Some laws contain a clause… "It extends to the whole of India except the
State of Jammu and Kashmir.”

 Sec 11 of Indian Contract Act restricts a valid contract to persons who are major,
of sound mind and not disqualified.

 Sec 18 of Partnership Act limits the Liability of partners for the wrong committed
by a co-partner; only if such wrong was committed by the co-partner for the firm
in the course of trade.

24
  All the offences under the Indian Penal Code are restricted by Secs 76-106
(General Exceptions from criminal liability).

Eg: 'X' murders 'Y' in order to save himself from grievous hurt by 'Y’ Here; the
Court must consider Secs. 96-106 IPC Right of Private defence) during the
prosecution of 'X' under Sec. 302 (Murder). Hence, in this case. Sec. 302 of IPC is
restricted by sections 96- 106.

 Fundamental rights/ freedoms under Article 19 of Constitution are restricted by

reasonable restrictions under Article 19 (1) to (6).

 Sec. 21 of Factories Act imposes duty upon an employer to provide fencing

around machinery for safety of workers. However, this liability is restricted to
moving and dangerous machinery' only.

 There are provisions under the Partnership Act restricting the number of
partnership Act and Companies Act restricting the number of partners and
members in a firm or company. If the number of partners in a firm exceeds 20 it
shall be treated as an illegal association.

 Restrictive provisions may also begin with the words: “Subject to the provisions
of this Act" or "Subject to the provisions of this Section”,

The object of Restrictive provisions is to limit the scope of the section to certain persons, or
purposes or circumstances only without disturbing the entire Act or other Acts.

In A. K Roy v. State of Punjab (AIR 1986 SC 2160) it was held that if liberal construction of
a rule of law leads to a consequence not intended by the legislature; then they should be
construed restrictively.

 Romesh Thappar vs State of Madras

The appellant challenged the prohibition of his newspaper ‘Cross-roads' in Madras State-on
the ground that the prohibition order violated his freedom of speech and expression under
Article 19(1)(a) of the Constitution.

Court held that freedom under Art. 19(1)(a) is not absolute but subject to reasonable
restrictions under at 19 itself [Public order, morality, decency, sovereignly and integrity of
India, friendly relations with foreign Stales, contempt of Court, defamation or incitement to
an offence].

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4) LIBERAL RULE

According to this rule of interpretation, statutes which are aimed to provide certain benefits to
a particular class of persons should be interpreted liberally in such a way so as to confer the
benefits on such persons. In such benevolent and beneficent statutes; if two or more
interpretations are possible; then that interpretation which gives the benefits should be
adopted and not that interpretation which denies the benefits.

Egs - Provisions of laws like Workmen's Compensation Act, Maternity Benefits Act, Juvenile
Justice Act, Probation of offenders Act, social welfare legislations for protection and benefits
of socially and economically backward classes, reservation laws for minorities, handicapped
and scheduled classes, pension schemes for freedom fighters etc should be liberally construed.
Exemption provisions in any law should be liberally construed.

Exemption provisions are those which exempt a person from the scope and liability of that
law. For eg:- under the Income tax Act, 1961; income from agriculture and business in north-
east India are exempted from tax. Supreme Court and High Courts have adopted liberal rule
on several occasions while interpreting cases related to Fundamental rights and Directive
Principles.

For Eg. Right to life under Article 21 of the Constitution has been liberally interpreted in
several landmark cases so as to include:

 Right against torture

 Right to live in unpolluted environment.
 Right to free, fair and speedy trial.
 Right to privacy
 Right to pure water
 Right to travel
 Right to sleep, etc.

Remedial and procedural laws must be liberally construed so as to enable speedy, simple and
less expensive administration of justice.

However; it is to be noted that if beneficial and social welfare legislations have a scheme of
their own; then the court cannot travel beyond that scheme, in order to extend the benefit of
these legislations to those who are not covered by the scheme - Held in Regional Director,

26
ESI vs. Ramanuja Match Industries (AIR 1985 SC 278).

 M. Nagraj v. UOI (AIR 2007 SC 71) - Held that Constitution must be construed in a
liberal manner. So that constitutional provisions do not get fossilized but remains
flexible enough to meet newly emerging problems and challenges.

 CST vs. Industrial Coal Enterprises (1999) 2 SCC 607- Respondent were a small
scale industry. Sales tax dept. withdrew its tax- exemptions on the ground that the
capital investment exceeded the limits prescribed under the UP Trade tax Act, 1948. Court
gave judgement in favour of the respondents. Applying the liberal rule, it was held that sales-
tax exemption laws were intended to encourage capital investment and establishment of
industries.

The respondent had initially not exceeded the prescribed investment limits. After
obtaining tax exemption the respondent unexpectedly became the owner of some land
nearby his industrial unit. This cannot be treated as an increase in capital investment.

 UOI vs. Syed Sarwar Ali &Ors (1998) 9 SCC 426 It was held the liberal rule cannot
be applied to grant the pension scale of a retired Chief Justice of High court to a
person retired as an Acting Chief Justice or Judge of a High court. Court refused to
apply liberal rule in the interpretation of High court Judges (Conditions of Service)
Rules, 1954. It was held that where the language of a statute is clear and
unambiguous,then it is not permissible for the court to interpret it liberally and give it
a different meaning.

In P.Geetha v. Kerala Livestock Development Board Ltd., 2015 SCC Online Ker 71 - a case
filed by a woman employee against the Kerala Livestock Dept Board, it was held that the
benefit under Maternity Benefits Act is available even to a commissioning mother. (A
commissioning mother is a woman who gives birth to her child through a surrogate mother by
process of artificial insemination. Surrogate mother is a women who gives birth to a birth to
the child of another couple). Court applied the liberal rule and held that a commissioning
mother is entitled to the benefits under Maternity Benefits Act, even though she does not
actually undergo the process of childbirth. However, she cannot claim the benefits of
convalescence period. (This case may be cited for Beneficent Rule too).

27
5) BENEFICENT RULE -

It is an off-shoot of Liberal rule of interpretation. Statutes with beneficial objects should be

liberally interpreted If the words of such beneficent laws lead to two or more interpretations,
then that interpretation which promotes the beneficial object of that law should be adopted.
Egs: - of beneficent statutes are Land Reforms Act, Employees State Insurance Act,
Employees Provident Fund Act, Payment of Bonus Act, Maternity benefits Acts, Payments of
Gratuity Act, Workmen compensation Act, etc.

Such laws are intended to achieve the object of social justice and social betterment. Hence,
such statutes should not be construed too restrictively. The maxim "Salus populi suprema lex'
(Welfare of the people is the Supreme law) should be kept in mind while interpreting such
statutes. Where there is ambiguity in the words of a beneficent statute; that interpretation
which confers the benefits on the people should be adopted.

Principles of public good, general utility, justice, equity and good conscience must be
followed. Beneficent rule of construction should also be followed while interpreting
Fundamental Right and Directive Principles in the Constitution and General exceptions from
Criminal liability under the Indian Penal Code.

(Note: - Beneficial / Welfare Statutes are also known as Remedial Statutes)

 T. Barai vs. Menry An Hoe (AIR 1983 SC 150)

Where an earlier law imposes rigorous punishment for an offence and a later law reduces the
punishment; the earlier law must be deemed to have been repealed by the later law by
applying rule of beneficent construction.

 Secretary, HSEB, Haryana vs: Suresh (1999) 3SCC BOI

Court liberally interpreted Contract Labour (Regulation & Abolition Act) and held that
temporary contract with ‘Safai Karmacharis’ who have put in many days of service could be
permanently absorbed into service.

 Employees ' state Insurance Corporation Vs. R.K.Swamy (1994) 1 SCC 445

Issue: The State Government issued notifications u/s 1(5) of the Employees' State Insurance
Act, 1948, extending the provisions of the Act to hotels, restaurants, shops, cinemas
(including theatres) and newspaper establishments. The question was whether an advertising
agency and a shipping company could be called 'shops' for the purpose of this Act.

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The Supreme Court gave judgment treating the advertising agency and shipping company as
'shops' and would come within the purview of the 1948 Act for the benefit of the employees
working in such shops.

PRINCIPLES: (i) There is no doubt at all that the said Act (ESI Act, 1948) is beneficent
legislation. If, therefore, it is reasonably possible so to construe the word 'shop' as to include
the activity of advertising agency within it, that construction must be preferred. (ii) When a
beneficent legislation is construed wider interpretation must be given extending it to the
workers.

 Madan Singh Shekhawat vs. Union of India (1999) 6 SCC 459)

The appellant was working as a Sawar (Horse Rider) in Army. While he was proceeding to
his native village on authorised casual leave, he met a railway accident; and as a result of that
accident his hand was amputated. On that date, he had completed 11 years and six months. He
applied for disability pension. The Defence Authorities rejected his claim under the Defence
Services Regulation, saying that his hand was amputated as a result of general accident, but
not in service in army.

Rule 6(c) of the Defence Services Regulations states: "A person is also deemed to be on duty
during the period of participation in recreation, organised or permitted by service authorities
and of travelling in a body or singly under organised arrangements. A person is also
considered to be on duty when proceeding to his leave station or returning to duty from his
leave station at public expense." The appellant contended that he was in service as per the
meaning of Section 6(c). The trial Court and High Court also upheld the decision of the
defence authorities.

The Supreme Court gave judgment in favour of the appellant holding that he was eligible for
disability pension.

PRINCIPLES: (i) Section 6(c) is a deeming provision' which provides for situations under
which a person on duty, if he suffers disability, is entitled to the grant of disability pension.
(ii) If the expression 'at public expense' is to be construed literally then under the rules
referred to above, an army personnel incurring a disability during his travel at his own
expense will not be entitled to the benefit of Rule 6(c). The object of the rule, as we see, is to
provide relief to a victim of accident during the travel. If that be so, the nature of expenditure
incurred for the purpose of such travel is wholly alien to the object of the rule.

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(iii) It is the duty of the court to interpret a provision, especially a beneficial provision,
liberally so as to give it a wider meaning rather than a restrictive meaning which would negate
the very object of the rule.

 Sandeep Kumar Sharma vs 87 of Punjab (1997) 105(298)

Held-Relaxation rules must be liberally interpreted in order to give benefit to deserving

persons, and to mitigate hardships. In this case the appellant was successful in all tests of
Punjab PSC conducted for selection to post of Deputy Superintendent of Police. But his
height factor was found short by 1.20cm. But the deficiency was relaxed; taking into
consideration the service of his brother during the terrorist attacks in Punjab.

6] STATUTE MUST BE READ AS A WHOLE (EX VISCERIBUS ACTUS)

This rule is also known as CONTEXT RULE or the RULE OF CONTEXTUAL

INTERPRETATION. While interpreting a particular section or part of a statute, the Court
should read the entire statute in order to determine the true meaning and scope of that
particular section or part. In order to determine the intention of the legislature, court should
consider the whole CONTEXT (background, and surroundings] of the Act. Each and every
Section or Article of a Statute is interlinked with other sections and other parts of the same
Statute like Preamble, illustrations, schedules, exceptions and so on. All of these should be
considered as a whole and read together, if necessary, over and over again in order to reach at
a correct interpretation. Sections and phrases: whether small or big must be read entirely
along with all sub-sections and paragraphs and other parts of the statute.

While disposing Kalyan Rai vs. Second Additional District Judge (1982 All Rent Cas 363),
the Allahabad High Court observed: "In order to ascertain the true intent and purpose of a
statutory provision, the Court should not read the provision completely divorced or detached
from the context in which the provision is set or lose sight of the object or purpose of the
enactment as manifested by the other related provisions appearing on the same statute."

Statute must be read as a whole: The basic and fundamental rule of interpretation is that
statute must be read as a whole, and all parts of an Act should be taken together. The whole
and every part of the Act should be considered in the determination of the meaning of any of
its parts. While disposing Richards vs. United States (359 US 1), Warren, C.J. observed: "We
believe it fundamental that a section of a statute should not be read in isolation from the
context of the whole Act, and that in fulfilling our responsibility in interpreting legislation we

30
must not be guided by a single sentence or a number of sentences, but should look to the
provisions of the whole law and to its object and policy."

Every clause and section and word in an Act should be understood with reference to the
context and other parts of the Act. This is because the words in an Act do not always have
their primary meaning. Meanings of the same words may differ according to the nature of the
Act . Eg: - Under Sec. 58 of the Transfer of Property Act, 1882; "Transfer means- Sale,
Exchange, Mortgage, Gift, Lease and Charge. But under Sec of the Income -tax Act
‘Transfer’ has a much wider meaning and includes Sale, Exchange, Compulsory acquisition,
conversion into stock-in-trade; extinguishment, relinquishment, etc.

Under the Consumer Protection Act: Electricity, water, gas also comes within the definition of
goods. But these things are not treated as goods under Value added tax Acts.

Under Transfer of Property Act, 'immovable property also includes fixtures [windows, fans,
doors, etc] and benefits arising out of land (eg: fish in pond, etc).

Art 21 of the Constitution says about Right to life. Right to Life has been widely interpreted
by Courts in various cares so as to include Right to privacy, Right lo travel ,Right to free and
fair trial, etc. While interpreting Art 21, Courts consider the entire framework or context of
the constitution like Preamble, Directive Principles and other fundamental rights and
freedoms.

It is also well settled that the Court should examine every word of a statute in its context and
to use context in its widest sense. In Reserve Bank of India vs. Peerless General Finance
and Investment Co Ltd. (1987) 1 SCC 424), the Supreme Court observed: "That
interpretation is best which makes the textual interpretation match the contextual. “In this
case, Chinnappa Reddy. J. noting the importance of the context in which every word is used
in the matter of interpretation of statutes held thus: “Interpretation must depend on the text
and the context. They are the bases of interpretation. One may well say if the text is the
texture, context is what gives the color. Neither can be ignored. Both are important. That
interpretation is best which makes the textual interpretation match the contextual. A statute is
best interpreted when we know why it was enacted.

With this knowledge, the statute must be read, first as a whole and then section by section,
clause by clause, phrase by phrase and word by word. If a statute is looked at, in the context
of its enactment, with the glasses of the statute-maker, provided by such context, its scheme,

31
the sections, clauses, phrases and words may take color and appear different than when the
statute is looked at without the glasses provided by the context. With these glasses we must
look at the Act as a whole and discover what each section, each clause, each phrase and each
word is meant and designed to so as to fit into the scheme of the entire Act. No part of a
statute and no word of a statute can be construed in isolation. Statutes have to be construed so
that every word has a place and everything is in its place."

 Butter vs. Bennett (1963 Ch 185)

According to Section 161(1) of the Income-tax Act, 1952 (England), the costs of "living or
other accommodation, of entertainment, of domestic or other services or of other benefits or
facilities of whatsoever nature" provided to an employee by his employer, were liable to be
taxed in the hands of the employee.

In the above case, the employer appointed the employee to manage a mill, and provided a
house appurtenant to the mill with free coal and electricity supply and the services of a
gardener. The income-tax officer included these facilities in the salary of the employee in the
assessment. The employee contended that due to the nature of his job, being the manager of
the mill, he was required to live nearby the mill and watch the functions of the mill day and
night. These facilities were provided by the employer as a part and parcel to promote his
business activities, but not with an intention to provide them to the employee.

The Court of Appeal gave judgment in favour of the employee.

PRINCIPLES: (i) Section 161(1) of the Income-tax Act, 1952 should be construed along with
other provisions of that Act. The income-tax could not be charged solely basing upon Sec.
161(1).

 Concept of 'Statute should be read as a whole was also embodied in ancient "Mimamsa"
as follows:

"UPAKRAMOP SANHARD ABHYASO UPPURWATTA PHALAM ARTHA

WADOPPATTI CHA LINGAM TATPARYA NIRNAYE."

"Prologue, Epilogue, Repetition, Novelty, Utility, Praise and Deduction are the indices to
determine the meaning (Tatparya)."

UPAKRAMA Prologue. UPASAMHARA- Epilogue ABHYASA - Repetition.

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APURVATTA- Novelty
PHALAM - Result.
ARTHAVADA – Praise
UPAPATTI- Logical deduction.

This means that when one has to draw the conclusion from a writing, he has to read it from
the beginning till end as without doing it, it is difficult to understand the purpose. ((K.L.
Sarkar: Mimamsa Rules of Interpretation)

These ancient principles of interpretation are the basis for the modern rules of interpretation.

7] LEGISLATIVE INTENT (SENTENTIA LEGIS)

Also known as DETERMINATION OF LEGISLATIVE INTENT rule.

The very purpose of interpretation is to determine legislative intent. Where the wordings in a
statute are ambiguous or leading to two or more meanings, it is the duty of the court to find
out the true meaning of the words: which the law-makers had in mind.

Salmond writes: "The traditional English view is the following. The duty of the judicature is
to discover and to act upon the true intention of the legislature - the mens or sententia legis.
The essence of the law lies in its spirit, not in its letter, for the letter is significant only as
being the external manifestation of the intention that underlies it. Nevertheless, in all ordinary
cases the courts must be content to accept the litera legis as the exclusive and conclusive
evidence of the sententia legis. They must in general take it absolutely for granted that the
legislature has said what it meant, and meant what it has said." Salmond further writes: "The
object of interpreting a statute is to ascertain the intention of legislature enacting it."

 Lord Denning in Magor and St. Mallons Rural District Council vs. Newport
Corporation (1950) 1 All ER 1226) held: "We sit here to find out the intention of
Parliament and of Ministers and carry it out, and we do this better by filling in the gaps
and making sense of the enactment than by opening it up to destructive analysis."
Thus, the intention of the legislature has to be ascertained from the language of the
statute. If the words of the statute (litera legis] are clear and unambiguous; it should be
given effect to. But, of there is ambiguity; the Court will have to use various tools of
interpretation to ascertain the meaning which was intended by the legislature. In other
words; the Court will have to find out the sententia legis (spirit of the law) hidden behind the

33
 litera legis (letter of the law). Court should interpret the statute in accordance with the
intention of the statute - makers.

IMPORTANT POINTS & CASE-LAWS ON LEGISLATIVE INTENT [SENTENTIA

LEGIS]:

 Legislative intent can be determined and understood by reading the statute as a whole:

 Kerala State Housing Board Vs. Ramprya Hotels (P) Itd (1994)5 SC 672- Provisions
of a statute should be construed in such a way which serves the purpose of the statute
and does not defeat it.

 A.P. Rice Bran Solvent Extractors Associations Vs. UOI (1998)8 SCC 384)

Parliament enacted 2 Acts namely:

 Vegetable Oil Cess Act, 1983 and

 National Oil seeds & Vegetable Oil Dept. Board Act, 1983.

Govt. also established National oil seeds and Vegetable oil Dept. Board for development of
vegetable oils in the Country. Under Vegetable oil Cess Act, 1983; Govt could impose 'cess'
on oil seeds industries and vegetable oil industries to promote development.

Govt imposed cess on 'rice-bran' oil. It was challenged by the appellants who were
manufacturers of rice-bran oil. they contended that rice-bran was not a vegetable and hence
cannot be brought under the scope of the Act. The High Court held that since rice-bran is an
oil- bearing materiel of plant origin; rice bran oil could be treated as vegetable oil. But
Supreme Court reversed the decision of the High Court. Supreme court held that the intention
of the legislature in the enacting Vegetable oil Cess Act, 1983 was to improve the quality and
quantity of vegetable oils in the country used for human consumption; that is for the dinner
table. But, rice-bran oil; a by-product of paddy is used for industrial purposes; and hence
cannot be treated as vegetable oil.

 M. Satyanarayana vs State of Karnataka (AIR 1986 SC 1162)

Rule 4 of Karnataka Medical Colleges Rules, 1984, provides reservations in medical colleges
for the children of political sufferers or freedom fighters. Rule 4 lays down the conditions for
claiming reservation as follows.

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A person:

(a) who prior to 15th August 1947 participated in the struggle for Indian Independence
and

(b) who even after 15th August 1947 participated in the struggle in any princely state for
accession of such state to the dominion of India.

Rule 4 also stipulates that the applicant should also submit the certificate of freedom fighters’
proof (documents like imprisonment certificates, or affidavits of M.LA’s or M. P’s or
certificate of a co-prisoners). The applicant failed to produce the required documents. He
claimed admission on the ground that his father was a freedom fighter (he also contended that
the conditions in Rule 4 should be read independently and not combined) In other words, he
argued that and should be read as or. Court rejected his arguments and held that the conditions
in Rules for should be read conjunctively. Reading the conditions independently would defeat
the legislative intent. It will lead to a situation where the children of mere freedom struggle
participants could claim admission. The intention of the legislature is to give seat reservations
for the children of political sufferers. (Mere participation in freedom struggle would not make
a person a political superior.)

The Court also held that; a statue cannot be construed only by reference to grammar. Even
though 'and' is grammatically used in a conjunctive manner; (in order to give effect to the
intention of the legislature; it may be read in a disjunctive manner) In other words; in some
circumstances 'and' could be read as 'or’. BUT, in this case; doing so would defeat the
intention of the legislature.

 Sanjay Dutt vs State through CBI- TADA Act imposes liability on persons in an
unauthorized possession of 'arms and ammunition’. In this case Court held that the
term 'and' should be understood as 'or'. Otherwise; It would be against the legislative
intent.

 Rudsaiah v State of Karnataka (1998 3 SCC 23) 8[see in topic-Literal rule of

interpretation]

 Lee vs. Kпарр (1967)12[see in topic-Golden rule of interpretation]

 Mohd Ali Khan vs. CWT (1997)3 SCC (511)- Each and every word of a statute
implies the true intention of the legislature.

35
  Kartar Singh vs State of Purjab (1994)3 SCC569)- Court can go behind the words to
ascertain legislative intent.

 Kerala State Housing Board Vs. Ramapriya Hotels (P) Hd (1994)5 SCC 672-
Provisions of a statute must be construed in a manner which serves the purpose of the
statute and does not defeat it.

 State of Jharkand vs Govind singh (AIR 2005 SC 294) - Supreme Court explained
the rule of legislative intent as follows: “When the words of a statute are clear, plain or
unambiguous; that is, they reasonably lead to only one meaning the Courts are bound
to give effect to that meaning irrespective of the consequences. The intention of the
Legislature is primarily to be gathered from the language used. Attention should be
paid to what has been said and also to what has not been said. Thus, intention of
legislature is most important factor for administering justice according to law. If court
fails to derive the true intention it will lead to miscarriage of justice. Legislative intent
must be primarily gathered from the language itself ”.

8] HARMONIOUS CONSTRUCTION

When there is a conflict between two or more provisions (of the same statute or different
statutes) it is the duty of the court to resolve such conflicts and bring harmony between the
conflicting provisions. Court should interpret in such a way that the conflicting provisions can
be both given effect to and without making any of them otiose (useless, surplus, unnecessary].
Court should try to reconcile conflicting sections as far as possible. The following are the
features of Harmonious Construction:

 It is a rule of interpretation wherein the provisions of a statute must be interpreted in

such a way so as to avoid possible conflict with other provisions of the same statute or
different statutes.

 It is the duty of the court to harmonize contradictory and conflicting provisions of

statutes so as to sustain all of them without striking down any of them.

Sultana Begum vs Premchand Jain[1997]SC375-

 It is the duty of the courts to avoid a head-on clash between two sections of the Act
and to construe the provisions which appear to be in conflict with each other in such a
manner as to harmonize them.

36
  The provisions of one section of a statute cannot be used to defeat the other provisions
unless the court, in spite of its efforts, finds it impossible to effect reconciliation
between them.

 It has to be borne in mind by all the courts all the time that when there are two
conflicting provisions in an Act, which cannot be reconciled with each other, they
should be so interpreted that, if possible, effect should be given to both. This is the
essence of the rule of 'harmonious construction'.

 The Courts have also to keep in mind that an interpretation which reduces one of the
provisions as a 'dead letter' or 'useless lumber' is not harmonious construction.

 To harmonize is not to destroy any statutory provision or to render it otiose.

Every provision in the Act needs to be construed harmoniously with a view to promote the
object and spirit of the Act but while doing so, no violence would be done to the plain
language used in the section. Where there appears to be inconsistency in two sections of the
same Act, the principle of harmonious construction should be followed in avoiding a head on
clash, it should not be lightly assumed that what the Parliament has given with one hand, it
took away with the other. The provisions of one section of statute cannot be used to defeat
those of another unless it is impossible to reconcile the same-Krishna Kumar vs. State of
Rajasthan 1991 (4) SCC 258).

 Union of India vs Herram Singh (1993 (2) SCC 162)- Harmonious construction
should be in accordance with the intention of the Legislature.

 Jeewanlal Ho vs: Appellate Authority (AIR 1984 SC1842)- Harmonious

interpretation is not possible if the conflicting provisions are quite distinct and
separate.

 Sultana Begum vs Prem Chand Jain (1997)1 SCC 373.- Appellant (land-lady) filed a
suit for evicting the respondent (tenant) while the suit was pending, they
compromised. Accordingly, it was agreed that the respondent would vacate the
building and hand over the possession of the building to the appellant or her attorney
on a particular date. The Court passed a COMPROMISE DECREE based on this
agreement.

The respondent did not vacate the building as per the agreement. The appellant filed
Execution Petition (E.P.), to evict the respondent under Order 21 Rules 2&3 of C.P.C.

37
The respondent submitted objections under Sec. 47 of C.P. C, claiming that he had handed
over the possession of the building to the appellants attorney but the attorney had permitted
him to continue the possession of the building.

The Court passed judgement against the appellant and declared the decree as un executable.
The appellant went on appeal. The main issue in the appeal was the conflict between Order 21
(Rule 2 & 3) of CPC and Sec. 47 of CPC. Order 21 of the C.P. C lays down the duty and
procedures of the court in executing decrees. Sec 47 of C.P. C is a specific provision which
lays down the powers of a court while executing decree Sec: 47 of C.P.C, an executing Court
has power to decide questions relating to execution, discharge and satisfaction of the decree.

Accordingly, the Court declared the decree as unexecutable: This was challenged by the
appellant as conflicting with the duty of the executing court under Order 21. The Court
applied the rule of harmonious construction and held that there is no anti thesis between under
Order 21 and Sec 47 CPC. The former is a general provision and the latter is a special
provision relating to execution of decrees. In order to perform its duty of executing decrees
under Order 21 the court has to exercise certain powers conferred under section 47 of CPC.

 Gulzari lal Agarwal vs. Accounts Officer TELECOM (1996)10 SCC 590)

Appellant filed a consumer case against the TELECOM dept (respondent) before the District
consumer forum alleging excess phone bill of Rs.13,896/- which the dispute was pending
before the forum, the respondent disconnected the telephone connection. The Forum directed
the appellant lo deposit Rs. 4000/- before the TELECOM dept and instructed the TELECOM
dept to give reconnection. The TELECOM dept did not reconnect. On severe directions from
the Forum; it reconnected but filed an appeal before the State Commission.

The State Commission passed judgment against Telecom department. The Telecom
department filed an appeal before the National Commission on the ground that the order of
the State Commission was void because it was passed by 2 members in the absence of the
President. (At the time of the appeal the president of the Commission had retired and the
vacancy was not filed up. Hence the order was passed by 2 members only] - The TELECOM
dept argued that under sections 14 and 18 of Consumer Protection Act; the proceedings shall
be conducted by the President and at least one member sitting together. Sec 14 (2A) further
says that the order of the Commission shall be signed by the President and the member
/members who conducted the proceeding. Accepting the arguments of the TELECOM, the

38
National Commission passed order in favour of TELECOM, declaring the State Commission
Order as void. The opposite party appealed to Supreme Court.

It was contended that, the Order of the State commission under the Consumer Protection Act.
Sec. 29 of the Act gives power to Consumer Courts to remove difficulties. Sec: 29A
specifically states that vacancies or defects in appointment of members shall not invalidate the
orders of the Consumer Courts. Thus, the Supreme Court had to deal with conflict between
Secs. 14,18 and 29-A of the Act: Applying the principle of harmonious construction, the
Court held that even though at a plain reading, the sections may appear to conflict each other
if we understand the object of the Consumer Protection Act; then it is quite clear that it could
never be the intention of the Legislature to make a Consumes Court non-functional in the
absence of the President. The object of the Act is to promote the cause of consumers. Thus,
the order of a consumer court cannot be invalidated on the ground of vacancy in the post of
president due to valid or unavoidable reasons. Moreover Sec. 2(jj) of the Act says that
Member includes President and a member of the National Commission, State Commission or
District commissions.

Reading these sections, we can understand together and by keeping in mind the object of the
Consumer Protection Act; the Court harmoniously solved the conflict between sections 14, 18
and 29 A of the Act.

 Sanjeevaiah vs Election Tribunal (1967 SC 1211)

Appellant was elected from an Andhra Pradesh Legislative Constituency in general elections.

The respondent: who was another candidate in the same election filed an election petition to
declare the election of the appellant as void and to declare himself (respondent) as duly
elected. While the election petition was pending the appellant became union Labour Minister
and later a Rajya Sabha MP. So, he resigned his seat in A.P. Legislative Assembly and filed a
writ before the High Court to compel the Election Commission to hold a bye-election in that
Constituency and to stay the proceedings before the Election Tribunal(Sec 150 of the
Representation of People Act 1951 (RP Act) imposes a duty on Election Commission to hold
by- elections if the seat of an elected member becomes vacant) It was based on this section
150, that the appellant requested to stay the election petition and conduct fresh elections in the
constituency. It is to be noted that (Secs 84 and 98 of the RPA Act contained a contradictory
provision, that a petitioner in an election petitioner can in addition to praying that the election
be declared invalid; ask to declare himself as elected.)

39
The High Court, and on appeal the Supreme Court; applied the rule of harmonious
construction and dismissed the case of the appellant. Court held that if the interpretation of the
appellant is accepted, then the vacancy of a members must be filled up by a bye election even
if there is an election petition against him. This will lead to an absurd situation-that is it will
lead to possibility of 2 elected members for one seat (One member elected in bye-election and
one member declared elected by the Election Tribunal). Such an impossible situation would
never be intended by the legislature. Hence, Sec. 150 is not applicable when there is an
election petition pending against the appellant.

 The concept of harmonious construction; in case of conflict between provisions of

different statutes can be explained with the help of the following 3 cases:

 Sareeta vs: Venkata Subbaiah (AIR 1963AP356) In this case, husband filed a suit
against the wife under Sec 9 of Hindu Marrage Act (Restitution of Conjugal right).
The wife contended that section 9 is violative of Art. 21 of the Constitution as it
compels a women to live with a man against her will. The A.P High court accepted
her contention and declared Sec 9 of Hindu Marriage Act as unconstilutional.

The Court held that sec. 9 is a savage and barbarous remedy violating the right to privacy and
human dignity guaranteed under Article.21 of the Constitution.

 Harinder Kaur vs. Harminder Singh (AIR 1984 Del 66)

The Delhi High Court held that Sec 9 Hindu Marriage Act is not violative of Art. 21 of the
Constitution.

 Saroj Rani vs. Sudarsan Kumar (AIR 1984 SC 1562)

The Supreme Court harmoniously interpreted Sec. 9 of Hindu Marriage Act and Art 21 of the
constitution and held that the former does not violate or contradict the latter. The Supreme
court overruled the decision in Sareeta vs: Venkata Subbaiah case and held that the decision
in Sareeta case was purely given from the view point of women. The object of Restitution
decree is to bring about cohabitation between stranged parties, so that they can live together in
the matrimonial home in amity. Introduction of cold principles of constitutional law into the
sensitive sphere of family life will have the effect of weakening the marriage bond and
relationships. Hence, section 9 of Hindu Marriage Act is not violative of Articles 14 or 21 of
the constitution. (This case can be cited as presumption of Constitutionality too)

40
 Smt Soumithre Vishnu vs: UOI and anr (1985) AIR SC I618.

Sec 497 of IPC defines the offence of Adultery. According to this Section, if a person has
sexual inter course (not rape) with a married woman. without the consent of her husband,
shall be guilty of the offence of adultery. Sec. 497 clearly says that the wife shall not be
punishable as an abettor.

In this case, the appellant quarrelled with her husband and left her matrimonial home to live
with one person called Ebenezer. Her husband filed a criminal case against Ebenezer under
Sec. 497 of IPC. The appellant challenged constitutional validity ef Sec.497 IPC and held that
it is violative of Arts. 14 and 15 of the Constitution. Because:

(a) It confers right upon the husband to prosecute the adulterer, but doesn’t give right to
the wife to prosecute the woman with whom husband has committed adultery .
(b) It does not confer right on wife to prosecute the husband who has committed adultery
with another woman.
(c) Sec. 497 does not cover cases where a married man has relationship with an unmarried
woman.

In short, Sec. 497 permits a married man to prosecute another man [whether married or unmarried]
who commit adultery with his wife. But Sec. 497 doesn’t permit a married woman to prosecute
another woman (whether married/unmarried) who commits adultery with her husband. Thus Sec 497
of IPC shows gender discrimination and male chauvinism and is based on an assumption that like
chattels, women are the property of men. Hence, it is violative of Art. 14 and 15 of the Constitution
(right to equality).

Supreme Court appreciated the arguments of the appellant, but that is not violative of Art 14
and 15 of the Constitution. In fact, it protects a woman who is also a partner in adultery. The
framers of the IPC had kept in mind the socio- economic structure and family- institutions of
Indian Society while drafting Sec 497. In Indian society: when a wife enters into an illicit
relations with another man, it amounts to civil death to the husband. Hence, this special right
is given to the husband. Moreover it imposes penal liability on a man who interferes with the
family life of another man through adultery It is based on the assumption that it is man who
seduces woman and not vice-versa. Thus, the object of Sec 497 is to maintain stability of
marriages and family institutions, and does not conflict with Arts 14 and 15 of the
Constitution. The Supreme Court harmoniously reconciled Sec. 497 of IPC with Arts: 14 and
15 of Constitution. (This case can be cited for the topic- Presumption of constitutionality too).

41
 Sri: Venkataramana Devaru vs. State of Mysore (AIR 1958 SC 255)

In this leading case, Supreme Court harmoniously construed Arts 25(2)(b) and 26 of the
Constitution. Art. 25(2)(b) empowers State to throw open Hindu religious institutions to all
classes of Hindus. Art 26 grants freedom to religious denominations to manage their own
religious affairs. In this case; appellants were Gowda Saraswath Brahmins, a relegious
denomination of Hindus; having their own distinct culture, customs and temples.

Madras state enacted Madras Temple Entry Act, 1947 there by opening all Hindu temples
open to any class of Hindus. This was challenged by the appellants as violative of Art. 26 of
the Constitution. Court held that if the contention of the appellants is accepted; then Art
25(2)(b) would become useless and nugatory. The Court was therefore confronted with a
conflict between two Articles of equal authority.

Applying harmonious rule of construction, Court held that both Articles can co-exist if Art•
26 is read subject to Art. 25(2)(b). In other words, the appellants are entirely free to manage
their religious affairs and preserve their distinct customs and culture even though their
temples are made open to other Hindu communities.

42
 CHAPTER 3

SUBSIDIARY RULES OF INTERPRETATION

There are various subsidiary rules of interpretation. These rules are used by a Judge only
when there is ambiguity (confusion) in the language or words used in the statute. That is if the
words of a statute lead SP les or more meanings then use the Courts -these subsidiary rules in
order to find out the real meaning of the words. That is to ascertain the true intention of the
legislature.

The following are. subsidiary rules of interpretation:

i. Noscitur a sociis
ii. Ejusdem generis
iii. Reddendo Singula Singuli
iv. Expression Unius est Exclusio Alterius
v. Generalia specialibus non derogant
vi. Casus Omissus
vii. Rule of Bona partem
viii. Ut Res Magis Valeum Qua Pareat
ix. Contemporanea expositio est optima est fortissimo in lege
x. Reading down a Provision
xi. Loquitor ut vulgus
xii. De minimus non curat lex
xiii. Words of rank
xiv. Same word same meaning, Same word different meaning
xv. Use of technical words
xvi. Rule of Redundancy
xvii. Equitable construction
xviii. Singular, Plural, Gender
xix. Rule of Last Antecedent
xx. Void for Vagueness rule.

43
 Let us discuss these in detail:

[i] NOSCITUR A SOCIIS –

Means known by associates . According to this rule, the true meaning of a word can be
understood from its surrounding words. Every word has two kinds of meanings actual
'Denotation meaning that is; its, dictionary meaning and * Connotation meaning; that is its
meaning according to its context or in the light of its surroundings .The rule of noscitur-a-
sociis is concerned with the connotation meaning of a word. Just as the character of a person
can be understood or estimated from the characters of his accompanying friends or associates;
the true meaning of a word in a statute can be understood from the words in its vicinity Thus,
words like chameleons changes its colors according to its surroundings.

 Pengelly vs Bell Punch Co: Hd (1964 1 WLR 1055)

Under Sec. 28 of Factories Act, 1961, ‘Floors, steps, stairs and passages and gang ways" are
to be kept free from obstruction. The question was whether 'floors' would include that part of
factory floor used for storage purpose. Applying the rule of noscitur a sociis, Court held that
the word 'floor' derives its true meaning from its associated words- 'steps', ’stairs', 'passages'
and gangways" These four places are used for purpose of passage. Therefore, the term 'floor'
does not include that part of the factory floor which is used for storage-purpose.

 R vs. Harris (1836 ) 7 C&P 446

Under Offences against Persons Act, 1837; it was a felony to "stab, cut or wound" any person.
Applying the rule of noscitur a socIis; Court held that the team "wound" includes only the
serious injuries inflicted by means of any weapon or instrument. Does not include wound
inflicted by biting, egs: - Biting off a finger or nose or burning a face won't come under this
Section.

 State of Rajasthan vs Sripal Jain (AIR 1963 5 (1323)

According to a Rule in Rajasthan Business rules: permission of governor is required for

dismissing, removing or compulsorily retiring an officer. Applying the rule of noscitur a
sociis; Court held that the team 'compulsory retirement’ means only that compulsory
retirement; which is imposed in the nature of 'punishment’. Does not include that compulsory
retirement which is imposed on reaching the prescribed age or to remove surplus staff.

44
 Commissioners vs. Savoy Hotel (1966) 2 AlR 299

Under Purchase tax Act, tax could be imposed on 'manufactured beverages including fruit -
juice and bottled waters and syrups, etc. Court held that, by applying the rule of noscittur a
sociis , " "fruit juice does not include freshly pressed, unsweetened orange juice.

 State of Karnataka vs. UOI (AIR 1978 SC 68)

Art. 194(3) of Constitution grants, certain "powers", privileges and immunities to members of
legislature. Eg:- Freedom of speech , freedom to prohibit publication, punish for contempt,
etc. It was held by applying rule of noscitur a sociis: that the term ‘powers’ include not only
legislative power but also other powers necessary for smooth conduct of the business of the
Legislative assembly.

 Dr. Devendra M. Surti vs. State of Gujarat (AIR 1969 5 (63)

Bombay Shops Act, 1948 defines 'commercial establishment' as an establishment which

carries on any business, trade or profession. Applying the rule of noscitur a sociis; Court held
that profession does not include private practice of a doctor. Hence a private dispensary of a
doctor cannot be treated as a commercial establishment.

 Pradeep Agarbatti vs State of Punjab (AIR 1998 171

Under a schedule of Punjab Sales Tax Act, 1948;'Cosmetics, perfumery and toilet goods
merely were taxable but tooth paste, tooth powder, kumkum and soap were excluded.

Applying the rule of noscitur a sociis, Court held that 'perfumery' includes only those items
which are used as cosmetics and toilet goods. Hence, dhoop, agarbatti cannot be treated as
perfumery.

 State of Assam vs. Ranga Muhammed (AIR 19675(903)

Art 233 of Constitution says about appointment of judges that it shall be made by the
Governor in consultation with High Court. Court held applying that, the term posting the rule
of noscitur a sociis, does not include transfer.

 Bangalore Water, Supply Board vs. Rajappa 1918 Lab I. C (SC) 467)

It was held that the rule of noscitur a sociis is not applicable in cases where the word has been
deliberately given a wider meaning by the Legislature. In such situations, the meaning of the

45
word should not be restricted by the surrounding words. In this case, Sec 2(j) of Industrial
Disputes Act, 1947 Industry as Follows, ‘Industry means any business, trade, undertaking,
manufacture or calling of employers and includes any calling, service , employment
handicrafts occupation or vocation of workmen”. The court held that in this case, , the word ‘
undertaking ‘cannot be limited by its associated words, ‘ business and trade etc. Therefore,
hospitals, would come within the meaning of undertaking and can be treated as ‘industry’.

[ii] EJUSDEM GENERIS (LORD TENTERDEN'S RULE)-

Literally means 'of the same kind’ When particular specific words are followed by general
words, then the true meaning and scope of the general words can be understood from the
particular specific words behind it. In other words: if particular words are followed by general
words; then the meaning and scope of the general words are to be restricted to the same genus
of the particular words Ejusdem generis is a narrower version of Noscitur a sociis. In other
words; Noscitur asocis is a wider form of Ejusdem generis.

EXAMPLES:

(a) A teacher asks the student point out the animal, which does not come under the class
of other animals:
(i) Cow; (ii) goat, (iii) horse; (iv) dog.

In this example, cow, goat and horse eat gross and pure vegetarians. Dog does not eat gross,
but eats non-vegetarian. Hence the students should tick (iv) to the above question. In this
example, cow, goat and horse belong to the same nature, i.e. ejusdem generis, and dog as a
separate kind.

A-a father gives some money to his son-B and says him to go to market and buy rice, dal,
sugar, vegetables and 'anything' needed for the home. This phrase 'anything' is restricted
within the meaning of A that it must be useful to home that too particularly for the food for
the members of the family. If the son-B purchases a tape-recorder or mixer-grinder assuming
himself that a tape-recorder or mixer-grinder is also included in 'anything', it becomes a
wrong interpretation of the instructions of A. 'Anything' must be of the 'same kind' such as
rice, dal, sugar, vegetables, soaps, etc. This is called the rule of Ejusdem generis'

'Anything' must be of the same kind which testator or legislature intends. The thing must not
be deviated from the intention of the sayer, testator or legislature.

46
 (b) Section 1 of the Sunday Observance Act, 1677 (England) provides that 'no
tradesman, artificer, workman, labourer or other person whatsoever shall do or
exercise any worldly labour, business, or work of their ordinary callings upon the
Lord's Day works of necessity and charity only excepted’. The phrase 'or other
person whatsoever' in the section is to be construed ejusdem generis with those
which precede them so that an estate agent is not within the meaning of section.

The following are the conditions for the application of Ejusdem generis:

(a) There must be an enumeration by specific words.

(b) These specific words must be of a particular class or genus
(c) These specific words should not be exhaustive.
(d) They should be followed by general words.

If these conditions are satisfied, then the general words should be considered as of the same
species as of the specific words. In short, the specific words are the genus and the general
words following it are of the same species.

It is to be noted that the rule of ejusdem generis is not applicable; there the legislature has
deliberately given a wide meaning lo the general words or where the Specific words are not of
the same genus or class or where general words are followed by specific words.

 Ratanshi Hirij vs Emperor (1937 B, 274)

Under Bombay Municipal Act, license is required for sale of milk, butter or other milk
products. Applying the rule of ejusdem generis, Court held that ‘other milk products’ would
mean milk products which are subject to speedy decay like curd, cream, whey. Hence, ‘ghee’
is not covered under this term.

 Kair betta Estate vs Rajamanikkam (1960 II LLJ276SC)

Sec. 2(kkk) of Industrial disputes Act, 1947 defines LAY-OFF as “failure, refusal or inability
of employer to give employment to workman due to shortage of coal, power or raw materials,
accumulation of stocks, breakdown of machinery or for any other ‘reason’. Court applied
ejusdem generis rule and held that the words “for any other reason, must be a ‘reason’
analogous to the preceding specific words. Hence 'lock-out' cannot be treated as a reason by
the employer for failure, refusal or inability to give work.

47
 Poulose vs. Asst. Labour officer (1975 KLT 281)

Under Kerala Industrial establishment Act, 1958, Industral establishment was defined as ‘any
establishment, industrial, commercial or otherwise. Applying the rule of ejusdem generis;
Court held that construction work for Idukki Hydro Electric project would not come under the
expression 'or otherwise’. And hence cannot be treated as an industrial establishment.

 David Tharakan Vs: Dr. Lily Jacob (AIR1993 KER 9)

Under Sec. 70 of Indian Succession Act, 1925; a will can be revoked by burning, tearing or
otherwise destroying it by the testator or by some person in his presence and under his
direction.

Applying the rule of ejusdem generis; Court held that the term 'otherwise destroying would
not include striking off the signatures and writing 'cancelled' over it.

 Clark vs. Gaskarth cited in Maxwel interpretation of Statutes (Pages-301-302)

Under the Distress for Rent Act, 1737; rent could be collected from land on which corn, grass,
hops, roots, pulses and other products are grown. Applying the rule of ejusdem generis; Court
held that the term ‘other products’ would include only those plants which can be easily cut,
gathered and removed. Hence, trees and shrubs grown in nursery are not covered.

 Siddheswari Cotton Mills vs. UOI (AIR1989 SC1019)

Under Central Excise Act; the term ‘manufacture was held to include "bleaching, mercerising,
dyeing, printing, water-proofing, rubberizing, shrink proofing, organdie processing or any
others process: The question was whether calendaring (pressing in order to smoothen, glaze or
make thin) would amount to manufacture.

Court held that the words 'or any other process' should be understood "ejusdem generis” with
its preceding words and it means any process which would give a lasting character to the
product.

 G. Claridge & Co: Hd vs: Collector of Central Excise (1991) 2 SCC(229)

Under Central Excise Act ; "boxes, cartons, bags and other packing” are exempted from tax.
The question was whether moulded pulp egg trays could be considered as a packing container.
Court held that; in a wider sense it can be considered so. But in a narrow sense, Packing

48
containers include only those containers which are enclosed or covered. Applying the rule of
ejusdem generis; court felt that egg trays cannot be considered as packing Containers.

In the following cases; the rule of Ejusdem generis was not applied:

 Calcutta Municipal Corpn vs East India Hotels company limited. (1994) 5SCC 690

Under Calcutta Municipal Act, 1951, licence fee should be paid by "theatres, cinema house,
circus, dancing hall or other similar place” of public resort, recreation or amusement.

The question was whether Oberoi Grand- a 5-star hotel could be brought under the purview of
"other similar place". (If the rule of ejusdem generis is applied; a hotel cannot be brought
under the same class of theatre ,circus, cinema or dancing hall). But; the Court held that there
is no need to apply Ejusdem generis in this case.

Oberoi Grand had 3 restaurants with music and dance-floors. Hence, it can be clearly treated
as a similar place without taking the aid of the rule.

 Electricity Board, Rajasthan vs: Mohanlal (AIR 1967 SC (1857)

Art 12 of the Constitution defines ‘State’, It specifically says that State includes executive
governments of Union and State Legislatures of Union and State and all local and other
authorities within the territory of India.

In this case: the Court held that Electricity Board can be treated as 'State' under "other
authorities”: The Court did not apply Ejusdem generis rule in this case, holding that there is
no common genus running through the specifically named bodies. Each of the specifically
named bodies are of distinct and separate classes. Hence; ejusdem generis rule cannot be
applied in this case.

 Jiyaji Rao Cotton Mills Ad Vs. M. P. Electraly Board (AIR1989 SC(788)

Under Electricity Supply Act ,1948; Electricity Board has power to fix different electricity
rates based on geographical area, nature of supply, purpose of supply and other relevant
factors.

In this Case, the Supreme Court held that the rule of ejusdem generis cannot be applied
because the specific words are not of a common genus.

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 Lokmat Newspapers (P) Hd vs. Shankar Prasad (1999) 6 SCC270.

The respondent; a foreman in Lokmat Newspapers was terminated from service. The question
was whether this amounts to unfair labour practice on the part of management. Under the
schedule of Maharashtra Trade Unions Act, 1971 ; the word 'discharge’ was followed by the
word dismissal. The question was whether the word discharge should be understood ‘ejusdem
generis' with the word 'Dismissal’. The Court held NO, the rule of ejusdem generis does not
apply where general words are followed by specific words. Here discharge is a general and
wider term and includes termination orders of simple non- penal nature as well as penalty
nature. Whereas ‘dismissal' implies termination order of extremely penal nature only. Both
are of different classes and cover different situations and circumstances.

[iii] REDDENDO SINGULA SINGULIS

Literally means 'giving each to each. Or ‘applying each word to its matching word’. Statutes
consist of sentences. The words in these sentences should be connected logically; in order to
ascertains the legislative intent.

Wharton's Law lexicon gives an illustration: “ if any one shall draw or load any sword or
gun…..”Here the word 'draw' applies to sword and ' load' applies to gun!"

Art 304 of the Constitution says "no bill or amendment shall be introduced or moved in the
state legislature without the previous sanction of the President."

In Koteswar Vittal Kamath vs K Bangarappa Baliga & Co: (AIR 1969 SC 504); it was held
that the word ‘introduced' refers to 'bill’ and the word ‘moved' refers to amendment.

The sentence in a will, “I devise and bequeath all my real and personal property to X”, will be
construed Reddendo singula singulis by applying 'devise' to 'real' property and 'bequeath' to
'personal' property.

Sec.60(1) of the C.P.C enumerates properties which cannot be attached in execution

proceedings such as "necessary wearing apparel, cooking vessels, bedding, tools of artisans ..,
wages, salaries, pension's, ornaments of religious usage, houses of agriculturists, etc. Here the
word 'necessary' is applicable only to wearing apparel, cooking vessels, bedding and tools of
artisans.

Thus, according to Reddendo Singula singulis rule, where a sentence contains several
antecedents and several consequents they are to be read distributive; that is the antecedent

50
words should be applied to those consequent words to which the most properly relate or
match.

[iv] EXPRESSIO UNIUS EST EXCLUSIO ALTERIUS Also referred to as

EXPRESSUM FACIT CESSARY TACITUM

Means: "The express mention of one thing implies the exclusion of others".

In other words; when the words of a Statute expressly mentions or states something; it means
that whatever is NOT mentioned or NOT stated is excluded.

Eg #' X' has lands in Calicut, Kochi and Wayanad. He agrees to sell his land in Calicut to Y "
there; the express mentioning of the land in Calicut in the sale deed impliedly but clearly
excludes the lands in Kochi and Wayanad, from sale.

# Sec. 164 CPC says that confession should be recorded by Judicial Magistrates or
Metropolitan. Magistrates. Thus, Executive Magistrates are clearly excluded.

# Secs. 91 to 100 of Indian Evidence Act says that wherever documentary evidence is
available to prove a fact; oral evidence should not be produced. This is known as exclusion of
oral evidence by documentary evidence.

# The Indian Contract Act lays down expressly the conditions for capacity to contract...
namely the parties should be major, sound mind and not disqualified from contracting under
any law. Here, the express mention of these conditions impliedly but clearly excludes minors,
lunatics and other disqualified persons from contracting.

 Bennet Coleman vs. UOI (AIR 1973 SC106)

The Constitution of India expressly says that fundamental rights under Arts 15,16 and 19 are
available only to citizens of India. Supreme Court held that therefore non-citizens and
artificial legal persons are impliedly but clearly excluded from claiming these rights.
However, Indian citizens can claim these rights through their artificial legal persons: because
ultimately the relief goes to citizens.

 B. Shankara Rao vs State of mysore (1969)3 SC RI

It was held that Expressio unius- principle is' a principle of logic and common sense; and not
merely a technical rule of interpretation.

51
 Shree Durga distributors vs. State of Karnataka (2007)4 SCC 476

Karnataka VAT Act, 2003 exempted "animal feed and feed supplements, namely processed
commodity sold as poultry feed, cattle feed, pig-feed, fish feed, frown-feed and shrimp-feed"
from tax. Applying the rule of Expresso unius est exclusio alterius: Court held that the section
is express and exhaustive. Hence, not applicable to dog-feed and cat-feed. However; it it's to
be kept in mind that Expressio unius. " is not an obligatory rule of interpretation . It cannot be
used to defeat the intention of the legislature

 Colquhoun vs Brooks (1988) 21 QBDS2,

It was held that “expressio unius est exclusio alterius" is a valuable servant but a dangerous
master. This point can be explained with the help of following cases:

 Chandra Kishore Tha vs. Mahavir Prasad & others (1999) 8 SCC 266

Under Representation of People's Act, 1951; the time limit for filing election petition is 45
days. The appellant, tried to file the petition to the Bench clerk of the Court at 4.05 pm on the
last day (Closing time of Court was 4:15 pm). But, due to an obituary function in the Court, it
was closed at 3.15 pm itself and none of the judges were present after 3.15 pm. Hence, it was
filed the next day, the petition was dismissed as time-barred; The appellant challenged this
dismissal order. The Supreme Court gave judgement in favour of the appellant, Supreme
Court held, "Expressio unuis est exclusio alterius" means. If a statute provides for a thing to
be done in a particular manner; then it has to be done in that manner and in no other manner-:
(Here: the Act expressly lays down time-limit of 45 days]. But, at the same time
"Impossibiliuni nulia obligation est” (There is no obligation to do Impossible things) to be
considered.

In case; the appellant tried to file the petition within the time- limit itself but was prevented
from doing so for no fault of his own. Hence, the dismissal of his petition is invalid.

 Mary Angel vs. State of Tamil Nadu (1999) 5 SCC 209

Secs. 148, 342, 359 and 357, 358 and 227 of CrPC expressly gives power to High Court to
grant compensation in relevant cases. But, the High court granted compensation under another
Section; namely Sec 482 CrPC. says about Inherent powers of a Court. These powers are to
be exercised in situations which are not expressly specified in the CrPc. In other words; an
unexpected situation arises for which no express remedy is provided in the Crpc, then the
Court can use its discretionary powers to deal with the situation.

52
The petitioner challenged the compensation order of the High Court passed under this Sec.
482 CrPc. He contended that when there are other express sections to grant compensation
under CrPc then it implies that the court has no power to grant compensation under any other
Section: including Sec. 482 Crpc. But, The Court refused to apply the rule of Expressio unuis
est exclusion alterius' in this case. Court held that Sec. 482 us a wide and independent section.
and Court can use it's inherent powers to grant compensation under this section. Otherwise it
may lead to failure of justice. So, Sec 482 cannot be restricted by other express sections like
148, 342, 357-359 and the like.

[iv] GENERALIA SPECIALIBUS NON DEROGANT

This rule of interpretation is applicable when there are two statutes touching on a same
subject- matter. When there is a special law and a general law dealing with the same subject,
the special law should be given more importance. In other words: when a special law on a
particular subject matter is followed by a general law on the same-subject matter: then we
cannot safely imply that the general law has derogated (repealed, altered or invalidated) the
earlier special law. But, if the general law expressly states that the earlier special law is
derogated then the general law will be given effect to. In a single sentence; a general law
cannot abrogate (override, repeal, modify, invalidate] a special law on the same subject
indirectly.

R S.Raghunath vs State of Karnataka ( 1992) SCC 335 where a special law is already in
force, a later general law's application is excluded to the extent; the field is occupied by the
special law. This rule is an exception to the legal maxim: “Leges posteriores priores
contrarias abrogant" [Later laws repeal earlier laws inconsistent there with].

 Gobind Sugar mills Hd vs St of Bihar (1999) SCC 76

Bihar Finance Act, 1981 imposed purchase tax on sugarcane used in sugar-manufacture.
Bihar Sugarcane (Regulation of Supply and Purchase) Act, 1981 also imposed purchase tax
on sugarcane. The appellants challenged it. Supreme Court applied the rule of 'Generalia
specialibus non derogant' and gave judgement in favour of appellants.

Held - Bihar Finance Act, is a general statute ; Bihar Sugarcane Act is a special statute. Tax
can be imposed only under the Bihar Sugarcane Act. Otherwise; it will lead to double-
taxation.

53
 Chariman, Thiruvallor Transport Coupon vs Consumer Protection Council ( AIR1995
SC 1384 )

Issue was whether a Consumer court had jurisdiction to try applications for compensation
arising out of motor accidents. Consumer Protection Act, 1986 is a general Act giving
protection to consumers in general Motor Vehicles Act, 1988 is a special Act dealing with
payment of compensation in motor-accident cases applying the rule og ‘generalia specialibus
non derrogant’ court held that consumer court have no jurisdiction to entertain cases regarding
compensation in motor accident cases.

 Damji veji Shah v. LIC (AIR 1993 Mad 152)

When a General statute is followed by a special statute on the similar subject: the special
statute cannot impliedly repeal the previous general statute. But, if there is any inconsistency
between them, then the special statute will prevail.

In this case, the companies Act dealt with companies in general. LIC Act, containes special
provision which says that no civil court shall have jurisdiction to decide LIC disputes. It was
held that, the LIC Act being a special Act will apply in case of LIC disputes.

 Corporation Of Madras v. Electric Tramways (AIR1931 Mad 152)

The appellant (Corporation of Madras) argued that the respondent was bound to apply annual
leave for licence under Municipal Act; a general Act. The corporation had power to grant,
refuse or cancel licence. The respondents argued that they had already got licence under
electricity Act, which is a special Act. The court gave judgement in favour of respondents.
Court held that the municipal Act was general Act and Electricity Act, a special Act. The
legislature could have never intended that a licence granted under special Act be cancelled
under a general Act. Hence, in this case, the licence taken by the respondent under the
Electricity Act is sufficient.

 N.F . Sali vs State of Karnataka ( 1993 ) sup 2 SCC 399

Karnataka government framed special rules known as Karnataka, Civil services (Special
Recruitment of SCST Candidates) Rules, 1985, under these rules, oral tests could be
concluded for SCST's. Unsuccessful candidates challenged these rules as violation of
Karnataka State Civil Service (Direct Recruitment rules), 1973; which were general rules. In
this case; the court held that when, there is conflict between a general and special statute on a

54
similar matter, the special statute should prevail over the general statute. But; if the general
statute contains non-obstante. clause; then it will prevail over the special statute. In this case;
the 1973 rules contained non-obstante clause, which helped it to override other laws touching
similar subject. Thus, if the language of the general Act expressly, clearly and unconditionally
overrides special- Acts then the general Act; must be given importance.

 Maharashtra Tubes Ltd vs. State Industrial & Investment Corpn (1993)3 SCC 144

‘Generalia specialibus…..’ rule will not apply where both Acts-are special in nature, dealing
with similar subject matter; but under different situations.

In this case, Court held that the State Financial Act, 1951 aims to provide financial assistance
to industries to boost industrialization. Sick Industrial Companies Act: 1985 aims to revive
and rehabilitate sick industries if necessary by financial assistance along with other measures.
Both were held to be special Acts dealing with different situations. Further, both contained
non obstinate clauses.

* Municipal council, Pala. vs Joseph (AIR1963SC1561)

Travancore Cochin Motor Vehicles Act passed in 1125 M.E. was a general Act.

Travancore District Municipalities Act passed in 1116 M.E was a special Act. TCMV Act
was intended to apply to a wider area than the TDM Act.

Court, held that the TCMV Act cannot be held to repeal or replace the provisions of TDM
Act. Court: held that TC MV Act should be considered as a continuation of TWM Act
because the intention of the legislature appears that both acts should co-exist.

The question whether a general statute intends to override a special statute, expressly or
impliedly; has to be decided according to facts and circumstances of the case. when there is
conflict between two Special statutes; which cannot be reconciled then the Court should not
treat that the earlier statute is impliedly repealed by the later special statute. so, a special
statute cannot override another special statute without express words.

 CONFLICT BETWEEN GENERAL & SPECIAL PROVISIONS OF SAME

STATUTE-

Rule of ‘Generalia specialibus non-derogant' is applicable even in case of conflict between

general and special provisions of same statute. Thus; in such situations; the special provisions
shall prevail.

55
 T. Venkata vs. T. Ramachandra Rao (AIR 1972 AP 223)

Under Sec 47 of CPC civil courts have general power to decide disputes relating to Execution,
discharge and satisfaction of decree: between the parties. Under Order 21, Rule90; Civil
Courts have special power to set-aside execution sale. In case of fraud, irregularities in the
execution sale, it was held that, Order 21 rule 90 will apply in disputes relating to execution -
sale, as it is a special provision.

 K. Vidyanand vs. Eramnia ( AIR 1961 AP 94 )

Sec. 342 of CrPC contains general provisions related to examination of accused. It was held
that sec. 342 does not apply to summons cases; because there are special provisions under
CrPC for trial of summons cases (Ss. 242 and 245 ).

 Charudeka vs Umeswari Nath ( AIR 1995 Gauhatia)

Conflict between two sub-sections (1) & (2) of Sec. 115 CPC .Sub-section (2) was added by a
later amendment. Court held that: as far as possible the conflicting sub-sections must be
interpreted harmoniously, so as to give effect to both. "But, if it is not possible to do so, then
the doctrine of leges posteriores priores contrarias abrogant [later laws abrogate prior laws
which are contrary] shall apply. So; sub-section (2) of Sec. 115 shall over sub-section (1) of
sec. 115.

[vi] CASUS OMISSUS

Literally means an omitted case or matter. A matter or point missed out, omitted or not
provided for in a statute should be held to be intentionally omitted by the Legislature Such
gaps and omissions should not be guessed and filled up by the Courts unless there is strong
necessity. Courts cannot do legislation under disguise of interpretation.

 Hansraj Gupta vs Dehradun Mussorie Electric Tram Way Co. Ltd (AIR1933 PC 63).
Casus Omissus is a matter which should have been provided in the statute but has not
been provided by the legislature. Such omission may be deliberate or by inadvertence
(negligence) of the legislature or draftsman. As a general rule, such gaps in the statute
cannot be filled up by judges as doing so would amount to trespassing into the area of the
legislature. In other words, courts are supposed to interpret the law, not to make the law.

Making of law is the right of the Legislature. Such omitted matters in a statute should be
remedied and filled up by the legislature itself by making amendments in the statute.

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 Punjab Land Devpt Corp Ltd vs Presiding officer (1990)3 SCC682

But in cases of string necessity and very obvious mistakes, the courts can fill up and correct '
‘casus omissus' by supplying appropriate words. But while, doing so, the court should keep in
mind the subject, object and context of the statute- Surjit Singh Kalra vs. UOI (1991) 2SCC
87). In short; the Court while the filling up Casus omissus should try to find out the real
intention of the legislature.

In ancient Indian texts; Casus omissus was elaborated in depth in ‘Jaiminis Mimamsa" In
Mimamsa,, Casus omissus is known as 'Adhyahara’, Justice. Markandeya Katju referred to
Mimamsa principles of interpretation in Mahabir Phasad Drivedi vs. St of U.P (AIR1992. All
351)

 SP Gupta vs. UOI (1981 Sup SCC87) –

It was held that Court cannot fill in words deliberately a omitted in a statute. It is not the duty
of the judge to fill up gaps in the statute according to his ideology.As for as possible, the
words in the statute should be given their natural meaning and interpreted in their ordinary
and popular sense. Defects, if any should be remedied by the legislature Judges should not as
a general rule; import new words into the statute.

 Parkinson vs Plumpton (1954) All ( R 201)

Catering wages Act, 1943 laid down rules regarding providing minimum wages for

a) workers having both full boarding and lodging AND

b) workers not having both boarding and lodging

The plaintiff had full boarding only and not lodging. So; she was not given minimum wages
as she could not be brought under both categories. The Court dismissed her suit holding that
this is a clear case of casus omissus.

The legislature has omitted to provide remedy for persons who have only one of the facilities-
either boarding or lodging. Both categories under the Act cannot be stretched so as to include
the plaintiff's situation . Chief Justice , Lord Goddard said: "There is a casus omissus. I
cannot rewrite the legislation: I must enter judgement for the defendant."

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 P.K. Unni vs. Nirmala Industries ( AIR1990 SC933 )

Order 21, Rule 89 of CPC, says that person can set aside (cancelling] an Execution sale within
30 days of the sale by paying 5% of the purchase money to the auction-purchases. Art. 127 of
the Limitation Act. 1963 also prescribed the same time-limit for applying under order 21,
Rule 89 of CPC. Later Art. 127 of Limitation Act was amended increasing the time-limit to
60 Days. But, corresponding change was not made in Order 21, Rule 21 of CPC [A casus
omissus].

The appellant contended that the new time-limit of 60 days was applicable for both filing
application for setting aside sale as well as for depositing 5 % of purchase money. But, the
Court held that,the time- limit of 60 days is applicable only for filing of application. Deposit
of money to auction-purchaser should be made within 30 days itself.

 Karnataka State vs UOI (AIR1978 SC68) - Held that while interpreting a statute; Courts
should not create a casus omissus which is not actually there.

[vii] RULE OF BONA PARTEM-

Means, the words in a statute must be constructed in a lawful, legal way. Must be taken in the
good right and proper sense.

 R vs Hulme (1870) LR5 QB377 words in a part of section of a of a statute were as

follows: "….witness shall answer every question relating to the matters aforesaid"

The object of the section was to give "immunity and protection’' to witnesses in cases of
corrupt election practices. The Enquiry Commissioners were empowered to issue certificates
to such witnesses.

The Court, applied the rule of bona partem and held that protection immunities could be given
and certificates could be issued only to those witnesses who answers the questions truthfully
and to the best of their knowledge. Immunities, protection and certificates cannot be claimed
by witnesses who gives statements which they know to be false or likely to be false.

 Glamorgan County Council vs Carter(1963)|WLR1

According to a section 12(5) in the town and Country Planning Act, 1947, the occupier of a
land should take permission from the authorities in certain circumstances. The Act also
specified an "appointed day”. If the land was ‘unoccupied' on this appointed day; then the
occupier need not take permission. Sec.I2 (5) explained the meaning of unoccupied".

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If the occupier was using the land regularly for a certain purpose before the appointed date:
the land shall be treated as 'unoccupied’ if he was not using it for that purpose on the
appointed date. In this case; applying the rule of 'bona-partem', Court held that; the benefit of
this section could be given only to occupier's who were regularly using their lands for Lawful
Purpose. As carter was using his land for unlawful purposes, before the appointed date: he
cannot get the benefit of the Section even if his land was 'unoccupied’ on the appointed date.
The Court held that words in a statute must be taken in their lawful and rightful sense.

[viii] UT RES MAGIS VALEUM QUAM PEREAT

Means- ‘May the thing have effect rather than be destroyed’; Let the words in a statute
become operative rather than a nullity (useless) "It's better to validate a thing than to
invalidate it'

According to this rule of interpretation, as far as possible, courts should give meaning to every
word of a statute; is and give effect to every word of a statute. Words in a statute should not
be rejected as superfluous and null. Every part of a statute should be given some effect. In the
words of Maxwell, when two interpretations are possible- a narrow one which fails to achieve
the purpose of the Act and a bold one which would give effect to the purpose of the Act; then
the bolder interpretation should be adopted. Words of a statute should be constructed so as to
give sensible meaning to them if possible. But, if no sensible meaning can be given to the
words and it would defeat the real object of the Act, then such words may be eliminated. Thus
,Courts should be strongly against any interpretation which would reduce the statute to a
futility (again).

According to Justice Farwell: " Unless the words of a statute were so absolutely senseless that
I could do nothing at all with them; Court should be bound to find some meaning and not
declare them void for uncertainty.- Manchester Ship Cabal Co. vs Manchester Race Course
Co(1904)2

 Avtar Singh vs St of Punjab ( AIR1965 SC666)

Appellant was convicted of theft of electricity under Sec 39 of Electricity Act, 1910. He
challenged it on the ground that the authorities had not followed the procedure prescribed
under Sec 50 of the Act. The authorities (respondents) contended that under Sec 39 of the
Electricity Act; theft of electricity is deemed to be an offence under the IPC and hence
punishment was imposed as per IPC provisions.

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But, court rejected this view and held that (such a view would make sec 50 of the Electricity
Act useless and ineffective). Theft of electricity though treated as a theft under IPC is actually
an offence under electricity Act. Therefore; procedure under Sec. 50 must be followed before
imposing punishment.

[ix] CONTEMPORANEA EXPOSITO EST OPTIMA ET FORTIGSSIMA IN LEGE-

Means a Contemporaneous expression is the best and strongest in law. (Contemporaneous

means belonging to the same time). Words in a statute must be understood in the sense that it
was understood when it was passed. Words in a statute should be interpreted in the same
sense in which it was used at the time it was enacted. This rule was propounded by Coke.

This rule is particularly useful in interpreting ancient (old) statutes. It's not applied while
interpreting modern statutes. While interpreting old statutes; high respect should be given to
the meaning given to its words by the judges of that time because they were in a better
position than present day judges to determine the intention of the legislature of that time.
Similarly, opinions of people who lived during the time the Act was passed will have more
value than the opinions of their descendants because they were better acquainted with the
circumstances under which the Act was passed.

However, if a wrong meaning had been attached to the words of a statute for many years, then
the present- day judges may invalidate the wrong meaning and give the words their true
meaning. However, the transactions that already took place under the ‘wrong meaning’ will
not be disturbed.

 R. S. Nayak vs. A.R. Antulay ( AIR 1984 SC 684 )

Sec 21 of Indian Penal Code, 1860 defines Public Servant, and gives a list of persons who can
be treated as public servants.

Applying the rule of Contemporaneo Exposito............ "the Count held that an MLA cannot be
treated as a "public servant”.

 M/s. J.K. Cotton Spinning & Weaving mills ltd vs. UOI (AIR 1988 SC191)

Supreme court held that the Contemporaneo expositio is useful in interpreting old statutes but
not in interpreting comparatively modern statutes like the Central Excese Act, 1944. In a
modern progressive society; it would be unreasonable to give the words of a statute the same

60
meaning that it had at the time when it was enacted.

Words of an old statute must be interpreted in such a way so as to cover new facts and
situations.

 Raja Ram vs. State of Bihar (AIR1964SC828)

Sec. 25 of the Indian Evidence Act, 1872. says that confessions made to police are not
admissible as evidence. In this case; the Court held that in modern age, an Excise officer can
be treated as a "Police officer within the meaning of Sec. 25. So, the Court refused to apply
the rule of Contemporanea expositio in this case.

# Whether a statute can be treated as ancient or modern, depends upon the facts and
circumstances of each case. In Raja ram case above mentioned; the Court held that the Indian
Evidence Act, 1872; was of comparatively recent origin enacted at a time when new
revolutionary ideas and scientific thoughts started coming and extending to the mind of man.

But, in Banarsi das vs. Teeku Dutta (2005) the Court held that Sec. 112 of Indian Evidence
Act, 1872 is unsuited to modern times in view of modern scientific methods for determining
paternity like DNA test, Blood group test etc. [Sec. 112 of Indian Evidence Act, 1882 lays
down a presumption that a child born during marriage or within 280 days of dissolution of
marriage shall be conclusive proof that the child is legitimate.

Similarly: in Workmen vs National & Grindlays Bank ltd. (1976) SCC 925, the Court; while
interpreting the words “working funds" in the Payment of Bonus Act, 1965: held that the
words "working funds” when used in relation to a banking company should not be interpreted
in their ordinary popular sense, by reference to a dictionary. In relation to banking companies;
these words have a history of their own which have been acquired over a long period of time.
Applying the rule of ‘Contemporanea expositio’ court held that the words "working capital"
in relation to a banking company means paid up capital, reserves and average deposits of 52
weeks of a year. Hence; it is clear that in some circumstances: the rule of " Contemporanea
expositio. "may be used to find out the meaning of uncertain and ambiguous words in modern
statutes too.

Judges must bear in mind that the rule of ‘Contemporanea exposition….’ is not a conclusive
rule to be followed compulsorily while interpreting ancient statutes For eg:- the Supreme,
court refused to apply this rule while interpreting the Telegraph Act, 1885 in “Senior Electric
Inspector Vs Lakshmi Narayana Chopra ( AIR1962 SC159).

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x] READING DOWN A PROVISION

If any words or parts of a statute is felt by the court to be invalid or unenforceable, then the
remaining parts of the statute should not be adversely affected or invalidated due to this
reason. The offending words or parts should be interpreted in such a manner so as to make it
valid, enforceable and compatible with the remaining parts of the statute and the constitution.
If this is not possible, then such offending parts alone may be struck off.

Exceptional circumstances in order to suppress the mischief and to give effect to the object
of the Act, the court may read down certain words in that Act. The object of reading down a
provision is to keep the operation of the statute within the purpose of the Act and to keep the
statute constitutionally valid. An Act should not be allowed to become futile and
unconstitutional due to the affecting the remaining parts of the statute. This rule is known as
'Reading down a provision'.

Thus, in exceptional circumstances in order to suppress mischief and give effect to the object
of the Act, the court may 'read down' certain words in that Act. ('Read down' means to bring
down the offending words and the parts of an Act in accordance with the spirit of the entire
Act and the constitution.) The object of 'reading down a provision' is to keep the operation of
the statute within the purpose of the Act and to keep the statute constitutionally valid. An Act
should not be allowed to become futile (useless) and unconstitutional due to the presence of
some uncertain, ambiguous and offending words or sentences. Such words and sentences
should be harmoniously interpreted according to the object of the Act and the constitution.

 Savita Samvedi vs Union of India (1996) 2 SCC 380

Railway Board issued a circular laying down rules for providing railway quarters to railway
employees. According to one rule a married daughter of a retiring railway official can get the
retiring official's quarters only if the:

 retiring official has no son OR

 if the married daughter is the person willing to maintain the parents and sons are not
in a position to do so.

Supreme Court held that this rule is violative of article 14 and 15 of the Constitution
(Right to equality) and shows gender discrimination. To cure this defect, court 'read
down' (interpreted) the rule in such a manner that married daughter of a retiring railway

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 official will be eligible to get the quarters if inter-alia (among other conditions), the
retiring official opts for her.

[xi] LOQUITOR UT VULGUS

Means, words in general public statutes should be given the popular and common parlance
meaning and not narrow technical meaning. Egs:-

 Land Tax Act 1797, exempted 'hospitals' from land tax. This Act was constructed as
applicable to all establishments popularly known under the designation of hospitals
and also to 'asylums' (mental hospitals) for orphans. Thus, the word 'hospital' was
widely interpreted so as to include 'asylums'.

 Under the section of the London County Council Act, 1933: permission to establish
petrol pumps should not be given if in the opinion of the local authority; it would
cause obstruction to traffic in the area. The words 'obstruction to traffic' in the area
was interpreted to mean ‘interference with traffic’ and not to deal with all the minor
obstructions on the highway.

 Motipur Zamindari Co. vs State of Bihar (AIR 1962 SC 660 ).

The question was whether 'sugarcane' was a 'green - vegetable' in order to claim exception
from sale tax. Even though, botanically it can be treated as a green vegetable, in common
parlance, it is not a green vegetable which is used for cooking or grown in a kitchen garden.
Hence, it is taxable.

 State of UP vs Kores (India) Limited (1976) 4 SCC 477).

Held that 'carbon paper' is not treated as paper in common parlance as it is not used for
writing, printing or packing. Hence, not liable to sales tax under the head of 'paper'.

xii] DE MINIMUS NON CURAT LEX

This maxim means that law does not concern itself with or care about trifles. There may be
cases in which the courts have to apply this maxim while construing a statutory provisions.
Suppose a question arises as to whether it is "theft" as defined in the Penal Code to dip a pen
in another man's ink, or an assault to cover him with a cloud of dust by riding past him.
Courts will ignore all these slight injuries or harms by applying the maxim de minimis non
curat lex. For example, a statutory provision which insists the landlord to serve a notice on his

63
tenant intimating him the exact amount of rent together with interest due from him before a
suit for eviction is filed on the ground of arrears of rent.

Suppose a landlord serves a notice intimating his tenant the arrears of rent together with
interest as Rs.1405.73. If it is subsequently found that the arrears and interest come to
Rs.1405.70 only, the court is at liberty to uphold the validity of the notice ignoring the
difference in three paise by applying the maxim de minimis. However, the court shall take
into consideration the whole object and purpose of the statute before applying this maxim.

In Delaroy Hall vs. Tadma (1969)(2)W.L.R.92

Lord Parker refused to apply the principle to a case where "the driver's blood alcohol
concentration slightly exceeded the permitted limit.

[xiii] WORDS OF RANK

According to this rule, statutes which deal with inferior things or persons should not be
extended to superior things or persons by interpretation. Where particular words are followed
by general words, such general words should not be interpreted to cover anything which is
superior to the particular words.

 Casher vs Holmes (1831) 109 ER 1263

An Act imposed duty on 'copper, brass, tin and all other metals not enumerated.' It was held
that the words 'all other metals not enumerated' will not cover precious metals like gold or
silver as these are superior to the particular metals mentioned in the section.

Under the industrial Disputes Act, section 2(s) 'workman' means a person employed in
manual, unskilled, skilled, technical, operation, clerical or supervisory work.......' It was held
that a teacher would not come under this definition.

[xiv] SAME WORD SAME MEANING, SAME WORD DIFFERENT MEANING

Whenever a word is used in a statute with a particular meaning then it will be understood in
the same meaning and sense. Wherever it may be repeated in that statute in other words,
where the legislature uses the same word in different parts of the same statute or same section,
there is a presumption that the word is used in the same sense.

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 Farell vs Alexander (1976)2 All ER 721

It was held that where the draftsman uses the same word or phrase in similar context, it is
presumed that he intended it in each place to bear the same meaning.

 Bhogilal Chunilal vs state of Bombay (AIR 1959 SC 356

The word 'statement' in section 157 of Indian Evidence Act, 1872 should be used in the same
sense as in secs. 17 - 21, 32, 39 and 145 of the Act. So, the term 'statement' means not only
communicated statements but also notes prepared by a witness recording the conversation
between him and other witnesses.

 Lalchand vs Radha Kishan (1977) 2 SCC 88

It was held that in the absence of compelling circumstances, same word should be used in
same sense throughout the Act. In this case, the term 'tenant' was used in the same sense
throughout the Slum Areas (Improvement and Clearance) Act,1956.

Sometimes, same word may be used in different sense in the same Act. The most common
example of such a situation is the use of word 'may' and 'shall'. In the same Act, these words
may be interpreted as sometimes mandatory and sometimes non- mandatory depending on the
context.

 Members, Board of Revenue vs Arthur Paul Benthall (AIR 1956 SC 35)

The general rule of interpretation is that, words in a statute must be understood according to
their general, common parlance meaning. But, if the legislature uses technical language; the
words should then be understood in that technical sense itself and not according to its
ordinary popular meaning or sense.

 Jyothika Bhattacharya vs State of MP (1976)4 SCC 96

Government took over management of a private school. Refused to continue the appellant as
Principal on the ground that she did hold a Post Graduate degree. Appellant contended that
she was a B.A, B.T holder. B.T degree is also a degree which can be obtained after graduation
only.

Court held that in a broad general sense the term 'post-graduate degree' may include any
degree obtainable only after graduation. But, it is not in this sense that the management rules
used the term. Under the management rules post-graduate degree was meant to be a Master’s

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degree like M.A, MSc, M.Ed, LLM and similar refined degrees. It means the successful
completion of a course of studies at higher level in any specialty after acquiring basic
qualification at graduate level.

 Thampanoor Ravi vs Charuppara Ravi(1999)8 SCC 74)

It was held that term 'insolvency' is used in different sense in legal field and it cannot be given
its common parlance or dictionary meaning. If a word has been given a special connotation in
law, then it must be used in that sense itself and not in its common parlance or dictionary
meaning.

# Section 47 of IPC defines 'Animal' as any living creature other than a human being.

xvi] RULE OF REDUNDANCY

Sometimes, a statute may prescribe some conditions for becoming eligible for something or to
make some act valid. A question arises after gaining eligibility or validity should these
conditions continue to be followed, to retain the eligibility or validity.

If the continuance of these conditions would lead to absurd, unjust results and make that
When in relation to same subject matter, different words are used in the same statute, there is
a presumption that they are not used in the same sense.

[xv] USE OF TECHNICAL WORDS.

Particular section redundant, then the court may ignore such conditions or interpret the
conditions, in such a manner to save that section from redundancy. The following case laws
will illustrate this point:

 Amir Ahmed vs Ram Nivas Agarwal(1994)2SCC50)

According to Section 9 (d) of UP Municipalities Act, a Rajya Sabha member or a member of

Legislative Council (MLC) could become a member of Municipality Board; if they have a
residence within the limits of the particular municipality. Explanation to Section 9(d) clarifies
that 'residence' of a Rajya Sabha member or an MLC shall be deemed to be the residence
mentioned in his election or nomination notification.

In this case, and MLC became a member of Sultanpur Municipality Board even though his
residence was in another place. He had shifted his residence to Sultanpur Municipality 10

66
days before an important Board meeting in Sultanpur Municipality. His election notification
also showed an address outside Sultanpur Municipality. Thus, his membership in Sultanpur
Municipality Board was challenged.

Applying the rule of Redundancy, Supreme Court held that the very object of section 9(d) was
to fix the place of residence of a Rajya Sabha Member or MLC for the purpose of his
membership in a particular Municipal Board. The rule of residence in the particular
municipality is very relevant before he gets membership in that Municipal Board and not
afterwards.

Any other type of interpretation would lead to absurd result. Persons residing in other places
can shift their membership from one municipality board to another by shifting their residence
in order to suit their political objectives. Such an interpretation would make Sec.9 redundant.

 Dinkar Anna Patil vs state of Maharashtra ( 1999)1 SCC 354)

Rule 4 A of Maharashtra Sales Tax Officer Recruitment Rules provides that the Governor
'may' consult the PSC while recruiting the officers. Supreme Court held that the word 'may'
should be interpreted as 'shall'. Otherwise Rule 4 A would become redundant which would be
against the intention of the Legislature.

[xvii] EQUITABLE CONSTRUCTION

The general rule is that, the express words of a statute cannot be overridden by principles of
equity and natural justice. However, if the express words of a statute are doubtful and
ambiguous then the courts can resort to principals of equity in order to reach at the correct
interpretation. Some judges have held that equitable construction is nothing but interpretation
in accordance with legislative intent.

 Bhagirath vs Delhi Administration (AIR 1985 SC 1050)

Appellant accused was convicted to life imprisonment. He claimed that the period undergone
by him as undertrial prisoner should be deducted. Applying the rule of equitable construction
Court allowed his appeal. Court held that equity sustains law and both must meet. They
cannot run in parallel streams.

 Gauri Shankar Gaur vs State of UP (1994)1 SCC 92

Appellants (middle class persons) land acquired by government. But the declaration was
delayed due to a later amendment in the Land Acquisition Act. The amendment extended the

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limitation period for declaration to 3 years. As a result, payment of compensation was
delayed. Court applied rule of equitable construction. Held that compensation should be paid
soon even though declaration could be delayed.

[xviii] SINGULAR, PLURAl, GENDER

A combined study of relevant sections of General Clauses Act and IPC shows that in certain
circumstances 'singular' may be treated as 'plural' and vice versa. Similarly reference to a
'gender' may include other genders too. Section 9 IPC: "unless the contrary appears from the
context; words importing the singular number include plural numbers, and words importing
plural numbers includes singular number.

Section 33 IPC: says that the word 'act' denotes a series of acts as well as single act, the word
'omission' denotes a series of omissions as well as single omission. Section 3 (2) General
Clauses Act also lays down the same principles as in section 33 of IPC.

Sec 8 IPC: Gender: The pronoun 'he' and its derivatives are used of any person whether male
or female.

Section 10 IPC: Man, Woman- The word 'man' denotes male human being of any age, the
word 'woman' denotes female human being of any age.

It is a general practice in common law countries to use masculine gender in legislations and
judicial decisions. Keeping in mind that the context and circumstances of the facts and law;
masculine gender can also imply feminine gender and neutral gender.

 State of Punjab vs. Ram Singh Ex-Constable (1992) 4 SCC 54)

The respondent was working as a gunman of the Deputy Commissioner of Police, Ropar. He
was dismissed from service by order dated 11-2-1980 by the Superintendent of Police, Ropar,
on the charge that he was found heavily drunk in the evening of 6-9-1979 and was roaming at
the bus stand wearing the service revolver. He was arrested and sent for medical examination.
He quarreled with the doctor. The doctor declared him as heavily drunk. As a result, the
respondent was dismissed from the service due to his 'misconduct' under Punjab Police
Manual, 1934.

The respondent contended that taking alcoholic drink as such was not a misconduct. The
question was whether the single act of heavily drinking of alcohol by the respondent while on
duty is a gravest misconduct.

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The Supreme Court gave judgment in favour of the Government, upholding the dismissal
order.

PRINCIPLES: (i) Under General Clauses Act singular includes plural, 'act' includes acts.
The contention that there must be plurality of acts of misconduct to award dismissal is
fastidious. The word 'acts' would include singular 'act' as well. It is not the repetition of the
acts complained of but its quality, insidious effect and gravity of situation that ensues from
the offending 'act'. The colour of the gravest act must be gathered from the surrounding or
attending circumstances.

(ii) Take for instance the delinquent who put in 29 years of continuous length of service
and had unblemished record; in thirtieth year he commits defalcation of public money
or fabricates false records to conceal misappropriation. He only committed once. Does
it mean that he should not be inflicted with the punishment of dismissal but be
allowed to continue in service for that year to enable him to get his full pension? The
answer is obviously 'no'. Therefore, a single act of corruption is sufficient to award an
order of dismissal under the rule as gravest act of misconduct.

Section 125 of Cr.P.C. is a substantive provision, which empowers the courts to grant
maintenance to wives, parents and children, who are unable to maintain themselves and have
no source of income. (This section does not apply to Muslims.) The word "wives" even
though it is used in the plural form, the term must be construed and restricted 'only to wives of
monogamous marriages' in the context of Hindu and Christian Laws.

[xix] RULE OF LAST ANTECEDENT

Antecedent literally means 'coming before' in the context of interpretation of statutes.

Antecedent means some word or sentence coming before or after another word or sentence.
Such antecedent words qualify its neighbouring words and sentences. Antecedent words or
sentences are of adjective nature. They give special colour and meaning to their neighbouring
words and sentences. Examples of adjectives in common parlance- 'beautiful' flower, costly
necklace, fat person, persons in possession of Aadhar Card, non -profit making companies,
students receiving stipend, persons below poverty line etc.

Similarly; statutes may contain certain qualifying or adjective phrases in its provisions. Court
should interpret these provisions by taking into consideration it's 'antecedents' or qualifying,
adjective phrases near it. This is called rule of last antecedent.

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Sec.1 of the Contract Act, 1872 says that the provisions of other usages and customs which
are not inconsistent with the Contract Act, shall not be affected by the Contract Act.

The underlined words are antecedents as they qualify the words- 'Acts', 'usages' and 'customs'.

 (AIR (1965) SC 745)Advisory opinion under Art.143.

Art.194 of the Constitution grants freedom of speech to state legislative members subject to
provisions of the constitution and rules and standing orders regulating procedure of
Legislature.

Here the underlined words qualify the nearby words- 'rules and standing Orders' and
'provisions of constitution'. Hence, only those provisions of the constitution and rules and
standing orders which are in the nature of regulating the procedure of Legislature can affect a
member’s freedom of speech. Other kinds rules, standing Orders and constitutional provisions
cannot affect a member’s freedom of speech.

 State of Bombay vs. RMDC(AIR 1957 SC 699)

The Maharashtra State Government enacted the Bombay Lotteries and Prize Competitions
Control and Tax Act, 1948 with the objects of controlling lotteries and prize competitions and
to impose taxes upon them. Section 2 (1) (d) of that runs as follows:

Sec. 2(1)(d). Prize competition includes: (1) Cross-word Prize Competition, (2) Missing Word
Prize Competition, (3) Picture Prize Competition, (4) Number Prize Competition, or (5) any
other prize competition, for which solution is or is not prepared beforehand by the promoters
or for which the solution is determined by lot or chance.

'for which solution is or is not prepared beforehand by the promoters or for which the solution
is determined by lot or chance' is the relative and qualifying clause preceding the fifth item
'any other prize competition'.

The court held that the words 'for which solution is or is not prepared beforehand by
promoters or for which solution is determined by lot or chance' is applicable to all the 5 items
and not just the 5th item.

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 Regional Provident Fund Commr. Vs Shree Krishna Metal Mfg Co.(AIR 1962 SC
1536)

Sec.1 of Employees Provident Fund Act,1952 says that it applies to 'every establishment
which is. any industry specified in Schedule 1 and in which 20 or more persons are employed.

The company had more than 20 employees but it was not an industry specified in Schedule 1.
The company tried to apply Rule of Last Antecedent by holding that the words ' twenty or
more persons employed' would apply only to industries specified in 1st Schedule.

But, Supreme Court rejected the company's arguments and held that the words ' twenty or
more persons employed' would apply even to industries not specified in 1st Schedule.

Court held that Rule of Last Antecedent cannot be applied if it contradicts with the context,
scheme and object of the Act.

[xx] VOID FOR VAGUENESS RULE

In American Constitutional law; a statute is treated as void and unconstitutional, if it is too

vague(unclear) for an average citizen to understand. The rule is particularly strong in case of
Penal Statutes. Criminal laws which do not clearly and definitely state what conduct is
punishable and how it is punishable is void for vagueness. Similarly, statutes which
excessively delegate powers to judges and administrators without proper guidelines is void for
vagueness. In India, this doctrine was applied in Shreya Singal vs UOI(2015), in which it
was held that section.66A of IT Act is void and unconstitutional and affects freedom of
speech and expression of an individual. Words "grossly offensive " held to be vague to send
or like or post message on social media.

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 CHAPTER 4

AIDS TO INTERPRETATION

Aids to interpretation are sources inside and outside the statute which help the courts during
interpretation of the statute. These aids enable the court to find out the true meanings of
doubtful and ambiguous expressions in the statute.

I. INTERNAL AIDS TO INTERPRETATION

Also known as INTRINSIC AIDS TO INTERPRETATION. These are sources inside the
Act; used while interpreting the Act in cases of ambiguity. These are PARTS OF A
STATUTE itself:

1. Preamble

2. Long title

3. Short title

4. Proviso

5. Explanation

6. Exceptions

7. Illustrations

8. Non Obstante clause

9. Deeming Provisions [Legal Fiction]

10. Definition Clause [Interpretation clause]

11. Marginal notes

12. Mandatory & Directory Provisions

13. Conjunctive & Disjunctive provisions

14. Schedules

15. Transitional Provisions

16. Punctuation

17. Repealing clause

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 18. Saving clause

19. Ouster clause

20. Commencement clause

21. Articles

22. Headings

23. Enacting clause

Let us discuss these in detail:

1. PREAMBLE

Comes after the long title and enacting clause of an Act. It is a part of the Act and an
admissible aid of construction of the Act - Jai Singh vs Union of India . It explains &
declares the policy, purpose, reasons and motive and objects of the Act. In other words, it
shows the REASON for the Act. In Kesavanda Bharati Case, it was held that Preamble is a
KEY to open the mind of the constitution. In Kochunnni vs State of Madras, it was held that
the Preamble can be consulted to solve any ambiguity in the Act and to find out the true scope
of the Act.

It has been judicially settled the Preamble can be useful for the following purposes:

- To ascertain legislature intent - Lucknow Devpt Authority vs M K Gupta

- To understand the Pith & substance of the Act - Oudh Sugar Mills vs State of UP

- To construe the provisions of the Act and to understand the mischief to be remedied
by the Act - All Saints High School vs Govt of AP

It is to be noted that the Preamble cannot be used to control, qualify, enlarge or restrict the
clear and express provisions of the Act. It should be used only in case of ambiguity. It cannot
override the express provisions of the Act. In Abdul Rahman vs R N Kulkarni, it was held
that it is a basic principle that the clear section of an Act cannot be treated as invalid only
because it is inconsistent with the Preamble.

To conclude, as held in Oudh Sugar Mills cs State of UP(1959), Preamble cannot be the sole
basis for interpretation of an Act. The Act should be read as a whole to understand its true
object - Mohinder Pal vs State of HP.

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2. LONG TITLE

Comes before the Preamble at the head of the Act, gives a fairly full description of the general
purpose of the Act. However, it is not as comprehensive as the Preamble in expressing the
scope, object and purpose of the Act - Jai Singh vs UOI (1993) .

It is judicially settled that Long title is a part of the Act and admissible as an aid to its
construction. Usually starts with the words “An Act”. Eg: Long title of the Code of Criminal
Procedure 1973 says “An Act to consolidate and amend the laws relating to criminal
procedure”. Long title of the Supreme Court Advocates (practice in High Courts) Act 1951
says “An Act to authorize Advocates of the Supreme Court to practice as of right in any high
court. Long title alone or along with the Preamble is a good guide regarding object, scope,
purpose of the Act.

However, it can be resorted to only in case of ambiguity or unclear language cannot control or
override express and clear provisions of the Act - Aswini Kumar vs Aravinda Bose. However,
long title can be misleading in some cases. For Eg: the long title of the Muslim Women
(Protection of rights on Divorce) Act 1986 may seem to be favourable and beneficial to
Muslim women. But actually, the Act took away the right of divorced Muslim women to
claim maintenance from their husbands under Sec 125 of CRPC. Under this ACT, a divorces
Muslim woman is entitled to receive maintenance only during ’Iddat Period’.

3. SHORT TITLE

It is a title given to the Act only for the facility of reference and no other purpose. Object of
the Short title is only identification of the act and not description of the Act. Eg: Indian Penal
Code 1960, Code of Civil Procedure 1908, etc. In Re Boaler case (1915). the short title of an
Act was ‘Vexatious Actions Act, 1896. The Act was intended to present abuse of process of
Court by institution of vexatious legal proceedings. The issue in this case was whether this
Act was applicable to criminal proceedings. It was contended that the short title of the Act
contained the word ‘Action’ which would mean only civil proceedings.

But, the Court rejected this view and totally disregarded the short title of the Act, it is clear
that the Act would apply to all types of legal proceedings (civil/criminal).

It is settled view that short title or long title cannot be treated as a conclusive aid of
interpretation cannot control override express and clear provisions of the Act. Sometimes the
Act may deal with subjects which are not expressed in the title R v Washington (1881)

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In Himmat Singh vs State of Rajasthan it was held that short title given to an Act is only for
the purpose of reference and no other purpose. When an Act is referred by its short-titile, it is
intended to be referred with all its up to date amendments.

4. PROVISO

Provisos are sentences or statements attached to the section in order to QUALIFY that
section. That is to exclude something which would otherwise have been a part of the Section.
Eg: Art 240(1) of the Constitution confers power on the President to make regulations for the
peace, progress and good government of the Union Territories, Proviso to the Art 240(1) says
that the President shall not make any regulations after a legislature has come into force in that
Union Territories. Thus, it is clear, that in the absence of this proviso, the President would
have power to make regulations in Union Territories even after the establishment of a
Legislature in those Union Territories - T M Kanniyan vs ITO, Pondicherry (1965).

Proviso usually start with the words “provided that” Something they are given as independent
sections. Eg: Art 311 is a proviso to Art 310 of the Constitution. Sec 27 of IEA is a proviso to
Secs 24-26. In CIT vs Indo Mercantile Bank Ltd (1959), it was held that the object of
provisos is to carve out an exception to the main section.

It has been judicially settled that Provisos are part of an Act and a useful aid to interpret the
Act. The following are the rules regarding using of proviso for interpretation.

 When the words of the Act are clear and express, then provisos cannot be used to
control it. When words are not clear, provisos can be looked into to understand the
meaning and scope of provision.

 Provisos should be construed IN RELATION to the sections to which it is attached.

Proviso must be restricted to and dependent on the scope of the words in the section.
Courts should sincerely attempt to harmonize the Section and the proviso and try to
avoid repugnancy between the two - Tahsiladar Singh vs State of UP (1959).

 If the legislative intent is to apply the proviso to the entire Act, then it must be
followed -

McDonald vs United States

 Sections and provisos should be read as a whole. Proviso cannot be divorced from the
section - Dwaraka Prasad vs Dwaraka Das (1976).

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  If the proviso cannot be harmonized with the section (that is, it is contradicting with
the section), then the proviso shall prevail over the section and the section shall be
repealed. This is because the proviso speaks to the last intention of the legislature (as it
comes after the Section).A.G vs Chelsea Water Works co: However, such an
interpretation should be avoided as far as possible and is not followed normally -
Madan Gopal vs Additional District Judge (1989).

If the proviso cannot be brought within the scope of the section, it may be treated as an
independent substantive provision - Keshablal vs IT Commissioner (1957).

Sometimes provisos may be simply added to a section even though the words of the section
are very plain and clear. This is done only as a precaution (ex abundanti cautela). Such
provisos are only inserted to remove fear from the minds of people. Such provisos are not
taken seriously - Meyyappa Chetty vs Subramania Chetty (1916).

5. EXPLANATION

Is added to a Section to explain and clarify the Section in a better manner. The purpose of the
explanation may be to include something or to exclude something from the scope of the
section.

The Supreme Court observed in S. Sundaram v. V. R. Pattabhiraman(AIR 1985 SC 582) that

it is well settled that an explanation added to a statutory provision is not a substantive
provision in any sense of the terms but as the plain meaning of the word itself shows, it is
merely meant to explain or clarify certain ambiguities which may have crept in the statutory
provision.

The objectives of an explanation to a statutory provision are as follows:

(i) to explain the meaning and intendment of the Act itself

(ii) where there is any obscurity or vagueness in the main enactment, to clarify the same
so as to make it consistent with the dominant object which it seems to sub serve;

(iii) to provide additional support to the dominant object of the Act in order to make it
meaningful and purposeful

(iv) an explanation cannot in any way interfere with or change the enactment or any part
thereof but where some gap is left which is relevant for the purpose of the explanation,

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 in order to suppress the mischief and advance the object of the Act, it can help or assist
the court in interpreting the true purport and intendment of the enactment, and

(v) it cannot however, take away a statutory right with which any person under a statute
has been clothed or set at naught the working of the Act by becoming a hindrance in
the interpretation of the same.

For example, Article 58 of the Constitution lays down qualifications for election as President.
One of the qualifications is that the person should not be holding any office of profit under the
Central or State governments. Explanation to Article 58 clarifies that a person shall not be
deemed fit to hold an 'office of profit due to reason that he is President, Vice-President,
Governor, or a Minister.

Section 499 of IPC defines the offence of Defamation. It contains six explanations, which
further clarify and extend the scope of Section 499. For instance, Explanation 4 makes it clear
that an imputation is said to harm a person's reputation only if it directly or indirectly, in the
estimation of others:

- lowers his moral or intellectual character,

- lowers his character in respect of his caste or calling,
- lowers his credit,
- causes others to believe that his body is in a loathsome or disgraceful state.

Explanation 1 says that it may amount to defamation to make an imputation about a deceased
person if it would hurt the feelings of his family or near relatives.

6. EXCEPTIONS

These are used in a section to exempt something which would otherwise come within the
purview of that section. Similar in effect to a Proviso. The difference between exception and
proviso is that an exception is treated as a part of the main section whereas a proviso follows
the main section. If a proviso is in conflict with the main section, the proviso will usually
prevail over the main section. But, if an exception is in conflict with the main section then the
exception will be ignored. However, both the proviso and exceptions operate to restrict the
general language of the main section.

E.g.: Sec 300 of IPC defines Murder. The section also lays down 5 exceptional cases in which
the: killing of a person would not amount to Murder. Section 499 of the IPC defines

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Defamation. It lays down 10 exceptions in which harming the reputation of a person would
not amount to defamation.

7. ILLUSTRATION

These are pictorial representations of a section. They show practical situations under which
the provisions of the section work and thereby explain and clarify the section. They help to
understand the section better. They are valuable guidelines in understanding the section. E.g.,
Sec 511 of IPC says about ‘Attempt’ to commit offences. There are also illustrations given in
this section.

E.g.: ‘A’ makes an attempt to pick the pocket of ‘Z’ by thrusting his hand into Z’s pocket. ‘A’
fails in the attempt in consequence of Z’s having nothing in his pocket. ‘A’ is guilty under the
section.

Sec 299 of IPC says about Culpable Homicide. An illustration to the section is as follows: ‘A’
lays turf and grass over a pit with the intention knowledge that ‘B’ would fall into it believing
it to be firm ground. ‘B’ falls into the pit and dies in consequence. ‘A’ is guilty of culpable
homicide.

It has been judicially settled that an illustration cannot enlarge, restrict, or modify the section.
However, the courts cannot neglect them. If the illustrations are contrary to the section, they
may be ignored - Shambu Nath Mehta vs State of Ajmer (1956), K C Sonrexa vs State of UP
(1963).

8. NON-OBSTANTE CLAUSE

Starts with the words ‘Notwithstanding,’ such clauses may be attached to the beginning of a
particular section in an Act in order to give overriding effect over the other provisions of the
Act or another Act.

If there is any conflict or inconsistency between the Non-obstante clause and the section or
between the non-obstante clause and any other law, still the Non-Obstante clause will not be
held invalid. In other words, the operation of a non-obstante clause cannot be obstructed by
the provisions of the same Act or another Act. E.g., Art 239(2) of the Constitution says that
‘Notwithstanding anything contained in Part VI, the President may appoint the Governor of a
State as the administration of a Union territory, and……. the governor shall exercise his
functions as such Administrator independently of his Council of Ministers’ [It is to be noted

78
that under Part VI of the constitution, the governor exercises most of his powers only on the
advice of his Council of Ministers].

In Dominion of India vs Shrinbai Irani (1955), it was held that it is not necessary that there
should always be a close relation between the main section and its non-obstante clause. A
non- obstante clause can restrict or control the provisions of the main section. But, if the main
section is clear and plain (capable of only one meaning), then the non-obstante clause cannot
be used to control or restrict or enlarge the main section - Nand Kishore vs State Transport
Appellate Tribunal (1979).

9. DEEMING PROVISIONS (LEGAL FICTION)

Deeming provision is a fiction and assumption that a thing is true whether it is actually true or
not. In a legal fiction, an imaginary situation and its consequences are created and given full
legal effect. In the absence of such a legal fiction, it would have been impossible to give legal
effect to such a situation. Thus, the rights of the parties have to be determined based on this
fiction.

The purpose of Deeming provisions (legal fiction) may be:

- Convenience -for the parties/court/for persons implementing the Act

- To prevent abuse or misuse of the Act

- To realize the object of the Act.

It is to be noted that a deeming provision can be used only for a particular purpose. It cannot
be pushed beyond the purpose for which it was created.

E.g., Articles 6 to 8 of the Constitution say about Deemed citizens of India at the
commencement of the Constitution- persons migrated to and from Pakistan before or after
particular dates, persons of Indian origin born outside India.

In the absence of Articles 6 to 8 and the legal fictions and conditions created by these articles,
such persons could not have been treated as citizens of India. In the absence of Articles 6 to 8
only persons domiciled in India as per Article 5 would have been treated as Indian citizens.

Under Sec 60 to 65 of the Income Tax Act, income of a person shall be deemed to include
income of his spouse, minor child, etc. The object of these deeming provisions is to prevent
tax evasion by fraudulent transfers of income in the name of spouse/minor child, etc.

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Under the Companies Act, a person having dealings with a Company is deemed to have read
the important documents of the company [Memorandum & Articles of Association].

Mobarak Ali Ahmed vs State of Bombay: Under Sections 2 to 4 of the Indian Penal Code,
Indian criminal Courts have jurisdiction over:

- Indian citizens, wherever they are

- Any person in Indian territory

- Any person on board an Indian regd ship or aircraft.

In this case, the accused, a Pakistani citizen fraudulently obtained money from an Indian in
Bombay through letters and phone calls from Pakistan. The money was delivered to the
accused’s agent in Bombay. In the cheating case charged against him, the accused claimed
that Indian courts had no jurisdiction over him as per the Indian Penal Code, Sections 2 - 5.

But, the court rejected his contention and held that the presence of his agent in Bombay would
be deemed to be the accused’s personal presence in India at the time of commission of the
offense.

10. DEFINITION CLAUSE (INTERPRETATION CLAUSE)

It is also known as a statutory dictionary, usually seen at the beginning area of a statute; it
enumerates a list of important words in the Act and their meanings. Sometimes the meaning
of a word as defined in the definition clause may be different from the common parlance
meaning of that word. Where a word is given a particular meaning in the definition clause of
an Act; that word should be understood in that particular sense wherever they occur in that
Act. However, this is not an absolute rule. In Janaki vs. Chellappan (1973 KLT 736), it was
held that a definition clause has to be read and understood in the context in which the word
may be found in the statute. Due to this reason, most definition clauses start with the words
“unless the context otherwise requires”.

E.g.: Section 2 of CrPC gives a list of 19 words and their meanings. According to the CrPC:

A) Section 2(a) -- Bailable offence

B) Section 2(b) – Charge

C) Section 2(c) -- Cognizable Offence

D) Section 2(d) -- Complaint

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 E) Section 2(g) -- Inquiry

F) Section 2(h) -- Investigation

G) Section 2 (p) -- Place

H) Section 2(o) --- Officer in charge of police station etc.

However, Section 2 starts with the words “unless the context otherwise requires”.

In K.V Muthu vs. Angamuthu Ammal (AIR 1997 SC 628), the landlord wanted to evict the
tenant as the building was required for the landlord's foster son. Under the Tamil Nadu
Buildings Act, the landlord could evict the tenant if the building was required for a member of
the landlord's family. The term family was defined as ‘Spouse, Son, Daughter, Grandchildren
or dependent parent’. The tenant contended that ‘son’ would not include foster son as per the
definition. But, the court held that the definition clause begins with the words ‘unless the
context otherwise requires’. Hence, son would include ‘foster son’.

Sometimes, a definition clause contains the words ‘MEANS’, ‘INCLUDES’ or ‘MEANS

AND INCLUDE’, ‘DENOTES’. Use of the words ‘MEANS’ restricts the meaning and scope
of the word; whereas use of the words ‘include and denotes’, enlarges the meaning and the
scope of the word. It may add several things which would not ordinarily come under the
definition. However, such enlarged or extended meaning should not be repugnant to the
subject and context of the Act. State of Bombay vs. Hospital Mazdoor Sabha (AIR 1960 SC
610). The court held that the hospitals can be treated as ‘industry’ for the purpose of Industrial
Dispute Act. The court relied on the definition of ‘Industry’ in section 2(j) of the act, which
says “Industry means any business, any trade, undertaking, manufacture or calling of
employers and includes calling service, employment, handcraft, occupation or vocation of
workman”.

Sometimes definition clauses use the words ‘That is to say’. These are not restrictive. The
words after these words are to be treated as further illustrations and explanations and
clarifications of the words defined.

Other examples of Definition Clause:-

E.g.: Sec.21 of the Indian Penal Code defines Public Servant, and gives a list of persons who
may be treated as public servants.

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Art 12 of the Constitution defines ‘State’. It says that State includes Govt and Parliament of
India and the Govt and Legislature of States and all local or other authorities within the
territory of India or under the control of Govt of India.

Section 2 (s) of the Industrial Dispute Act, 1947 defines ‘Workman’. The definition
specifically states that ‘workman’ will not include persons in Defence forces, police force,
persons employed forces, police force, persons employed in managerial capacity etc.

Thus, it is clear that a Definition clause/ Interpretation clause can add or subtract anything
which normally cannot be added or subtracted from the section. In Angoori Devi vs. State of
UP, it was held that where a term is defined in an Act. The court has to follow that definition
and not its ordinary meaning. For e.g., The word ‘ceiling means ‘roof of a room’ in ordinary
language, But, under land laws ceiling limits are defined as the maximum area of land which
a person may hold.

11. MARGINAL NOTES:

These are side notes which are printed at the side of the particular section in an Act. These
notes are inserted by draftsmen themselves and not under the instruction of the legislature.

The majority of the judicial views say that Marginal notes cannot be treated as a part of the
Act and should be used as an aid of construction only in exceptional situations. For example,
in Bengal Immunity Co: ltd vs. State of Bihar (1955), it was held that marginal notes
attached to the Articles of the Constitution are part of the Constitution. In this case, the
marginal note appended to Art 286 of the Constitution ("Restriction as to imposition of tax on
the sale or purchase of goods") were held to be part of the Constitution as they gave a clue as
to the meaning and purpose of the Article. In Uttam Das vs. Shiromani Gurudwara
Prabhandak Committee (1996), it was held that marginal notes provide a key to legislative
intent. They are not mere surplusage and cannot be wholly ignored. Ramachandra Deo vs
Balu Patnaik.

In Chandler vs. DPP (1964), it was held that Marginal notes are mere catch words. They may
be used in interpretation only in case of ambiguity and to consider the general purpose of the
Act.

It cannot override the provisions of the Section or the Act. They cannot control the word of
the section, especially when the words are clear and straightforward and express.It can be
depended on only to understand the 'drift' of the section (K.P. Varghese vs Income Tax

82
Officer (1981)).

When there is a conflict or inconsistency between the words of the Section and its marginal
notes; then the marginal notes should give way. In other words, the words of the Section shall
prevail.

12. MANDATORY & DIRECTORY PROVISIONS:

Mandatory provisions in a statute are those which should be compulsorily obeyed. They are
usually indicated by the word 'SHALL'.

 E.g.: According to the Transfer of Property Act, transfer of property above the
value of Rs.100/- shall be compulsorily registered.

 According to the Limitation Act, a suit for recovery of debt should be instituted
within 3 years.

 Fundamental Rights (Article 12 - 35) of the Constitution are mandatory

provisions, which must be implemented by the State. If the State violates these
rights, the aggrieved person can approach the court.

 Fundamental Duties are also mandatory in nature.

Directory provisions in a statute are those which need not be followed compulsorily. Persons
implementing or interpreting these provisions have discretion whether to obey them or not.

Directory provisions are usually indicated by the use of the word 'MAY'. For example,
Directive Principles under the Constitution, Registration of Partnership, Registration of the
Hindu Marriage, etc. However, it is judicially settled that the use of the words 'SHALL' or
'MAY' are not conclusive of the mandatory or directory character of a particular section. The
court has the power to determine the real intention of the legislature by carefully examining
the scope of the Act.

Examples:

 Municipal Committee vs. Ranji Lal Bagla (1995): The land of the petitioner was
acquired by the government under the Punjab Town Improvement Act, 1922 and Land
Acquisition Act, 1894. The Act prescribes the time limit within which the Govt should
complete improvement schemes on the acquired land. The Govt failed to do so. The
petitioner approached the Court. The issue was whether the provision regarding time-

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 limit was mandatory or directory?

The court held that the provision was only directory in spite of the use of the word 'shall'
because the Section did not lay down the consequences of the non-compliance with the said
provision.

 Keshav Chandra Joshi vs. Union of India (1992): Under the U.P Forest Service
Rules, 1952, the Governor may consult the PSC before fixing seniority of the
employees. The issue was whether this section was mandatory or directory.

The court held that the context and scope of this Act showed that it is a statutory duty and
non-compliance with the same would lead to undue hardship, unjust, and inequitable results.
Hence the provision is mandatory in spite of the use of the word 'MAY'.

13. CONJUNCTIVE/ DISJUNCTIVE PROVISIONS:

Conjunctive word is a word which joins other words and expresses the relation between the
words. Conjunctive words are expressed as AND. Disjunctive words are words which express
a choice or alternative. Disjunctive words are expressed as OR or EITHER.

In interpretation of statutes, small words like AND and OR have great significance.
Sometimes AND is treated as OR. Sometimes OR is treated as AND, but in penal statutes OR
will never be treated as AND particularly in case of punishments. For example, "whoever
wrongfully restrains any person shall be punished with simple imprisonment up to one month
OR with fine up to Rs.500/-. Here it is clear that the judge cannot give both punishment and
fine.

 Sanjay Dutt vs. State through CBI (1994):

Sanjay Dutt was arrested under TADA Act and Arms Act for possession of arms
unauthorizedly. Under the Arms Act, unauthorized possession of arms AND ammunition is an
offense. It was contended by the accused that a person could be arrested only if he
unauthorizedly possesses both arms and ammunition.

But, the Supreme Court held that the terms arms and ammunition should be read disjunctively
and not conjunctively. In other words, it should be deemed to mean arms OR ammunition.
Otherwise, the very object of the Act would be frustrated and it would lead to the release of
criminals and terrorists on the ground that they were carrying only arms or only ammunition.

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14. SCHEDULES:

They are important parts of a statute. There are in the form of a catalogue or lists towards the
end of the statute. They may be used for different purposes; for example, in the Central Excise
Act, the schedule lays down a list of excisable goods and the rates of tax applicable to them.
The schedule to CPC and KVAT Act lays down various forms for filing different kind of
application.

The Schedule to the Limitation Act lays down a list of various types of civil cases along with
time limits for filing them. The schedule to the Indian Constitution lays down a list of official
languages, backward castes, etc. The general rule is that in case of conflict between the Act
and the Schedule, the schedule should be ignored. (Aphal Pharma Ltd v. State o
Maharashtra (1989)). But in IRC v. Gittus (1920), Lord Stemdale opined that if the Act says
that if the schedule should be used for a particular purpose, then it must be given effect,
even if it is in conflict with the Act.

15.TRANSITIONAL PROVISIONS:

These are temporary provisions in an Act. Transition means "change". When a new Act is
being brought into force or a new Act is replacing an old Act, the new Act may contain some
provisions for adapting (adjusting) to the new changed situation. Once the new situation has
been totally adapted to, then the transitional provisions will have no effect.

For example, Article 392 of the Constitution confers power on the President to remove any
difficulties in the way of transition to the Constitution from the Government of India Act,
1935. This temporary power stops as soon as the first meeting of a duly constituted
Parliament takes place (K.S Paripoornan vs. State of Kerala (AIR 1995 SC 1012). It was
held that Sec. 30 of the Land Acquisition Act is a transitional provision. It indicates how far
the new provisions are retrospective.

16. PUNCTUATION:

Punctuation marks or Punctuation means the right use of the stops in a sentence. The
following are the important punctuation marks:

(a) Full Stop or Period (.)

(b) Comma (,)

(c) Semicolon (;)

(d) Colon (:)

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 (e) Interrogation Mark or Question Mark (?)

(f) Exclamation Mark (!)

(g) Inverted Commas or Quotation Marks (‘…’ and “…”)

(h) Dash (-)

(i) Apostrophe (‘)

(j) Hyphen (-)

(k) Brackets ( ), [ ]

Note: Punctuation marks also include Capital Letters and Brackets[ Refer to English
Grammar books for further details and use of punctuation marks and brackets].

Examples:

(a) “The Judge says the criminal should be beheaded."

The reader of this sentence certainly will be confused. The sentence is not clear. Whose head
should be beheaded? To give the correct meaning, there must be punctuation marks.
Therefore , the above sentence should be:

The Judge says: “the criminal should be beheaded”

(b) During the British reign, a death sentence was passed against X, a criminal. The date
was fixed for hanging by the Court in India. He appealed to the Privy Council. The
Privy Council wanted to consider the appeal pending the execution of the death
sentence. It had sent a telegram as follows to the concerned Central Jail in India:
"Stop, not hang X-the criminal."

When the telegram was received by the Superintendent of the Central Jail, the telegram was
like this: "Stop not, hang X-the criminal."

As on the date of execution, the officers implemented the death sentence and hanged X. One
comma changed the meaning of the sentence, and caused the death of X.

The important object of punctuation marks is to ensure that the meaning of what is written is
conveyed to the reader's mind quickly, clearly, and unambiguously.

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IMPORTANT POINTS:

Prior to 1849, the British Parliament did not pay much attention to the punctuation marks in
the statutes, Charters, and Regulations. Since 1949, punctuation marks have been inserted in
the Acts, Charters, Regulations, etc. In India, since the time of the First Law Commission, the
punctuation marks have been inserted in the Acts.

The contents of the Section are primary. The punctuation marks occupy the secondary place.
First priority should be given to the contents of the Section and the entire context to know the
intention of the legislature. The real intention of the makers can be understood by the clear
and unambiguous words, but not from the punctuation marks. It is now a well-settled
principle that the punctuation marks are part of the section. However, the punctuation marks
are not allowed to control the plain meaning of the section. It is not safe to rely on punctuation
as a deciding factor.

Printer's or Proof Reader's Errors: The punctuation marks may not be appropriately placed in
the Section due to the common errors of the printer or proof reader. While disposing of
President of Shire of Charlton vs. Ruse (1912) 14 CLR 220, Griffith, C.J. observed, "I think
that stops, which may be due to a printer's or proof reader's error, ought not to control the
sense if the meaning is otherwise tolerably clear."

 A.K. Gopalan vs. State of Madras (AIR 1950 SC 27),

Sub-clause (a) of Clause 7 of Article 22 of the Constitution is like this: Parliament may by law
prescribe, (a) the circumstances under which, and the class or classes of cases in which, a
person may be detained for a period longer than three months under any law providing for
preventive detention without obtaining the opinion of an Advisory Board in accordance with
the provisions of sub- clause (a) of Clause (4)."

Supreme Court held: "The use of the word 'which' twice in the first part of the sub- clause,
read with the comma put after each, shows that the Legislature wanted these to be read as
disjunctive and not conjunctive.

PRINCIPLES: The Supreme Court observed: "The better rule is that punctuation is a part of
the Act and that it may be considered in the interpretation of the Act but may not be used to
create doubt or to distort or defeat the intention of the Legislature. When the intent is
uncertain, punctuation, if it affords some indication of the true intention, may be looked to as

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an aid. In such a case, the punctuation may be disregarded, transposed or the Act may be re-
punctuated if the Act as originally punctuated does not reflect the true legislative purpose. An
Act should be read as punctuated unless there is some reason to the contrary, and this is
especially true where a statute has been repeatedly re-enacted with the same punctuation”.

 Lewis Pugh Evans Phug vs Ashutosh sen (AIR 1929 PC 69

Article 48 of the Limitation Act, 1908 (old Act) prescribes the limitation as follows
48 For specific moveable property One Year, When the Act of theft or
lost or acquiesced by theft, or dishonest misappropriation
dishonest misappropriation or or conversion takes place
conversion or for compensation
for wrongfully taking or detaining
the same

Lord Warrington rejected the contention that the word 'dishonest qualified not only
misappropriation' but also conversion' bringing only dishonest conversion within Article 48.
He observed: The truth is that, if the Article is read without inserted in the print, as a court of
law is bound to do, the meaning is reasonably clear”. As there was no comma inserted after
'dishonest', the Privy Council applied this term to both misappropriation' and 'conversion',
thus it had become 'dishonest misappropriation' and 'dishonest conversion If the ‘comma’ was
inserted after 'dishonest', then I would have become a specific offence, besides
misappropriation' and 'conversion’

17. REPEALING CLAUSE

Repeal= (n.) a revocation.

A repealing clause = a clause which repeals an Act, rendering it null and void. It signifies the
abrogation of one statute by another. Due to changed circumstances, a statute may not work
satisfactorily. To improve its functioning, the legislature repeals it and enacts a new statute in
its place. This is a common practice in law-making.

Examples:

(a) Section 159 of the Trade Marks Act, 1999 has repealed the Trade and Merchandise
Marks Act, 1958.

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 (b) The Specific Relief Act, 1877 was repealed by the Specific Relief Act, 1963.

(c) The Criminal Procedure Code, 1898 was repealed by the Criminal Procedure Code,
1973.

(d) The Urban Land (Ceiling and Regulation) Act, 1976 was repealed in Punjab and
Haryana by the Urban Land (Ceiling and Regulation Repeal) Act, 1999.

(e) The Companies Act, 1913 was repealed by the Companies Act, 1956. Another Bill has
been prepared to repeal the Companies Act, 1956, but it has not yet been passed by
Parliament.

(f) The Arbitration Act, 1940 was repealed by the Arbitration and Conciliation Act, 1996.

A repealing clause inserted in the new statute removes the previous statute entirely. It puts an
end to that Act. For example, the Trade and Merchandise Marks Act 1958 was repealed by the
Trade Marks Act, 1998. Therefore, now the Trade and Merchandise Marks Act, 1958 is not in
force. There will be no future operation of the repealed enactment.

The legislature which makes the previous Act must possess the power to repeal it. The right
of making a statute vested in the legislature is also co-extensive with its power to repeal it. If
the Parliament enacts a certain Act, it can also repeal it. The State Legislature cannot repeal
an Act of the Parliament unless specially authorized to do so. This is explained in "Division of
Legislative Powers between Union and States in the Constitution of India."

While disposing of Surtees vs. Ellison (9 B & C 752), Tenterden, C.J. observed: "The general
rule is when an Act of Parliament is repealed, it must be considered (except as to transactions
past and closed) as if it had never existed."

Effect of repeal: By the repealing of a statute, the vested rights are not effected. But inchoate
rights may be defeated.

Section 6 of the General Clauses Act, 1897 explains the effects of repeal. It says where this
Act, or any Central Act or Regulation made after the commencement of this Act, repeals any
enactment heretofore made or hereafter to be made then, unless a different intention appears,
the repeal shall not:

(a) revive anything not in force or existing at the time at which the repeal takes effect, or

(b) affect the previous operation of any enactment so repealed or anything duly done or
suffered thereunder, or

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 (c) affect any right, privilege, obligation, or liability acquired, accrued, or incurred under
any enactment so repealed, or

(d) affect any penalty, forfeiture, or punishment incurred in respect of any offense
committed against any enactment so repealed, or

(e) affect any investigation, legal proceeding, or remedy in respect of any such right,
privilege, obligation, liability, penalty, forfeiture, or punishment as aforesaid;

and any such investigation, legal proceeding, or remedy may be instituted, continued, or
enforced, and any such penalty, forfeiture, or punishment may be imposed as if the
repealing Act or Regulation had not been passed.

A. Repeal and Amendment: The repealing clause repeals certain clauses or sections, and most
generally the entire statute. Amendments may be made to schedules, rules, forms but not to
the entire statute. The Constitution of India has been amended seventy-eight times up to now.
It is not equal to repeal. A Repealing Act is completely void, whereas an amending Act is
functioning.

18. SAVING CLAUSE

While making a new Act, amending an existing Act, or repealing an existing Act, the
legislature may add a provision to protect past transactions and certain situations from the
operation of the new legal position.

Examples:

Arbitration Act, 1940 was repealed by the Arbitration & Conciliation Act 1996. Sections 85
and 86 of the 1996 Act state that notwithstanding such repeal, the 1996 Act shall not affect
arbitral proceedings or acts done under the old Act before the commencement of the 1996
Act.

 Trilok Chand Gopal Das vs. State (AIR 1957 Ajmer 100)

The provincial Government of Punjab enacted the East Punjab Public Safety Act, 1947, and it
was extended to Ajmer. That Act empowered the District Magistrates and the Chief
Commissioners to issue pre-censorship orders on publishers and journals. The Chief
Commissioner, Ajmer under that Act issued a notification dated 24-2-1948. Subsequently, the
East Punjab Public Safety Act, 1947, was repealed by the East Punjab Act, 1949 (Act No. 5 of
1949).

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The petitioner/appellant raised the question that the notification issued by the Chief
Commissioner, Ajmer would become void by the Repealing Act.

The Delhi High Court held that the notification issued under the Act of 1947 would be
functioning as it was saved by the saving clause inserted in the repealing Act.

 Fedders Llyod Corpn. vs. Employees' State Insurance Corporation (1975) 48 FJR 287)

Section 66 of the Employees State Insurance Act, 1948 had given a right for reimbursement to
the employees. Allegations came that several employees misutilised this right. Consequently,
the Parliament repealed Section 86, ie. removed the right for reimbursement to the employees,
by the Employees' State Insurance (Amendment) Act, 1968. The Corporation in this case
refused to reimburse the amount for the previous years i.e. 1965 to up to the date of
amendment, contending that the employees had forgone their right for reimbursement.

The Delhi High Court gave judgment in favour of the employees and opined that due to
saving clause inserted in the Amendment Act, 1968 the employees had right to reimbursement
until the date of Amendment.

Distinction between Saving Clause and Exception

SAVING CLAUSE EXCEPTION

1. Saving clause is inserted in the 1. Exception is inserted after the clauses
repealing Act for the protection of or sections.
vested rights under repealed Act

2. Saving clause is used to preserve 2. Exception is used to restrain the

from destruction certain rights, enacting clause to particular case.
privileges, remedies, procedures,
etc already in existence.
3. Exception is limited to the enacting
3. Saving clause affects on entire Act
clause or section

19. OUSTER CLAUSES (FINALITY CLAUSES)

Some Acts contain words like: "shall not be questioned in any court or legal proceedings",
"shall be conclusive", "shall be final", and similar words. The object of these words may be to
make certain proceedings under the Act non-appealable, non-questionable, or irrebuttable.

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These are called finality/ouster clauses. E.g., the Inter-State Water Dispute Act in Sec 11
excludes the jurisdiction of the Supreme Court and other courts in respect of Inter-State water
disputes referred to the Inter-State Water Dispute Tribunal.

However, it is to be noted that in some circumstances the Courts have ignored ouster clauses
and held them to be invalid. E.g., L. Chandrakumar vs. UOI (1997) 3 SCC 261: Under Sec
28 of the Administrative Tribunal Act 1985, jurisdiction of High Courts is barred in matters
decided by Administrative Tribunals. The Supreme Court held that this ouster clause is
unconstitutional.

20. COMMENCEMENT CLAUSE

Commencement = (n) a beginning.

Commencement Clause: = Every statute contains a commencement clause in the first or

second section. It explains when the statute will start functioning. The section contains the
heading 'Short title, extent and commencement'. It explains the title of the statute, extension of
it whether entire country or particular State or area, and also commencement. Examples:

(a) Section 1 (3) of the Industrial Disputes Act, 1947 says: "It shall come into force on the
first day of April, 1947”.

(b) Section 1 (3) of the Arbitration and Conciliation Act, 1996 says: "It shall come into
force on such date as the Central Government may, by notification in the official
gazette appoint.”

In certain Acts, the legislature gives the commencement date directly in the section itself. In
certain Acts, the legislature empowers the Executive to publish it in the official gazette and
treat the date of publication of such official gazette as the actual commencement of the Act. It
is called similar to conditional legislation. The Arbitration and Conciliation Act, 1996 came
into force with effect from 22nd August 1996, when it was published in the official gazette
vide G.S.R. 375 (E), dated 22-8-1996.

(c) Section 1 of the Indian Contract Act, 1872 says: "Extent, Commencement. It extends
to the whole of India except the State of Jammu and Kashmir, and it shall come into
force on the first day of September, 1872".

(d) Section 1 (3) of the Limitation Act, 1963 (Act No. 36 of 1963) says: "It shall come
into force on such date as the Central Government may, by notification in the Official

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 Gazette, appoint." The Act came into force with effect from 1st January 1964 as it was
published in the Gazette of India, Part-II, vide Notification No. S.O. 3118, dated 29-
10-1963.

21.ARTICLES

‘The,’ ‘a,’ and ‘an’ are Articles in the English language. ‘The’ is used before nouns and has
the effect of specifying a particular thing, person, or circumstance. Whereas ‘a’ or ‘an’ has a
generalizing effect - Shree Ishar Alloy Steels Ltd v. Jayaswals New Ltd (AIR 2001 SC
1116).

22. HEADINGS

Headings of a section, a group of sections, a chapter, or schedule may be referred to in case of

ambiguity in the words of the sections, chapter, or schedule. However, headings cannot
control the meaning of the plain and clear words

 Bhinka v. Charan Singh (AIR 1959 SC 960). The landlord wanted to evict the tenant.
Section 180 of the U.P Tenancy Act says that "a person taking or retaining unlawful
possession of land without the consent of the landlord shall be liable to be ejectment."
The heading of Section 180 is ‘Ejectment of person occupying land without title’. The
court held that Section 180 applies only to persons who had no rights of possession,
making it inapplicable to tenancy matters.

In Municipal Corporation for Thane v. ASMA. Co Plastic Industries (1999) 1 SCC C372, it
was held that the classification of goods under different headings under Maharashtra
Municipalities Rules and Bombay Municipal Corp Rules lacks any scientific basis. Hence,
these headings cannot control the meaning to be given to each of such goods.- Forge & Co vs
Municipal Corporation of Greater Bombay (1999)

23. ENACTING CLAUSE:

The enacting clause is a short phrase that introduces the law enacted by the Legislature or
sovereign authority. It declares the source from which the law derives its authority. Usually, it
follows the Preamble. For example, the enacting formula of the Consumer Protection Act
1986 reads: “Be it enacted by Parliament in the Thirty-seventh year of the Republic of India
as follows...”

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EXTERNAL AIDS TO INTERPRETATION

Also called EXTRINSIC AIDS TO INTERPRETATION. There are sources outside the
Act, used while interpreting the Act in cases of ambiguity. There are:

i) Statement of Objects and Reasons

ii) Parliamentary History, debates & speeches

iii) legislative history

iv) Foreign Decisions & Statutes

v) Dictionaries

vi) Text books

vii) Social, Political, Economic Developments, Scientific inventions

viii) Reference to other Statutes

a) Statutes in Pari Materia

b) Previous Legislation & Later Legislation

c) Incorporation or reference of Earlier Act into later Act

d) Codifying & Consolidating Statutes

Let us discuss these in detail:

1. STATEMENT OF OBJECT & REASONS:

It is a document attached to a bill explaining the reasons behind the bill. Helps to understand
the state of law before the Act (history), the mischief intended to be cured, circumstances
which motivated the member to introduce or more the bill or amendment, urgency behind the
bill.

Thus, Statement of object and reason can be used to clarify ambiguity in the Statute. Cannot
be used if words of the statute are plain and clear - Pathumma vs State of Kerala (AIR 1978
S(771)

 Gujarat University vs. Sree Krishna (AIR19635(703) Held that even though
Statement of Object and Reasons give valuable historical materials behind the Act
they must be generally ignored while interpreting the Act. In this case, Statement of

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 object and Reasons to the Gujarat University Act says “….. it is proposed to empower
the University to adopt Gujarati or the national language as the medium of instruction.
But, the Act itself does not actually confer such power to the University. Hence, it was
held that the University had no such power.

2. PARLIAMENTARY HISTORY, DEBATES & SPEECHES

Parliamentary history of a statute consists of the following:

a) Original draft form of the bill

b) Changes underwent by the bill

c) Debates and speeches and discussion in Parliament at the time of introduction of the
bill.

d) Committee reports and Commission reports related to the bill.

According to Maxwell: Parliamentary history is not a permissible aid in interpretation of an

Act. But in exceptional situations may be referred to in order to clear ambiguity in the statute.

 R vs Shivpuri (1986)2 ALL ER 334: Careful reading of Law Commission reports on

an Act will avoid erroneous interpretation of the Act.

 State of Travico vs. Bombay Co. Ltd (AIR 1952 SC (365): Held that speech made by
a member in the course of debate in Parliament indicates only his subjective intent.

 K.S. Paripeorman vs. St of Kerala (1996) 5 SCC 593: Held that speech of the mover
of the bell can be referred to find out the object of the Act Statement made by a
minister (who moved the bill) in Parliament can be referred to understand the mischief
sought to be remedied by the Act, but it could not be used for interpreting provisions
of the Act.

 Indira Sawhney vs. UOI (AIR 1993 SC 477) SC referred to Dr Ambedkar's speech in
the Constituent Assembly while interpreting the expression 'backward classes in
Article16 (4) of the Constitution.

 UOI vs. Harbhajan Singh (AIR 1972 SC 1061): Speeches made in Parliament during
amendment of Wealth-tax Act, 1957 was relied on to support the view that agricultural
lands tome under purview of Wealth tax Act.

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3. LEGISLATIVE HISTORY

Means the background and circumstances behind the Act; the mischief which was intended to
be remedied by the Act.

Maxwell says that "Courts should not to be oblivious to the history of the the Act…. However,
It is useless to make historical enquiry where the words of the Act are clear and admit of only
permissible to if there is one meaning. Its permissible to refer legislative history if there is
ambiguity.

Legislative history is of great use while interpreting amendments. Eg: Mathura rape case,
Delhi Rape case in interpretation of Criminal law Amendments of 1983 and 2013 as these
cases were the root cause of the amendments.

Central Bank of India PS. Rajagopalan Nair (AIR 1964 SC 743) : Supreme Court examined
legislative history of Sec. 33-C of Industrial disputes Act, 1947 in interpreting it.

 Exclusionary Rule-

Traditional view is that even if there is ambiguity in the words of the Statute, Courts should
not refer to Parliamentary debates or Committee/ Commission reports behind the statute. This
was confirmed in Assam Rlys & Trading Co Ltd vs. IRC (1934 All ER(Rep 646) where the
Court refused to look into the Royal Commission Report on Income-tax in order to
understand the meaning of certain words in the Act.

But, the modern approach has weakened the exclusionary rule to a large extent in England
and India. R.S. Nayak vs. A.R. Antulay (AIR 1984 SC 684) Supreme Court referred to reports
of committees and commissions in order to decide whether an MLA is a public servant and
sanction is required to start criminal prosecution under Prevention of Conscription Act. While
construing the expressions “in the pay of government" occurring in the definition of public
servant under Sec. 21 of I'PC, Supreme Court studied various committee reports and held that
MLA is not a public servant.

4. FOREIGN DECISIONS & STATUTES

In India, references are usually made to English and American decisions because they have
the same system of jurisprudence at ours to certain extent. But foreign decisions will not
prevail when the language of Indian statute is clear. Krishna lyer J. succinctly observed in a

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leading case “Bangalore Water Supply Sewrage Board vs A. Rajappa and others" as
follows: "India is India and its individuality in law and society is attested by its national
charter, so that statutory construction must be home spun, even if hospitable to alien thinking"
Yet, the Supreme Court has relied on the decisions of the Australian High Court while
interpreting the term "industry" in S.2(j) of the Industrial Disputes Act 1947, in the above
case. Our law reports contain a large number of cases in which the Supreme Court and various
High Court in India have discussed, relied on and deviated from the decisions of the Courts in
various foreign countries. Where the legislatures in this country enact statutes which closely
resemble and have the same purpose and object in view then unless the expressions used in
the Indian statutes are defined, courts of law cannot go wrong in interpreting them in the way
English judges have done. Further words which have acquired a particular meaning in
England may be given the same meaning unless there is anything in the statute itself which
indicates a contrary intention. For example, the Hindu Marriage Act 1955 is based mainly on
the principles and practice obtained in the Divorce Courts in England. Therefore, in the
construction of this Act the decisions of the English Courts can be well referred to with
advantage. Similarly , the Workmen's Compensation Act 1923 is modelled on the British
pattern. In interpreting doubtful expressions and words in the Act, the Indian Courts made
references to the decisions given by the English Courts.

In Suseela vs. Mohan Das (1975 KL T72) The Kerala High Court in interpreting the term
"cruelty" showed its reluctance to accept the English decisions on "cruelty." The Court
observed that it may not be correct to apply the decisions of English Courts without
appreciating the difference between the law of that country and the provisions of the Hindu
Marriage Act 1955. The English definition of cruelty may inapt to a case under the H. M. Act
because of the departure from the language of the definition in English decisions as to what
amounts to cruelty.

As an extrinsic aid foreign decisions have a significant place. But Indian statutes should be
interpreted with reference to the facts of Indian life.

 Superintendance Co: of India vs. Kristina Murgai (AIR 1980 SC 1717)- Supreme
Court relied on principles of English common law and equity while considering Sec-
27 that of Indian Contract Act and held a service agreement extended beyond the
termination of service is void. Court held that the Indian Contract Act is not a
complete Code in law of Contracts. If an Indian law is based on English law and the

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 rule of English law receives statutory recognition by Indian legislature and such law
cannot be understood without the aid of English law, the Court may refer to English
legal principles to clarify the ambiguity. But principles of English law cannot be used
in contradiction to clear and exhaustive (complete) statutory provisions.

 B.R Enterprises vs St of UP (1999)9 SCC 700: Held that for a beneficent construction
of a statute, precedent foreign statutes may be referred . In this case, while interpreting
Chapter XI of Motor Vehicles Act, 1988; it is precedent English Statute was referred.
(Similarly while interpreting provisions of the KVAT Act, 2003, its precedent, KGST
Act, 1963 is also referred. This is particularly due to the fact that certain common
definitions in both Acts.

5. DICTIONARIES

English Dictionaries and law lexicons are often referred by Courts to find out meaning of
doubtful expressions and words in the statute But in "Bangalore Water Supply Severage
Beard vs. A Rajappa & Ors (AIR 1978 SC 548) it was held that even though dictionaries are,
however helpful in understanding the general sense of the words. cannot control where the
object and context of the Act gives a different meaning to the words. State Bank of India vs.
Sundara Money (AIR 1976 SC 1111): Krishna Iyer J observed that "Dictionaries are not
dictators of statutory interpretation. especially when the meaning of the words should be
gathered from the context, nature and subject matter of the Statute according to intention of
the legislature. Words are after all, merely vehicle to convey the idea of the speaker or writer
and the words have to be construed to fit in with the context of the Act.”

In Lekshmikutty v. Mohandas (1989)2 KLJ512 - Court said that reliance on dictionary

meanings for the words used in a statute also should be with due care and caution. According
to Lord Coleridge , dictionaries are not to be taken as authoritative exponents of the meaning
of words used in Act of Parliament. It is a well known rule of Courts of law that words should
be taken to be used in their ordinary sense.

The practice of relying on the definition of a word given in different statute to understand the
meaning of the same word in another statute is also held as unsafe. Therefore, the court in the
above case refused to follow the meaning given to the words "relative" in the Companies Act
to construe the same word in the Lunacy Act.

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The conclusion is that though dictionaries are not to be regarded as authoritative in regard to
the meanings of the words used in statutes, but they may be consulted.

6. TEXT BOOKS, GOVERNMENT CIRCULARS & PUBLICATIONS

In order to arrive at the true meaning of the words of a statute, Courts may refer to text books
of eminent authors the on the subject. But, it is the discretion of the court whether to accept or
reject the views in the text books however authoristive or longstanding it may be. Article 38
of the Statute of ICJ says that works of highly qualified jurists are valuable sources to of
International law.

In cases involving Hindu law; works of Yajnavalkya, Manu, Kautilya, Vijnaneswara and
Jimutavahana have been frequently quoted with approval. Mulla's works are also frequently
used in cases involving Muslim law.

 In Kesavananda Bharti case (AIR 1973 SC 1461) large number of text-books with
rival views were quoted by both sides. Court held that in view of various opinions and
counter opinions the safest course for the Court was to interpret Keeping in mind
always, the whole context of the issues of the case.

 Ramlal vs St of Rajasthan (2001) 1 SCC 175: Question was whether ‘camel milk'
could be included under Prevention of Ford Adulteration rules, 1955. Supreme Court
referred to a number of books and encyclopedias and had that camel milk contains the
same nutrient content as cow's milk and can be profitably used for human purposes.
Hence it would be included under the said rules.

 Bastin vs Davies (1950) 2 KB 579 : For interpreting the word 'substance', Court
referred to 12th edition of Bell's 'Sale of Food and Drugs.

 In Kesavananda Bharati v State of Kerala, [AIR 1973 SC 1461), a large number of

text- books were quoted by both the contesting parties in support of their respective
rival contentions, but most of the Judges of Supreme Court deciding the case were of
the opinion that in view of many opinions and counter opinions it was not desirable to
follow the opinions and that the safest course for the Court was to interpret keeping
in mind always whole context of the issues.

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CIRCULARS

Courts have considered the official circulars, notifications, orders and statements as external
aids in construction of Statutes unless they do not go against the spirit of statute under which
they are issued.

In Commissioner of Trade Tax, U.P. v. M/s. Kajaria Ceramics Lid [AIR 2005 SC 2968
= 2005

(11) SCC 149] it has been held that "The Circular can be read as a contemporaneous
understanding and exposition of the intention and purport of the Notification. Courts have
treated contemporary official statements as contemporary exposition and used them as
aids to interpret even recent Statutes."

In Collector v Andhra Sugar (1988) 3 Supp. (ACR) 543), it has been held that "it is well
settled that the meaning ascribed by the authority issuing the Notification, is a good guide of a
contemporaneous exposition of the position of law."

GOVERNMENT PUBLICATIONS

Government publications may consist either of the Reports of the Committees or

Commissions or explanatory notes regarding the working of the Act issued by the
Government for the assistance of their officials.

Sometimes, before introducing the proposed law in Parliament, the Government appoints a
Commission or an Inquiry Committee or a Joint Parliamentary Committee or a Study Group
for the study of the background information leading to legislation. Sometimes Government
itself issue a 'White Paper in which the facts leading to enactment of a statute are contained in
detail.

In several cases, the Supreme Court referred to such reports for understanding the surrounding
circumstances and the mischief prevailing at the time of passing of the Act.

 Shriram Chits and Investments (P) Lad. v. Union of India, [AIR 1993 SC 2063], the
validity of Chit Fund Act, 1982 was in question. The Supreme Court referred to the
report of the Banking Committee prepared in 1972, the F 2 report of the Select
Committee of Parliament, the report of the Study Group on Non-Banking Financial
Intermediaries Constituted by the Banking Commission and the Raj Committee

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 Report. The Supreme Court upheld the reasonableness and validity of Chit Fund Act,
1982 by taking into consideration of all these reports.

 Shrimant Shamrao Suryavanshi v. Pralhad Bhairoba Suryavanshi, [AIR 2002 SC

731), the question before the Supreme Court was interpretation of Section 53-A of the
Transfer of Property Act while interpreting the section, the Court referred to the
recommendations contained in the report of the Special Committee set up by the
Government of India and upheld the validity of Section 53-A of the Transfer of
Property Act.

 R.S. Nayak A.R. Antulay, [AIR 1984 SC 684), the Supreme Court held that report of
the Committee, report of Joint Parliamentary Committee and the report of the
Commission constituted for collecting the information leading to the legislation are
permissible external aids to construction of the Act.

 M. Ismail Faruqui v. Union of India, [AIR 1995 SC 602), the Supreme Court has
held that white paper issued by the Government detailing the facts leading to the
enactment of the Statute is also admissible for understanding the background.
Therefore, extensive reference was made by the Supreme Court to the white paper in
understanding the background of Ram Janma Bhumi - Babri Masjid dispute.

In some cases, Supreme Court refused to admit the reports of Commission, Inquiry
Committee, Joint Parliamentary Committee or Study Groups.The Government publications,
specially, documents purporting to lay down explanatory notes for the guidance of the
officials are not at all admitted by the Court for construction of statutes. These have, no doubt,
a great persuasive force in that they represent the views of the persons having special
knowledge of the provisions of the Act, but it is not advisable that the Courts should get
influenced by the official opinion.

 CIT v. Jayalakshmi Rice and Oil Mills Contractor Co., [AIR 1971 SC 1015], it has
been observed that the report of Special Committee appointed by the Government of
India to examine the provisions of the Bill, which later became the Partnership Act,
could not be utilized for interpreting the provision of the Act.

If the words of a Statute are clear and admit of no ambiguity, the Report of the Selection
Committee cannot be looked into for the purpose of giving an interpretation which the words
used in the Statute cannot bear. If, however, there is ambiguity, the report of the Selection
Committee may be looked into as a matter of history to find out what was previous law.

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6. SOCIAL, POLITICAL, ECONOMIC DEVELOPMENTS, SCIENTIFIC
INVENTIONS

During interpretation of statutes, Courts must always refer and be be up to date on the latest
and recent social, economic, political and scientific developments on that subject matter of
that statute.

 Comdel Commodities Ltd vs. Siporex Trade, SA (1990)2 AIIER 552(HL)

Lord Bridge observed: When a change in social conditions produces a novel situation, which
was not in contemplation at the time when a statute is first enacted, there can be no a prior
assumption that the enactment does not apply to the new circumstances. If the language
enactment is wide enough to extend to those circumstances, there is reason why it should not
apply."

Eg- Upto 1955, bigamy used to be common among Hindus. But, Hindu Marriage Act, 1955
prohibited bigamy. Since 1960's, bigamy decreased to a great extent in Hindu community.
Even though bigamy was already an offence under sec. 494 IPC, 1860, it began to be really
treated as an offence after 1955.

Dowry: Up to the independence, the problem of dowry was not threatening. After
independence, the of dowry has been increased. First it started in Hindu community and later
it spread in other disease o communities. Sections 304-8 and 498-A have been inserted int the
Indian Penal Code, 1860. Sections 113-A and 113-B have been inserted int the Indian
Evidence Act, 1872. The objects of these Sections and the Dowry Prohibition Act, 1901 are to
remove dowry from the society. The Courts interpret these sections and Acts with the social
background.

Maintenance: The Old Criminal Procedure Code, 1898 and Section 125 of the new Criminal
Procedure Code, 1973 explains the provisions relating to 'maintenance' to wives, parents and
children. Regarding the maintenance to wives, Section 125 was applied equally to Hindu
wives, Muslim wives, Christian wives. The Courts used to grant maintenance to Muslim
wives. In Molid. Ahmed Khan vs. . Shah Bano Begum (Shah Bano's Case) (AIR 1986 SC
945) case, the Supreme Court upheld the applicability of Section 125 to Muslim wives, and
the grant t of maintenance to Muslim wives.

This caused grievance to the Muslim community. The sensational agitation took place against
the Supreme Court's decision in Shah Bano's Case. The entire Muslim community felt that by

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by the Supreme Court's decision, Section 125 overrides the Muslim Personal Law. Thus a
great controversy arose. The Parliament then enacted an Act -The Muslim Women
(Protection of Rights on Divorce) Act, 1986. This Act nullified the decision in Shah Bano
case and took away the right of maintenance from the Muslim wives.

Therefore, if a Muslim wife files an application for maintenance under 125 of Cr.P.C., the
Courts should consider the social background, and reject the application

Later on, the decision in "Daniel Latifi v. UOI turned the scales again in favour of Muslim
wives by giving a wider interpretation to the provisions of the Muslim Women (Protection of
Rights on Divorce) Act, 1986.. Political developments also relevant in interpretation.

Section 123 of the Indian Evidence Act, 1872 gives certain privileges to the State pertaining
to Affairs of the State. The unpublished communications between the Government officers are
protected by this section. These provisions were inserted in that Act by the then British rulers
with the object to safeguard their imperialistic government. Therefore, the British rulers used
this Section for protecting themselves under the veil of 'secrets of the State' and 'affairs of the
State', In fact, after independence, the independent India does not require this section. In the
democracy, the administration must be transparent. However, the Indian rulers, continued
their ruling in the same footing of the British reign. They did not remove or dilute the rigor of
this Section.

The Courts interpret Section 123 in the changed political system, especially with the
background of the Constitution of India. While disposing State of Punjab vs. Sodhi Sukhdev
Singh (AIR 1961 SC 493), Gajendra Gadkar, J. of the Supreme Court observed: "It may be
that when the Act was passed, the concept of Governmental functions and their extent was
limited, and so was the concept of the words 'affairs of the State' correspondingly limited, but
as is often said, words are not static vehicles of ideas or concepts. As the content of the ideas
or concepts conveyed by respective words expand, so does the content of the words keep pace
with the said expanding content of the ideas or concepts and naturally tend to widen the field
of public interest which the section wants to protect. The change of Courts' attitude in political
matters is reflected in the cases of environmental law, torts, consumerism, human rights,
particularly constitutional law, etc.

There a close relationship between Law and Economics particularly while dealing with cases
involving taxation, contract, company, property, bankruptcy and competition and

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technological. Scientific inventions and developments are also to be considered during
interpretation statutes

Eg: While using the 'Postal' rule in Communication of Acceptance under Sec. 4 of Indian
Contract Act 1872, Courts should come adapt it to modern means of communication like
mobile phones, emails etc. Bhaguandas Goverdhandas Kedia vs Giridharilal Purshottamdas
(AIR 1966 SC 543)

The plaintiffs made an offer on phone from Ahmedabad for the purchase of cotton seed cake
from the defendants. The defendants accepted this offer on phone at Khamgaon. The
defendants having failed to supply the cake were sued by the plaintiffs to pay compensation
amounting to Rs. 31,150 for the breach of contract. The suit was filed at Ahmedabad. The
defendants contended that the Ahmedabad Court had no jurisdiction because the contract was
completed by the acceptance of offer on telephone at Khamgaon. On the other hand, the
plaintiff pleaded that the contract was struck when the acceptance was communicated to him,
who heard the acceptance at Ahmedabad and therefore the suit was within the jurisdiction of
the Ahmedabad Court.

Supreme Court held that the contract was made at Ahmedabad where the communication of
acceptance was made and the Ahmedabad Court had the jurisdiction. It strongly opined that
where the proposal and acceptance are made by letters, the contract is made at the place where
the letter of acceptance is posted and the same principle is applicable to the telephone, telex,
telegram or any other such mode of communication.

PRINCIPLE: Hidayatulla , Chief Justice, said the principle: "Though the law was framed at a
time when telephones, wireless, telestar and Early Bird were not contemplated, the language
of Section 4 is flexible enough to cover telephonic communications. When the words of
acceptance are spoken into the telephone, they are put into the course of transmission to the
offeror so as to be beyond the power of the acceptor. The acceptor cannot recall them. The
communication being instantaneous the contract immediately arises."

The same principle applies in the case of telegram or telex. The contract is complete when the
acceptance is received by the offeror. The contract is made at the place where the acceptance
is received.

While disposing M/s. J.K. Cotton Spg. & Wvg. Mills Ltd. vs. Union of India (AIR 1988 SC
191), the Supreme Court observed: "In a modem progressive society it would be unreasonable

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to confine the intention of a Legislature to the meaning attributable to the word used at the
time the law was made and, unless a contrary intention appears, an interpretation should be
given to the words used to take in new facts and situations, if the words are capable of
comprehending them.

7. REFERENCE TO OTHER STATUTES

When there is ambiguity in the words of a statute it may become necessary to refer to other
statutes to clear the doubt:

a) STATUTES IN PARI MATERIA : "Pari-materia means on the same subject or on

similar topics. Eg - Environment (Protection Act, 1986, Water Pollution Act, 1974, Air
Pollution Act, 1981 are statutes in pari-materia; even though these enacted were as
different times. So, while interpreting any of them, the other two have to be referred and
relied on too. In other words: these three Acts on the same subject have to be treated as a
united whole.

Maintenance: Section 125 of the Criminal Procedure Code, 1973 empowers the Courts to
grant 'maintenance' to wives, parents and children. Section 125 is applicable to Hindu wives.
Section 24 of the Hindu Marriage Act, 1955 also provides the provisions relating to
'maintenance pendente lite and expenses of proceedings' to Hindu spouses. Section 18 of the
Hindu Adoptions and Maintenance Act. 1956 also provides the relief by way of granting
maintenance to Hindu wife. There are certain differences in between these sections, viz. 125,
24 and 18 respectively. If a Hindu wife submits a petition for maintenance u/s 24 of Hindu
Marriage Act, 1955, the Courts also interpret referring Section 125 of the Criminal Procedure
Code, 1973.

Wages: Section 2 (vi) of the Payment of Wages Act, 1936 defines Wages. Section 2 (h) of the
Minimum Wages Act, 1948 defines Wages' Section 2 (rr) of the Industrial Disputes Act, 1947
defines Wages. There are certain differences in between these sections. If a worker files a
petition for wages u/s 2 (vi), the Courts also interpret referring Sections 2 (h) and 2 (rr)
respectively.

 R vs. Laxdale (1758) 97 ER 394 Held that statutes in pare-materia, though made at
different times, even expired or even not referring to each other may be interpreted
together as one system explanatory or each other.

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  Desh Raj Gupla vs. Industrial Inbunal (1991) 1 SCC 249- Held that when Statutes
are in pari-materia, relevant decisions under one may also apply to the other.

Many judicial decisions under Income tax Act are also applicable under Wealth-tax
Act especially those relating and to evasion and penalties.

 Jugal Kishore vs. St. of Maharashtra (1989 Sup (1) SCC (589). A large portion of the
appellants land was seized by govt. as 'surplus land' under Maharashtra Agricultural
Lands (Ceiling) Act, 1961.

 R vs. Loxdale (1758)97ER 394

Held that-Statutes in pari-materia, though made at different times or even expired, or

not referring to each other may be interpreted together one system explanatory or each
other.

 Desh Raj Gupta vs Industrial Tribunal (1991) 15CC 249

Held that when Statutes are in 'pari-materia, relevant decisions under one may also
apply to the other.

Many judicial decisions under Income-tax Act are also applicable under Wealth-tor
Act especially those relating to evasion and penalties.

 Jugal Kishore vs. St. of Maharashtra (19895up (1)SCC589)

A large portion of the appellant’s land was seized by government as ‘surplus land'
under Maharashtra Agricultural Lands (Ceiling) Act, 1961. Appellant contended that
the seized

surplus' land was already leased out under Bombay Tenancy & Agricultural Lands
Act, 1958-and hence the seizure was contrary to law.

Supreme Court considered both Acts of 1961 and 1958 in pari-materia and held that these
were different Acts operating in same filed. But, the object of ceiling Act 1961 was to
implement Constitutional guarantee against concentration of wealth under Art 39. From the
facts of the Case it is evident that the lease was not genuine and made in anticipation of the
1961 ceiling law. Hence, the declaration and seizure of surplus land is valid.

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Court held that the basic principle of Statutes in pari-materia is that the construction of the
provisions of two Acts must relate to the provisions of two Acts must relate to the same
person or same thing or same classes of person or things. If the Acts contain provisions quite
different with each other then they cannot be called as statutes in pari-materia.

 Gwalior Rayons Silk mfg (Wug) Co: vs. Curiadian of Forests Palghat (1990 suppl SCC
785)

Appellant company had acres of eucalyptus plantations in Kerala. There were acquired by
govt under Kerala Private Forest Act, 1971. Appellant contended that under Kerala Land
Reforms Act, 1961. the definition of 'private forests' excluded private plantations. Also
contended that the KPF Act, 1971 and KLR Act should be read as statutes in pari-materia.

Supreme Court rejected these contentions and held that-taking into consideration on the
objects, nature and scope of both Acts, these cannot be considered as Statutes in Pari-materia.
KPF Act is special law, whereas KLR Act general law. The ambit and scope of the
definitions-private forests and 'agricultural crop' occurring in both are quite different.
Moreover, there is distinction between private forest in Travancore Cochin area and Malabar
area. Hence, it is inappropriate to transplant the meaning given to Private forest in KLR Act to
KPF Act.

b)PREVIOUS & LATER LEGISLATIONS- Cases of ambiguity while interpreting an Act; it

may become necessary to refer and rely on laws and amendments passed before and after the
particular Act.

Reference to previous legislation and its judicial decisions done only when the intention of the
legislature is unchanged.

Egs:- Kerala General Sales Tax Act, 1963 and i was repealed in 2003 and replaced by Kerala
Value Added Tax Ad, 2003. However, several definitions in both Acts are the same.
Similarly, Trade and Merchandise Marks Act, 1958 and Trade Marks Act, 1999; Gout of
India Act, 1935 and Indian Constitution. 1950.

Reference to later legislation may be made taking into consideration: changed circumstances
and judicial decisions. According to Maxwell , if the provisions of a later law is repugnant
with those of an earlier law; then may be treated as abrogated by the later law. In other words;
in such a situation; the later law should be given priority. Zaverbhai Amai das vs. St. of

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Bombay AIR1954 SC 752)-Held that if a later statute again describes an offence created by
the previous one, and imposes procedure, a different punishment or procedure, the earlier
statute is repealed by the later. But, this is not an absolute rule. Eg: It is a general
Constitutional guarantee that criminal laws with enhanced punishment should not be given
retrospective effect.

c) INCORPORATION OR REFERENCE OF EARLIER ACT INTO LATER ACT-

Sometimes a later Act may expressly provide for reference to an ealier Act. In such an
situation, the provision referred the earlier Act shall be treated as part and parcel of the
later Act.

Eg:- The definition of 'Public Servant' in Sec. 21 & IPC has been referred to in many other
Acts.

 Mahindra & Mahindra Hd ys UOI. (AIR 19795(798)

It is to be noted that while referring to an earlier Act. the amendments to the earlier Act
should also be taken into consideration. The Parliament enacted the Monopolies and
Restrictive Trade Practices Act, 1969 to restrain the monopolies in the trade. By that Act the
Central Government established the Monopolies and Restrictive Trade Practices Commission
(MRTPC), Section 55 of 1969 Act provides for an appeal to the Supreme Court against the
decisions of MRTP Commission on one or more of the grounds specified in Section 100 of
the Civil Procedure Code, 1908.

(The Parliament amended Section 100 of the C.P.C., 1908 by the C.P.C. Amendment Act,
1976 restricting the provisions of appeal.)

The appellant company was an automobile manufacturer. The MRTPC gave judgment against
the appellant. The appellant-company preferred an appeal under Section 100 of Civil
Procedure Code, 1908 as was referred by Section 55 of M.R.T.P.Act, 1969.

The Union Government contended that the appellant had no right of appeal as per the
amended Section 100 of C.P.C.

The Supreme Court negatived the contention of the Union Government.

Held that the M.R.T.P.Act, 1969 was constructed in the year 1969 and Section 55 of it
referred Section 100 of the Civil Procedure Code, 1908. At that time, Section 100 gave

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widened scope for appeals in general, The Parliament also wanted to give an opportunity to
the aggrieved party by the decision of MRTPC to appeal to the Supreme Court with widened
scope, However, in 1976 Section 100 of C.P.C. was amended narrowing the chances of
appeal. This was not anticipated by the legislature, when they enacted the 1969 Act. Hence
the amended provisions of Section 100 of C.P.C. would not apply to Section 55. The
appellant had a right to appeal to the Supreme Court. Thus, the amended Section 100 of
C.P.C. has no effect upon Section 55 of 1969 Act.

d) CODIFYING & CONSOLIDATING STATUTES

According to Ilbert, a Code is a text-book enacted by the Legislature. Maxwell says

Codifying statute is one which purports (appears/claims) to state exhaustively the whole of a
law on a particular subject, the draftsman attempting to subsume both pre-existing statutory
provisions and common-law rules relating to the subject matter. Also takes into account ,
judicial decisions on the subject.

Halsbury - It is an orderly and authoritative statement of leading rules of law on a given

subject. Eg Indian Penal Code. CPC, CrPC. Transfer of Property Act. Hindu Succession Act.

Codification (n.) =Codification is the systematizing of laws already in existence. It also

means collection, compilation, methodical and systematic arrangement of laws in the State.

Almost all modern countries adopted the system of codification. Jeremy Bentham is called the
Father of Codification'. In India, the First Law Commission was appointed in 1834 by the
Charter Act of 1833. Lord Macaulay was the Chairman. Since then, the codification of laws
started in India. The Indian Penal Code was passed in 1860. Later the Criminal Procedure
Code, 1868; the Civil Procedure Code, 1908, etc. were enacted. The Third Law Commission
of India codified several Acts. It was 'the Golden Period of Codification' in India. After
achieving independence too, Law Commission was constituted and still is functioning most
effectively codifying the laws.

Codification systematizes case-law as well as statutes. In a body of codified law, no one

statute should be so construed as to render the express provisions of another statute absolutely
no force.

 Pioneer Aggregates (UK)td vs. Secretary of state for Environment (1984 ) 72 All ER

Held that a Code is self-contained and complete and that marks the distinction between a
Code and an ordinary Act. Where is code is silent or ambiguous on certain matters , Court

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may refer to principles of private law, common law and equity principles. But such Code
cases are exceptional. If the code covers the situation completely, judges cannot rely such
principles on in order to obtain a fairer solution.

 Mumbai Kamgar Sabha. Abdul Bhai Faizulla Bhai (AIRI 9765 (1455) Sometimes, a
codifying statute may be a Code only with respect to a particular branch of a subject.
In this case. It was held that the Payment of Bonus Act 1965 does not cover all
categories of bonus and deals completely only with 'profit bonus'.

Consolidating statute is a compilation [systematic, orderly arrangement) of earlier laws.

It simplifies and adopts the earlier statutes in modern language and according to changed
circumstances. Purpose of Consolidating statute is to present the whole body of on a subject
in a complete, up to date form while doing so, it repeals [cancels] the earlier laws on It
simplifies the repealed earlier laws and makes it up to date. Maxwell says "Consolidating
statute is one which collects the statutes relating to embodies a particular topic and them into
making only a single Act making only minor amendments and improvements.”

In case of purely consolidating statues, the presumption is that it does not intent to alter the
existing law on subject. In case of consolidating and amending statutes; there may be
intention to make some changes in existing law.

A consolidating statute is not a mere compilation of earlier enactments. The object of the
consolidation is to make a useful Code which should be applicable to the circumstances
existing at the time when the e Consolidating Act is passed. For this object, all the statutory
laws bearing upon a particular subject is collected and is transformed into a useful Code.

In the case of purely consolidating statutes the presumption is that such a statute is not
intended to after the law. Therefore, it is relevant to refer to the previous state of the law or to
judicial decisions interpreting the repealed Acts for purposes of construction of corresponding
provisions in the Consolidating Act. The question of construction of a Section in a
Consolidating Act may for or this reason be really a question of construction of an earlier
Statute/Act in which that Section first appeared, and it may be necessary to refer to the
various Acts in the series as also to the common law existing at the time when the earlier Act
was enacted.

The provisions contained in a consolidating statute may have their origin in different
legislation, and if between two such provisions, inconsistency occurs it may be legitimate to
refer to respective dates of their first enactment for resolving inconsistency.

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A Consolidation Act should be interpreted according to normal cannons of construction and
recourse to repealed enactments can be taken only to solve any ambiguity, for the process of
consolidation would lose much of its point if whenever a question as a construction of a
consolidating Act arose, reference had to be made to the statutes which it has consolidated
and repealed. For the construction of a Consolidation Act, the primary rule is to examine the
language used in the Act itself without any reference to the repealed statutes. When the
Consolidation Act gives no guidance as to its proper interpretation only then it is permissible
to refer to the repealed enactments for guidance. But when the consolidation Act is not
ambiguous or obscure recourse to repealed enactment should not be done.

Egs: Arbitration and Conciliation Act, 1996 is a consolidating Act. The Long Title of the
Arbitration and Conciliation Act, 1996 runs as follows: "An Act to consolidate and amend the
law relating to domestic arbitration, international commercial arbitration and enforcement of
foreign arbitral awards as also to define the law relating to conciliation and for matters
connected therewith or incidental thereto”

The 1996 Act is a consolidating Act, because, it consolidates,-

(a) the law relating to domestic arbitration i.e. arbitration for the matters within India;

(b) the law relating to international commercial arbitration;

(c) the law relating to the enforcement of foreign arbitral awards

(d) the law relating to conciliation; and

(e) the law relating the matters or incidental for all the above.

OBJECT: Consolidating statutes are a compilation of earlier enactments. It simplifies the

former statutes in modern language so that it can be adopted to the changed circumstances.
The purpose of consolidating statute is to present the whole body of statutory law on a subject
in complete form, repealing the former statute.

Distinction between Codifying Statutes and Consolidating Statutes

The distinction between these two is very pointed. Odgers in his The Construction of Deeds
and Statutes treats both of them on the same level. He says that there is no difference in
between them. For him, the language used in the statute is very much important rather than
classifying into codifying statutes and consolidating statutes. However, there are certain
differences in between them as follows:

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 CODIFYING STATUTES CONSOLIDATING STATUTES

1. Codifying statutes systematizes case-law 1. Consolidating statutes is the combination

as well as statutes. of of the statutes relating to a given subject-
matter. It does not contain the case-law.

2. A consolidating statute should be

2. A codifying statute should be interpreted
interpreted according to the normal canons
according to the normal canons of
of constructions and recourse to repealed
constructions and recourse to repealed
enactments can be taken only to solve any
enactments can be taken generally to solve
ambiguity.
any ambiguity.

3. While constructing the codifying statute, 3. The primary rule of construction of a

the language used in the statute is examined consolidating statute is to examine the
in the context, but at the same time, the language used in the statute itself without
repealed statutes may also be referred. any reference to the repealed statutes.

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 CHAPTER 5

PRESUMPTIONS

To presume means to regard a fact as true until it is disproved. Presumptions are a result of
human experience and natural reasoning. Presumptions are of great convenience in the
process of interpretation of statutes. Presumptions may be in favour of a person or against
him. If a presumption is in favour of a person, then he is discharged from initial burden of
proof in other words; the initial burden of proof shall be on the opposite party. Eg:- Every
person is presumed to be innocent until proved guilty (under general criminal law). Almost all
presumptions are rebuttable (permitted to be disproved). If a presumption is against a person,
then he has the initial burden of proof. Eg: Under income tax and wealth tax laws, assets,
money, etc recovered during search (raid) are resumed to belong to the assesse himself.

The following are the most important general presumptions followed during interpretation of
statutes:

1) PRESUMPTION OF CONSTITUTIONALITY

Constitution is the mother of all laws in a country. All Acts, rules, notifications, orders, etc,
passed in a country must conform with the constitution. In other words, all laws in the country
should not violate any provision of the Constitution, particularly the fundamental rights and
freedoms. Otherwise, such laws shall be declared as unconstitutional.

In interpretation of statues, there is a legal presumption that, an Act is constitutionally valid.

In other words, where a law is being challenged before the court, the court will prima- facie
presume that the law is not violative of the constitution and that it does not exceed
constitutional powers. Thus, the court must prima-facie presume that the legislature did not
intend to make a law which is violative or ultra vires (beyond the powers) the Constitution.

 Ram Krishna Dalmia vs Justice Tendulkar(AIR 1958 SC 538)

Supreme Court held that: a) there is always a presumption of constitutionality of an Act.

Therefore, the initial burden is on that person who challenges it, to prove that it is
unconstitutional.

b) When two interpretations are possible, the court should adopt that interpretation which
will save the Act from the attack of constitutionality. Thus, an interpretation which

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 would make the Act valid should be preferred than an interpretation which would
make the Act void. Diamond Sugar Mills Ltd vs State of UP (AIR 1961 SC 652 )

 Dr. K.R Lakshmanan vs State of Tamilnadu(1996)2SCC 226]

Presumption of constitutionality is not applicable where the Act is prima-facie discriminatory

and arbitrary.

 D.T.C vs DTC Mazdoor Congress [(1991)Supp.1SCC600]

If the words in a statute clearly and unambiguously violate the constitution, courts cannot
blow life into it to save it from unconstitutionality.

 Khyerbari Tea Co. vs State of Assam(AIR 1964)SC 925

If a statute is shown to invade freedom of trade under Art.301; burden lies on the state to
prove that the restrictions are constitutionally reasonable.

TESTS TO DETERMINE CONSTITUTIONALITY OF A STATUTE:

1) The first is whether the statute is directly in respect of the subject covered by any
articles dealing with fundamental rights or incidentally touches it.
2) The second test is the reasonableness of the statute.
3) The third test is the real effect and impact of the impugned legislation on the
fundamental rights.
4) Whether it is ultra vires the Constitution.
5) Whether it has been enacted in violation of the Constitutional procedure.
6) Whether it is a colourable exercise of power, or fraud on the Constitution.
7) Whether the pith and substance of the subject-matter is within the legislative
competence of the particular legislature.

EFFECTS OF UNCONSTITUTIONALITY OF A STATUTE:

A statute once declared unconstitutional by the competent Court no longer remains operative
and becomes void for all purposes. The legislature cannot directly override the decision, nor
can it pronounce the validity of the acts done under that statute. It is, however, competent to
the legislature to promulgate a new law providing that anything done under the offending
statute shall be deemed to have been done under the new law and subject to its provisions.

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In Rai Ramkrishna v. State of Bihar, [AIR 1963 SC 1667], it has been held that "If a law
passed by a legislature is struck down by Courts as being invalid for one infirmity or another,
it would be competent to the appropriate legislature to cure the said infirmity and pass a
validating law so as to make the provisions of the said earlier law effective from the date
when it was passed."

2) PRESUMPTION AGAINST VIOLATION INTERNATIONAL LAW

International law may be generally defined as a body of customary and conventional rules
[written and unwritten] followed by civilized states in their intercourse with each other. Even
though it does not have the strength and binding force of municipal law [national law]; it by
considered highly unavoidable by countries of the world due to mutual courtesy, convenience
and inter-dependence. A legal presumption to be followed during interpretation of statutes is
that the statute does not intend to violate principles of International law. Thus, it is presumed
that the legislature intends to respect rules of International law and does not intend to cover
foreigners and foreign property outside its jurisdiction. Thus, the initial burden of proof is on
him who alleges that the statute is violative of international law.

International conventions (Treaties) are the main sources of international law. while
interpreting statute court may rely on treaties which are not inconsistent with our constitution;
whether India is a party to the treaty or not. During interpretation of statutes, the court shall as
far as possible try to interpret it in conformity with International law. Where two
interpretations are possible, that interpretation which is not contradictory with international
law should be preferred. But this is not an absolute rule.

However, this presumption is not applicable where the statute is blatantly violative of
International law.

Article 51 of Constitution says that state shall try to foster respect of International law and
Treaty obligations.

 Jolly George Varghese vs Bank of Cochin (AIR 1980 SC 470)

It was held that ICCPR (International Covenant on Civil and Political Rights) is binding on
Indian courts because India has signed it. In this case, it was held that a person cannot be
imprisoned merely due to inability to fulfil contraction liability.

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 Gramaphone Co. Ltd. vs Birendra Bahadur (AIR 1984 SC 667)

In case of conflict between International Law and Municipal Law, Municipal Law must be
given effect to.

3) PRESUMPTION AGAINST CHANGES IN COMMON LAW.

Common law means the general law of the country. It is different from special, personal or
religious laws and principles of equity and natural justice. Egs:- of Common law principles:-

 No private land shall be acquisitioned the State without giving adequate compensation

 No person shall be detained by police illegally.

 Law does not compel to do impossible acts.

 Mens rea is required in criminal Acts.

 Person arrested to be produced before Court within 24 hours.

 Legislature is competent to enact a statute and does not make omissions or mistakes.

 Courts have jurisdiction to try cases within its territory and subject-matter.

While interpreting statutes, the Court must presume that the Legislature is aware of the
common law and does not intend to change it indirectly. Thus, initially, the court should
presume that the statute is not violative of common law and does not intend to change the
existing common law. Initial burden of proof is on the party who alleges such change or
violation of common law. However, this presumption is not applicable where the statute is
prima- facie violative of common law.

4) PRESUMPTION AGAINST INTENDING INJUSTICE / ABSURDITY/

INCONVENIENT/ UNREASONABLE RESULTS

When the language used in the statute, leads to two meanings; the Court must adopt that
meaning which is just, logical, convenient and reasonable. The meaning which leads to
inconvenient, unreasonable, absurd and unjust results must be avoided. This is based on the
presumption that the legislature never intends absurd and unjust results. The golden rule of
interpretation is based on this presumption. However, some judges have maintained that if the
words of a statute are clear and unambiguous, it should be given effect to, even though it may
lead to absurd results. According to them; it is the duty of the Legislature to remove the
absurdity or injustice, and not the duty of the court.

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 Lee vs. Knapp

It was held that the words "driver of a vehicle "shall stop if an accident occurs: should be
interpreted as “shall stop until the authorities arrive."

 Qaiser Jehan case

It was held that the provisions in the statute which permitted appeal "within 6 months from
the date of the collector's order should be understood as " within 6 months from the date of
knowledge of the collectors order.

 Rajan Jaya Singh vs Bajjanath Singh (AIR 1954 SC 749)

Held that if the language of the statute is very plain, clear and unambiguous, court shall give
effect to it even if it causes injustice, hardship and inconvenience. In this case the appellant's
election was held to be valid even though he had exceeded permissible election expenditure.
Court accepted this contention that the extra election expenditure was taken by his father and
not by the appellant personally. Court held that even though such an interpretation would
cause injustice to poorer candidates, the remedy must be provided by Parliament and not by
courts.[This case can be cited for Literal rule of interpretation too.]

East India Company Act, 1780 protected Magistrates from wrongs or mistakes committed by
them during discharge of duties. It was held that this protection would be available only if
they were acting bona fide. [This illustration can be cited for "Rule of Bona Partem “too].

A statute says that a person who has been convicted for assault and has suffered the
punishment shall be released from all proceedings for the same offence. It was held that this
section cannot protect him from a fresh charge of manslaughter if the assaulted person died
later as a result of the assault. Any other interpretation would defeat the ends of justice.

 Marshall vs Ericson Telephones Ltd.(1964)

Factories Act laid down that "gangways" are to be "kept free from any obstruction". Held that
this section should be interpreted in a practical manner. Therefore, for a trolley placed in the
gangway for a little while for the purpose of unloading materials was held to be not an
obstruction.

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 In Re B (An infant) (Maxwell D 201)

An Adoption Act provided that in order to adopt a child, it should be "continuously in the care
and possession of the applicant for at least 3 consecutive months immediately before the date
of the adoption order. Court held that the period of the child's attendance at school or the
period during which it was left for a short time in the care of a servant, relation or neighbour
will not affect the 'continuity' period.

5) PRESUMPTION AGAINST EXCEEDING TERRITORIAL NEXUS

There is a legal presumption that a statute does not intend to have extra territorial operation.
In other words, courts shall presume that a statute is intended to operate only within a defined
territory in which it is authorized to operate. Eg:- Under Article 245 of the constitution,
Parliament has power to make laws for the whole or any part of India and a state has power to
make laws for the whole or any part of the state. Thus, Central laws are presumed to be
applicable within the whole territory of India and the State laws are presumed to be applicable
within the concerned State only. Eg:- Kerala Value Added Tax Act, 2003 cannot be presumed
to be applicable to Karnataka or Tamil nadu. It is presumed to be limited to sales and
purchase of goods within the State of Kerala.

However, if an Act expressly confers extra- territorial operation, then it must be respected.
Eg:- Article 245 of the Constitution expressly says that a law made by Parliament cannot be
challenged on the ground that it has extra- territorial operation. Section 3 of IPC grants extra-
territorial jurisdiction to Indian criminal courts to try Indian citizens for offences committed
outside India and to try offences committed in Indian ships and aircrafts.

Sometimes, extra territorial operation of statutes may be strongly implied in the facts and
circumstances of the case.

* RMDC Case, in which it was held that State of Bombay had jurisdiction to tax a
newspaper published in Mysore, because the newspaper was circulated in Bombay.

Thus, the general rule is that, where two interpretations are possible, one which permits extra
-territorial operation and another which does not permit extra territory operation then the
second one should be adopted. But, this is not an absolute rule.

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6) PRESUMPTIONS RELATING TO JURISDICTION OF COURTS –

There are two presumptions in this regard:

i) Presumption against ousting established jurisdiction and

ii) Presumption against creating new and enlarged established jurisdiction.

Accordingly, in the absence of express and clear language, the courts should presume that a
statute does not intend to oust established jurisdiction of courts or to create new and enlarged
jurisdiction of existing courts. However, where the words of a statue clearly and
unambiguously oust, confer or enlarge jurisdiction (either expressly or impliedly) then they
must be given full effect.

7) SOME OTHER PRESUMPTIONS

a) PRESUMPTION AGAINST IMPAIRING OBLIGATIONS OR

PERMITTING ADVANTAGE FROM OWN WRONG-

While interpreting statutes, courts must presume that the legislature never intended any person
to impair his obligations or to take advantage of his own wrong. An interpretation which leads
to such absurd and unjust result must be avoided, as far as possible.

This presumption is a part of the presumption against intending injustice/ absurdity/

inconvenient/ unjust results. Based on the maxim "jus ex injuria non oritur"( no one can take
benefit of his own wrong/fraud).

Egs:- A person who knowingly enters into an illegal contract cannot later on sue for the
enforcement of that contract. A husband who created sufficient cause for the wife to leave
him, cannot file a suit for restitution of conjugal rights. This presumption is also applicable to
persons who try to take advantage of loop holes in the law.

b) PRESUMPTION THAT LEGISLATURE DOES NOT WASTE IT'S WORDS OR

USE SUPERFLUOUS WORDS (TAUTOLOGY)

There is a presumption that the legislature inserted every part and every word in a statute for a
definite purpose. Therefore, courts should not reject any part or word as superfluous and
unnecessary. Each and every part and word should be given effect to so far as possible-
Mithilesh Singh vs Union of India (2003)3 SCC 309)

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  Re Mall Ramaiah (AIR 1956) AP 56)- Section 27 of Indian Evidence Act, clearly
states that statements made by an accused to a police officer, which leads to discovery
of important facts related to the crime, may be used as evidence. It was held that, as
the legislature had used the word 'accused', this section does not apply to a person who
was not an 'accused' at the time of giving the statement.

c) PRESUMPTION THAT WORDS ARE USED IN ORDINARY SENSE

It is presumed that words in a statute are to be understood in their natural, ordinary popular
meaning, unless the statute itself says that it has another different, technical meaning.

d) PRESUMPTION THAT LEGISLATURE KNOWS THE RULES OF

GRAMMAR [Presumption as to legislative prudence, Presumption that legislature does
not make mistake.]

As all of our statutes are in English language, there is a presumption that the legislature knows
and understands the rules of English grammar. Once the court is sure that there are no
grammatical errors and the language properly represents the intention of the Legislature, it
may proceed to interpret accordingly. But sometimes mistakes in sentence formation, parts of
speech, tense or punctuations may give a result opposite to legislative intent. In such a
situation court can interpret according to object and spirit of the law. Balaji kondaji Garad vs
Nasik Merchants Co-op Bank Ltd(1984)2 SCC 50- Legislature is presumed to use
appropriate words to manifest its intention.

e) PRESUMPTION THAT LEGISLATURE KNOWS EXISTING LAW AND

JUDICIAL DECISIONS

Legislature is presumed to know the existing state of law and related judicial decisions.

Bengal immunity Co. Vs State of Bihar (AIR 1955 SC 661)

Where any words of a statute was interpreted by the court and that statute was repealed and
re- enacted using the same words, it shall be presumed that these words will have the same
meaning given by the courts earlier. It is presumed that the legislature has accepted the
judicial interpretation of these words in the re-enacted statute, in the absence of clear intention
to the contrary.

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f) PRESUMPTION AS TO RE-ENACTMENT

The re-enactment presumption in statutory interpretation stands for the proposition that where
certain words have been interpreted by a court in a particular way and where the legislature
subsequently repeats those words without any alteration in a subsequent statute, the legislature
can be taken to have used them according to the meaning which a Court of competent
jurisdiction has given to them.

g) PRESUMPTION AGAINST RETROSPECTIVITY

General presumption is that a law should affect only future actions and not the past. This is
particularly strong in case of statutes creating new offences or enhancing liability of existing
offences or takes away or impairs vested rights. Article 20(1) of constitution also provides
protection from Ex Post facto laws. Substantive laws/ declaratory statutes are presumed to be
prospective, unless there is clear contrary intention. Procedural laws are presumed to be
retrospective unless there is clear contrary intention.

h) PRESUMPTION THAT VESTED RIGHTS NOT AFFECTED

Vested rights i.e. rights which a person possessed at the time the statute was passed, are not
taken away without express words, or necessary implication or without compensation.

In Golaknath vs State of Punjab - Supreme Court applied prospective overruling and held
that the decision of this case would not affect vested rights acquired through past transactions.
It would apply only to future transaction.

i) PRESUMPTION THAT ERRORS TO BE RECTIFIED

It is presumed that drafting errors maybe rectified (corrected) by the court during
interpretation of the statute.

j) PRESUMPTION AGAINST EVASION

There is a presumption that courts will prefer that interpretation which advances the remedy
and suppresses the mischief and not that interpretation which will help a person to escape
through loop- holes of law.

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k) PRESUMPTION THAT WORDS SHOULD BE UNDERSTOOD ACCORDING TO
SUBJECT MATTER/ PRESUMPTION AS TO CONTEXTUAL PROPRIETY

Words of a statute, in case of doubt are to be understood in a sense in which they best
harmonize with the subject matter of the statute.

* Public Prosecutor vs Oie Hee Koi(1968)AC 829 at 860

Malayan Internal Security Act makes it an offence for "any person" to have in his
possession....in a security area, firearms, ammunition or explosives." Court held that, it is not
applicable to 'military persons'.

l) PRESUMPTIONS AS TO REFERENCE TO EARLIER AND LATEST

STATUTES

Reference to earlier and later statutes may be made only in ambiguous situations especially if
the statutes are in 'pari materia' (similar or same subject matter). In such a situation, it may be
presumed that the earlier is an explanation or clarification of the later Act or vice-versa.

m) PRESUMPTION AS TO MENS REA IN A CRIMINAL ACT

Unless there is express or strong implication in a statute, it shall be presumed that a person
cannot be punished for an offence unless his mens rea (guilty intention) is proved.

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 CHAPTER 6

TYPES OF STATUTES - THEIR OPERATION AND

INTERPRETATION

Statutes are of several kinds. Therefore, courts should take into consideration, their nature and
operation, while interpreting them.

Types of statutes which require special attention during the process of interpretation are:

1. Statutes Affecting Crown/State

2. Statues Affecting Jurisdiction of Courts

3. Codifying, Consolidating & Amending Statutes

4. Repeal Statutes

5. Perpetual & Temporary Statutes

6. Statues in Pari-Materia

7. Retrospective Statutes / Ex-post Facto Laws

8. Delegated Legislation

9. Procedural & Substantive Law

10. Constitution

11. General Clauses Act, 1897

Let us discuss these in detail:

1. STATUTES AFFECTING CROWN/STATE

The earlier rule of English law was that king can commit no wrong. Therefore, no statute
could bind or make liable the king or the sovereign authority of a State. The rule was justified
on the basis of public policy and for the efficient, unimpaired functioning of the government.
This rule used to be followed in India and other Common- wealth countries too.

But, with the shift in the concept of 'Police-state' to 'Welfare State; this rule has been
weakened. There were two views in this regard:

A) No statute can bind the Crown State unless expressly made bound in the statute

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 B) All statutes bind the Crown / State unless expressly / impliedly exempted in the Statute

There is also another view that the Crown/State can be vicariously liable for wrong of its
servants only if the wrong was committed during the exercise of non-sovereign functions
[Non- sovereign are functions which can be carried on by private individuals too .Eg: State/
Crown cannot be made liable for wrongs of its servants during performance of sovereign
functions [Sovereign functions are functions which can be carried on by State/ Crown alone
Eg.. Defence, Police, Foreign relations, etc].

However, this distinction between sovereign and non-sovereign functions is now wearing
away in modern welfare States.

IMPORTANT POINTS & CASE-LAWS:

 Articles 285, 287, 288 and 289 of the Constitution, says about Immunity of
Instrumentalities. Accordingly, the Central government and State governments cannot
tax each other. Central government properties are immune from State taxes, and State
government properties are immune from Central taxes

 The CPC grants certain special privileges to Government Egs- Sec 80 notice ,privilege
or priority of government debts in execution proceedings

 Province of Bombay vs. Municipal Corporation of Bombay (AIR 1947 PC (34):

Privy council held that Government was not bound by Statutes.

 Director of Rationing vs. Corpn of Calcutta (AIR1960 SC 1355): Director of

Rationing used a building for storing flour, rice, etc. Under the Act, Corporation
licence was required to do so. But, the Court held that the Director of Rationing is
agent of tho State, therefore no need to take licence. It was held that State is not bound
by a statute unless it is provided in express terms or by strong implication.

 Supdt & Remembrancer of Legal Affairs. W Bengal vs. Corpn of Calcutta (AIR
1967 SC (997): State was carrying on daily market trade without licence from
Corporation. In this case, the Court overruled the decision in Director of Rationing
case and held that State should take licence as required by the by the Act. It was held
that State is bound by a Statute unless exempted in express terms or by strong
implication.

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 Province of Bombay Vs Municipal Corpn of Bombay (1947)

Government permitted the municipality to lay down water-pipes through government

land. The Municipality had power to carry water-mains inside and around the cutye
The Court held that the government was not bound by the Municipalities Act.

 Union of India vs. Jubti (1968): Under a statute, a tenant could acquire propriety
rights in the land by paying compensation to the land owner. Court held that this
statute also applies to government-lands because the statute had not expressly or
impliedly excluded government land.

 Stale of Maharashtra vs. IMA (2002): Under the Maharashtra University of Health
Science Act, 1998, all applications for opening a medical college should be filed by
management before the University. The question was whether this Act applies to
government, if it wants to open a government medical college.

Court held that the government is not bound by the Act because the term 'management
refers only to private management. Hence, government is xcluded from the operation
of the Act.

 State of Bihar vs Sonabati kumari (1961)

Held that State is bound by CPC just like an ordinary party to a suit; subject to special
provisions.

 Samatha vs St. of A .P(1997)-

Held that the word 'person' in AP Scheduled Area Land Transfer Regulations, 1959
which prohibits any person to transfer land to non-tribals, includes 'State' too.

 Lucknow Devpt Authority vs M.K. Gupta (1994)

Held that Consumer Protection Act, 1986 is applicable to Government/semi

government /statutory bodies/ local authority in the same way as it applies to private
persons. Because the Act does not expressly exclude the Government from its
purview.

 Hindustan Steel Works Ltd vs. St. of Kerala (1997)

In this case, a company fully owned by Central Government was held to be bound by
the Kerala Construction Workers Welfare Funds Act, 1939; even though the Act was

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 not applicable to Central government. This is because, the Act is a Welfare
Legislation. Article 285 of Constitution has no application in such cases.

 Art. 299 of the Constitution lays down certain conditions to be satisfied in case of
contracts with the Government. A person who does not satisfy these conditions cannot
enforce the contract against the government. However; it has been held in in various
cases in certain circumstances; a Govt will be bound by its contract even though the
conditions laid down in Art 299 are not satisfied.

 State of West Bengal vs. B.K. Mondal. (AIR 1962 SC 779)

It was held that Government has quasi-contractual liability under Contract Act, even
though the contract does not satisfy Art 299. In this case; 'X' constructed a building for
Government. The contract not did satisfy Art. 299 conditions. But, the building was
occupied and used by government servants. Court held that the Government was
bound to compensate 'X' for the work done by him.

 Motilal Padampat Sugar Mills vs. State of U.P (1979) 2 SCC 409

If the Government made a promise and a person acted upon the promise; then the
Government cannot withdraw it's promise; on the ground that there is no contract as
per Art 299 of the Constitution. In this case the Government had declared 3-year tax-
holiday for new industrial units. The petitioner started a vanaspati unit relying on his
promise. The government withdrew the tax-holiday pre-maturely.

The Court held that the Government was bound to keep its promise based on the
principle of PROMISSORY ESTOPPEL, even though there is no contract as per Art-
299.

2. STATUTES AFFECTING JURISDICTION OF COURTS

Some statutes contain provisions which takes away or bars jurisdiction of court on certain
matters such provision are called OUSTER CLAUSES.

It is a general rule of interpretation that, jurisdiction of Courts cannot be presumed to be

excluded unless it is expressly or strongly implied in the Statute itself.

Some statutes exclude jurisdiction of Courts in any of the following ways:

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 By using the words ". .......... shall not be called in question in any Court"

 By stating that the decisions taken by the authorities under the Act" shall be final and
conclusive."

 By setting up and providing specific remedies and special authorities and tribunals to
deal with disputes under the Act.

Thus, exclusion of jurisdiction of Courts may be express or strongly implied.

 Sec.9 of CPC says that courts shall have jurisdiction to try all suits of civil nature
except suits which are expressly or impliedly barred. Thus; it has been judicially
settled in many cases that civil courts have no jurisdiction to try suits of criminal,
political, purely religious nature, suits barred by Res- judicata, suits against public
policy, Immoral suits, suits which are exclusively triable by Tribunals, etc.

 Art.. 356 of Constitution gives power to President to decide whether a situation has
arisen to declare State Emergency. This power is stated to be 'final and conclusive' and
not questionable in any court of law." But in State of Rajasthan VS UOI (AIR1977
SC 1361) it was held that this can be challenged If the decision of the President is
based on irrelevant grounds.

 Art 262 of the Constitution states that inter-state disputes on water; shall be decided
by a special Tribunal and that no other Courts shall exercise jurisdiction in this matter.
But, in

T.N Cauvery Neerpparana Vivasayigal Nala Urimai Padhugappu Sangam vs UOI

(AIR I990 SC 1316)- It was held that Supreme Court can direct the Central govt to
fulfil its statutory obligations under Inter State Water Disputes Act, 1956.

 Sec 4 of IPC states that ordinary criminal Courts shall not have jurisdiction over
matters in which special authority are set up by statute. Eg:- Matters covered under
Maharashtra Control of Organized Crimes Act.

 There are special tribunals,under many Acts to deal with Various matters like govt
service, railways. wage, land, rent, industrial disputes, etc. Appeal from certain
decisions banking ombudsman lies directly to the RBI governor only, etc.

Some of these Acts may expressly or impliedly bar jurisdiction of courts.

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 Akbar Khan vs. UOI (AIR 1962 SC 70)

The Citizenship Act, 1955 says that the question whether a person has foreign citizenship
shall be determined by Central government only. Plaintiff instituted a suit in a civil court
claiming that they were Indian citizens even though they visited Pakistan temporarily. Suit
was dismissed as barred under Citizenship Act.

But, Supreme Court held that: Citizenship Act does not entirely bar jurisdiction of ordinary
Courts. Ordinary Courts can decide the question whether a person is an Indian, citizen or not.
If it is found that, he is not so, then the suit should be dismissed and then the question
regarding their foreign citizenship shall be decided by Central govt.

 State of Punjab v Labour Court ( AIR 1979 SC (1981)-

Held that Payment Gratuity Act is a complete code containing detailed machinery for
enforcing gratuity rights. Hence, other remedies under general law are barred.

IMPORTANT POINTS & CASE-LAWS

 No statute can exclude writ and supervisory jurisdiction of Supreme Court and High
Court under Arts. 32, 226 136 and 227 of the Constitution. Thus if the decisions of
Statutory authorities and tribunal are violative of Constitution, grossly in error and
manifestly unjust, these Can be challenged before Supreme court and High Court. So
no ouster clause can take way constitutional remedies-

 Raj Krushna, Bose vs. Vinod Kanungo (AIR 1954 SC 202)

 Ujjam bai vs. State of U P(AIR1962 SC 1621)

 Bhupendra Singh vs - G.K Umanath (AIR 1970 MP 91)

Decisions of statutory authorities and Tribunals can be challenged in Courts on various

grounds like:

 action taken under invalid statute.

 lack of jurisdiction. improper exercise of jurisdiction, exceeding jurisdiction.

 violation of natural justice.

 Tribunal not properly constituted

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  Gross procedural irregularities.

 If decision of Tribunal in bad faith

 If Tribunal decision has violated fundamental provisions of this Act, etc.

 X (minors) vs. Bedfordshire Country Council (1995)3 All ER353: of a statute

provides certain rights but does not state any specific remedy for breach of these
rights: it may be presumed that ordinary Courts have jurisdiction in this matter

 Ledgard vs. Bull (ILR9 A11191 p.203 (PC) On matters over which jurisdiction of
civil Courts is excluded; the consent of the parties or the special tribunal cannot
confer, jurisdiction on civil Courts

 Kilhota Hollohon vs Zachilhu (AIR 1993 SC412) Jurisdiction conferred on Courts by

Constitution can be taken away only by amending the Constitution and not by
amending the statute.

3. CODIFYING, CONSOLIDATING & AMENDING STATUTES-

[Definition of and interpretation of CODIFYING & CONSOLIDATING STATUTES already

explained in the topic "External aids to Interpretation” ]

AMENDING STATUTES - Amendment means the process of altering the legal meaning or
effects of an already existing Act without destroying its originality and object. An Act is
amended in order to improve it and to carry out its purpose more effectively. It is intended to
supplement the statute not to supplant it. The main scheme of the original Act will control the
meaning of the amended provisions. An Act may be amended by way of addition, variation.
modification or repeal. Amendment be express or implied. A Consolidating Act may
sometimes be an amending Act.

[General rule of interpretation is that when 2 views are possible Court will prefer that view
which gives effect to the amendment rather than the one which make it ineffective].

EFFECTS OF AMENDMENT

(1) By the process of amendment, the provisions of existing statute may be abrogated or
deleted.

(2) A new provision may be substituted.

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 (3) Sometimes the amendment may provide a new provision in the existing enactment.

(4) By the amending provision a change is effected in the contents or in the meaning of
the provision in the existing enactment.

(5) Normally the amended provisions have prospective application only sometimes there
may be exceptions. Ex. Procedural law amendments.

(6) An amendment made by the delegated legislation has the same effect as one made
directly by Act.

(7) The legislative practice in India shows that the omission of a provision is treated as
amendment.

(8) Whenever any amendment is affected either by deletion or addition to the Act, the
provisions of the Act will not be re-numbered.

(9) An amending provision certainly gives guidance to the interpretation of existing

provision.

 Zaverbhai Amaidas vs. St of Bombay (AIR 1954 SC 752) Implied amendment of

a statute takes place when its provisions are totally inconsistent with a later
statute. In such a situation the provisions of the earlier statute are generally treated
as impliedly repeated by the later statute

 Rameswar Prasad vs. St. of UP (AIR1983 SC 383) While interpreting an

amended provision; Court has to bear in mind; the history of the provision reasons
for its amendment and the remedy provided by the amendment and the reasons for
the remedy. Eg: Tukaram vs. St of Maharashtra case and & Delhi Rape case
were main reasons for major amendments in Criminal law in 1983 and 2013.

4. REPEAL STATUTES

A statute which expressly cancels previous statutes on similar subject. It is usually done
expressively in the form of repeal clauses. Repeal be may implied in certain circumstances,
when there occurs inconsistency between previous and later statutes. In such a situation: the
inconsistency of the previous statute may be inconsistent treated as impliedly repealed by the
later statute

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Sec 6 of General Clauses Act, 1897 explains the consequences of Repeal. It says that unless a
different intention appears a repeal shall not:

(a) revive anything not in force or existing at the time at which the repeal takes effect; or

(b) affect the previous operation of any enactment so repealed or anything duly done or
suffered thereunder, or

(c) affect any right, privilege, obligation or liability acquired or incurred under any
enactment so repealed; or

(d) affect any penalty, forfeiture or punishment incurred in respect of any offence
committed against any enactment so repealed; or

(e) affect any investigation, legal proceeding or remedy in respect of any such right,
privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid;

and any such investigation, legal proceeding or remedy may be instituted, or continued or
enforced, and any such penalty, forfeiture or punishment may be imposed as if the
repealing act or Regulation had not been passed.

In short, unless there is a saving clause or provision, repeal of an Act or any part of an Act
shall not affect past transaction.

Eg- Art 395 of Constitution expressly repeals the Indian Independence Act, 1947 and Govt of
India Act, 1935. The Constitution came into force on 26th Jan 1950. In Garikapati Veeraya
vs. Subbarah Choudhry (AIR 1957 SC 540 ) - It was held that Art-395 is not applicable to
certain cases instituted before the commencement of the Constitution. So, the right of appeal
vested in the parties to approach the Federal Court will remain unaffected. In other words;
jurisdiction of Federal Court to entertain appeals shall continue that date in cases instituted
before that date.

We have read the important points on 'Repealing Clause' in Internal Aids to Interpretation.
There is a clear distinction between 'repeal' and 'expiry'. If the time limit is prescribed for a
statute, and after that time limit is expired, the statute becomes inoperative. Generally, the
term 'expiry is used in case of temporary statutes. The word 'repeal' is generally used for
perpetual statutes. Any perpertual statute or in rarest occasions the temporary statute may be
repealed by the Legislature. Eg: The Arbitration Act, 1940 was repealed by the Arbitration
and Conciliation Act, 1996.

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SOME MORE IMPORTANT POINTS:

A. Power of repeal is consistent with power to enact. Where a Legislature is empowered

to enact a statute, the same Legislature is also empowered to repeal it.

B. The power of repeal may be exercised by the Legislature by express or implied means.

 R vs. Wicks (1946)2 ALI ER 529 (CCA)

Held that in the absence of a saving clause when a statute, expires: legal proceedings against
a person under it shall terminate as soon as the statute expires.

 State of Bombay vs. Pandurang (AIR 1953 SC 244)

When a statute is repealed; subordinate legislation made under it ineffective, unless there is a
saving clause.

DESUETUDE E QUASI-REPEAL-

It is a principle of Scottish law that a statute which has been neglected by non-usage for a
long period of time it may be as treated as repealed - Brown vs. Magistrate of Edinburgh
(1931 SLT 456 p. 458). This principle has been, occasionally accepted by Supreme Court in
Municipal Corpn of Pune vs Bharat Forge co ltd (1995) (2) Scale 245- In this case, there was
a notification imposing tax issued by Govt in 1881 under the Cantonments Act, 1880. Later, this
notification was impliedly repealed by two other notification in 1918. However, in 1918 notifications
were never practically implemented or enforced. Tax continued to be collected as per 1881 notification
till 1963. It was held that the 1918 notification stood quasi-repealed and collection of tax under 1881
notification till 1963 was valid.

5. PERPETUAL & TEMPORARY STATUTES

There are two types of statutes in point of time. They are: (1) Permanent/ Perpetual Statutes;
and (2) Temporary Statutes.

PERPETUAL STATUTES

It is also called as 'Permanent Statute'. When no time is fixed for its duration, such statute is
called "Perpetual Statute'. Such statute remains in force until it is repealed by the competent
Legislature. Such repeal may be express or implied. A perpetual statute cannot be abrogated
by its 'non-user'. Even though it is not used frequently or occasionally, it remains in operation.

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TEMPORARY STATUTES

When a time limit is fixed for its duration, such statute is called 'Temporary Statute'. When
there is no time limit fixed, such statute is not a temporary statute. Unless it is renewed by the
competent legislature, as soon as the time limit is over, the temporary statute becomes
inoperative and useless. Legislature is competent to repeal the temporary Statute before the
time limit too.

IMPORTANT POINTS:

A. As soon as the time limit is over, the temporary statute stops functioning.

B. Notifications, Orders, Rules, etc. made under temporary statute also become
inoperative.

C. Any appointment made under the temporary statute becomes 'functus officio'. An
authority, who has performed the act authorized by the temporary statute during its
time limit, becomes exhausted, as soon as the statute becomes inoperative.

D. The sentences or penalties imposed by the Court during the life time of the temporary
statute, cannot be canceled, at the end of the temporary statute's time limit. The person
convicted under the statute should complete his sentence completely, even though the
statute becomes inoperative.

E. Where a person is detained under the temporary detention law, and such law is
confined to certain time limit, such detained person shall be released as soon as the
temporary statute comes to an end.

 State of Orissa vs. Bhupendra Kumar (AIR1962 SC 945)

Held that expiry of a statute does not make it dead for all purposes. In this case a person was
convicted under a temporary Act. It was held that his sentence should be completed even if
the Act expired earlier. He cannot be released before the completion of his sentence.

If a statute is repealed by a temporary statute; the question arises whether that statute will be
revived on the expiry of the temporary statute. Answer will depend on the facts and
circumstances of the case.

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6. STATUTES IN PARI MATERIA

[Refer topic: 'External Aids to interpretation].

7. RETROSPECTIVE STATUTES (EX-POST FACTO LAWS]

A statute is said to be retrospective: if it takes away or impairs already vested rights or creates
new obligations, duties or disabilities in respect of past transactions. General rule is that
statutes are prima-facie prospective. They should not be given retrospective operation unless
it is expressly or impliedly declared in statute itself.

If a statute is capable of two interpretations; it should be construed as prospective only

Moreover, a statute should not be interpreted to have a greater retrospectivity than ts
language permits.

The rule against Retrospectivity is based on the presumption that the Legislature does not
intend to be unjust. It is based on the maxim "Nova constitutum futuris form imponere debet
non praeteritis" ( Every new law should affect the future and not the past]

However, the rule against Retrospectivity is not rigid or inflexible. If the legislative intent is
clear, then the Court is bound to give retrospective operation to the statute.

 Queen vs. Inhabitants of St Mary White Chapel (1843129 QB 120)

Under the Poor Removal Act, 1846;" a woman residing in a parish with her husband shall not
be removed from the parish for 12 months from the date of his death: If she continues to be a
widow." In this case; the woman's husband died before this Act was passed. Court held that
the woman cannot be removed from the parish. The Act could not be made retrospective Just
because one of the conditions for its occurred before it was passed.

 Carson vs. Carson (1964 I WLR 511)

Under Section 3 of the Matrimonial Causes Act, (1963), an adultery which has been
condoned, cannot be revived." Means: a husband has condoned his wife's adultery vice-versa;
then they cannot apply for divorce on the ground of adultery.

In this case, the husband filed divorce petition against wife on ground of adultery. which he
had condoned in 1961. The Court held that Sec. 3 of Matrimonial Causes Act is prospective;
not retrospective. So, the husband's right to divorce wife on ground of adultery is not affected.

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 St of Jammu & Kashmir vs. T.N.Khosa (AIR1974 SCI)

It was held that service rule amendments which affects promotion of existing employees is
prospective and not retrospective because promotion' is something which occurs in the future.

 Ramprakash vs. Savitri Devi ( AIR 195 punjab 87) In this case construction of S.2(4) of
the Hindu Women's Right to Separate Residence and Maintenance Act 1964 came up for
consideration. A Hindu married woman claimed separate residence and maintenance
from her husband on the ground that he had "married again" one of the grounds under the
Act. His marriage, however had taken place before the Act came into force. The question
was whether the expression "if he marries again" in S.2(4) of the Act is prospective or
retrospective. The language in present tense was construed as having prospective
operation only.

 Moni Devi V. Handibandhu Patre (AIR 1955 ori 73 (FB)

This case related to the interpretation of the Hindu Women's Right to Property Act 1957. The
expression that arose for interpretation was "if he dies intestate". The question arose whether a
widow whose husband died before the commencement of this Act could claim any interest in
the coparcenary property. It was held that women who became widows only after the
commencement of this Act could take its benefit.

 S.Rajagopala Reddi by L.R's vs. Padmini Chandrasekharan (AIR 1996 SC 238)

It was held that the Benami Transactions (Prohibition) Act, 1988 is prospective in nature. It
will not affect past pending legal proceedings on benami transactions. This is because it is a
Declaratory statute which declares benami transactions unenforceable. Hence, rule against
retrospectivity is not applicable to declaratory statutes. Declaratory statutes are to be given
retros-prospective effect. But, in this case: the statute was not expressly made retrospective.
So the Act will not affect benami transactions which took place before the passing of the Act.
Pending actions on benami transactions have to be decided according to earlier laws itself.
Otherwise it will badly affect vested rights.

But, if the Legislature intended that the statute is to affect pending cases then the Courts must
give effect to it . Thus, when a Substantive law is altered during the pendency of a case: rights
of the parties are to be decided according to the already existing law and not according to the
changed law. But; If the new law or changed law shows clear intention to affect pending
cases, then it must be given effect to.

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  M/s. H.K. Dada Itd vs. St. of M.P (AIR 1953 SC221) Procedural laws are generally
retrospective, unless a contrary intention appears in the statute . Thus changes in
procedural laws like CPC, Evidence law, limitation Act, etc will generally affect
already pending cases .But, right of appeal is a substantive right. It cannot be
destroyed by retrospective operation: unless the statute expressly or impliedly provides
so.

 Rule against retrospectivity is particularly strong in Case of criminal laws creating

new offence or providing enhanced punishment for existing offence. (Ex-post facto
laws). It is guaranteed by Art 20 of Constitution.

8. DELEGATED LEGISLATION

Parliament is the source of all laws. Due to lack of lime and other inconveniences, the
Parliament may transfer some of its law-making power to the executive. The laws made by
the executive under the authority of the Parliament is known as "Delegated Legislation. It
may be in the form of rules, notifications. by-laws, orders, schemes, etc. Delegated
Legislation does not have an independent existence. It depends on its validity and continuity
on the 'Parent Act’.

Parent Act; also known as Enabling Act or Delegating statute is the act which
delegates(transfers) law making power to the executive. Parent act is passed by the Parliament
/ State legislature. Delegated legislation is thus known as Subordinate legislation too.

If a delegated legislation is open to two interpretations, one of which makes it bad and the
other good, the Courts must adopt that interpretation which makes it good- In Re, Hindu
Women's Right to Property Act, (AIR 1941 FC F2 p.76.

 Wool-wich Equitable Building Society vs. Inland Revenue (1991)4 All ER 92 p.104
(HL) If a part of the delegated legislation is invalid court must try as far as possible to
cut it away without affecting the remaining part.

 State of Kerala vs. Charia Abdulla (AIR1965 SC 1585)

Some Parent Acts may state that delegated legislation made under it will have effect
'as if enacted in the Act' itself. Some Parent Acts may state that delegated legislation made
under it shall be conclusive evidence that it has been made properly in accordance with the
Parent Act itself.

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 Supreme Court has held that use of such words cannot additional sanctity to the give
legislation and cannot save delegated legislation and cannot save invalid delegated
legislation.

 B.K. Srinivasan vs. St. of Karnataka (1987)1 SCC 658

Some Parent Acts contain provisions which state that delegated legislation made under it
cannot be challenged on the ground of minor procedural irregularities. Such provisions are
called 'GANGA CLAUSES. In this case, Supreme Court has held that Ganga clauses. are
valid as long as it does not cause substantial prejudice to anyone.

Limitations of delegated legislation

While interpreting delegated legislation court should bear in mind the following principles:

a) Essential delegated function cannot be delegated to the executive

Eg. Laying down policy of the Act, enacting the policy into a binding rule of
conduct, repealing the Act, framing principles for granting compensation, power
to adopt future law of other states etc.

b) Delegated legislation should not be given retrospective operation unless it is

expressly or Impliedly authorized by the parent Act.

c) Unlimited power of taxation cannot be delegated. Power to impose tax can never
be delegated

d) Power to make penal provisions in penal laws cannot be delegated

e) Jurisdiction of courts and judicial review cannot be controlled through delegated

legislation

f) Delegated legislation cannot make amendments in parent Act

g) Delegated legislation should not violate parent Act or Constitution or general law.

h) Delegated legislation should not be unreasonable and arbitrary

i) Sub- delegation is valid only if expressly authorized by parent Act

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9. PROCEDURAL & SUBSTANTIVE LEGISLATION

Substantive law is the law which defines rights and duties,offences and punishments: Eg: -
IPC, Contract Act. Procedural laws is the law which lays down the procedure for enforcing
substantive law. Also known as Adjective law. Eg:- CPC, CrPC, Limitation Act, Evidence
Act.

Substantive law is concerned with the ends of justice. Procedural law is Concerned with the
means by which these ends can be attained.

Substantive laws should be strictly interpreted, as a general rule. A person can be made liable
under a substantive law only if he comes within the clear words of the law. If two
interpretations are possible; that interpretation which exempts the person from liability shall
be adopted Substantive law should be interpreted keeping in mind its purpose and object
(mischief intended to be remedied). All its provisions should be construed harmoniously,

General rule of interpretation is that substantive laws are prospective unless the statute
expressly or impliedly shows it to be retrospective.

Procedural Laws are to be interpreted liberally as a general rule, where more than one
interpretation is possible; that interpretation which effectuates the procedure should be
adopted, and not the one which curtails the procedure.

 Rupadhar Pujari vs. Gangadhar Bhatra (2004)7 SCC 654 -Supreme Court held that
procedural laws should not be interpreted too rigidly. Procedural laws are meant to be
assist and aid the implementation of Substantive law. They are hand-maidens of
substantive law and intended to serve substantive law to make them workable to
achieve the ends of justice.

 Paramahamsa Ramakrishna Mauni Baba vs. Trimbak Rajaram (AIR 1978 Bom
176) Order 26 Rule 1&4 of CPC expressly lays down situations under which a person
can be examined on commission without attending the court. Accordingly, a person
can be examined on Commission only if:

 He is sick or infirm

 Public servant whose absence from duly is harmful to public.

 If person residing outside jurisdiction of court

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  If he is about to leave the jurisdiction of the Court.

But, the Court exercised its inherent powers under Sec. 151 CPC and held that a
‘Paramahamsa’ who remains in naked condition may be examined on commission.

In another case it was held that a person who fears danger to his life may be examined on
commission.

Like substantive laws; procedural laws should also be construed harmoniously. This is based
on the maxim: Injustum est nisi tota lege inspecta, de una aliqua ejus particula proposita
judicare vel respondere ( It is unjust to decide or respond to a particular part of a law without
examining the whole of the law).

General rule is that procedural laws have retrospective effect unless the statute expressly or
impliedly makes it prospective.

 Vinod Gurudas Raikar vs. National Insurance Co: Hd (AIR 1991 SC 2156) -
Nobody has a vested right in procedural law. when a change is made in procedural
law; it takes retrospective effect and can affect pending proceedings. But, if the party
has already obtained a decree, then the amendment in procedural law cannot disturb his rights
obtained by the decree.

10. CONSTITUTION

Constitution is a body of fundamental principles according to which a nation is to be

governed. It is the fundamental, basic law which determines the government wings and
(Legislature, Executive, Judiciary) and their nature ,powers, functions and limits.

Krishna lyer. J says: “Constitution is a documentation of the founding fathers of a nation,

containing fundamental directions for their fulfillment." It is the mother of all laws in the
country. No law in the country should violate any provisions of the Constitution. The
following some principles to be followed while interpreting the Constitution:

 Constitution, especially a democratic Constitution should be interpreted in a liberal,

progressive manner and not in a narrow pedantic sense. Eg:- Right to life and liberty
under Art 21 has been liberally interpreted in various cases, so as to include.. right to
free and fair trial, right to dignity, right to privacy, right against torture, right to
preserve cultural heritage, right to pure water, right to emergency medical assistance,
right to sleep, etc.

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  An interpretation which produces unjust results injurious to the nation should be
avoided. Eg: In Mr ‘X' vs. Hospital Y: it was held that right to life under Art 21 does
not include right to marry (for HIV patients). Similarly, HIV patients cannot claim
right to privacy absolute right under Art. 21.

 Judicial decisions of foreign Constitution may be relied, but these are to be used with
great care and caution, and are not absolutely binding.

 If two interpretations are possible; Court should adopt that interpretation which
ensures smooth and harmonious working of the Constitution.

 Various other normal principles of interpretation are applicable to Constitution too.

Eg. Harmonious Construction, Legislative intent, Statute to be read as a whole,
background history noscitur a sociis, Expressio unius est exclusio alterius,etc.

 Art 366 is the definition clause (Interpretations Clause). It gives the definition of
various words. These words should be used in the sense defined wherever they appear
in the Constitution; unless the context otherwise requires.

Art 367 makes the General Clauses Act, 1897 applicable for interpretation of
Constitution. Courts have propounded various principles and doctrines for use in
interpretation of the Constitution. These are:

A. BASIC STRUCTURE DOCTRINE-

Laid down in Kesavananda Bhartis case: it says that a constitutional amendment which
destroys the 'basic structure of the Constitution is invalid Basic structure includes:

•Democracy

• Secularism

• Independence of Judiciary

• Free and fair elections

 Republic

 Federalism

 Separation of Powers between Legislature, Executive & Judiciary

 Sovereignty, unity &dignity integrity of Rule of law nation

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  Judicial review

 Harmony between fundamental rights and directive principles. Fundamental rights

may also be amended but subject to basic structure doctrine.

B. DOCTRINE OF ECLIPSE

Pre- Constitutional laws which violate fundamental rights will not become automatically void.
They will be eclipsed (shadowed) by the Constitution. As soon as the defects are removed;
they will become effective again. But, post-constitutional which are rights are violate of
fundamental considered void ab initio. So, doctrine of eclipse not applicable to post-
constitutional laws in general.

C. DOCTRINE OF TERRITORIAL NEXUS

It is a general rule that laws of a country intended to apply within the territory of that country.
Article 245(1) of Constitution says that Parliament may make laws for the whole or any part
of the country and Stale legislature may make laws for the whole or any part of the country
and state legislature may make laws for the whole or any part of the State. But an
EXCEPTION is there in Art 245(2). It says that laws made by Parliament shall not be deemed
to be invalid on the ground that it has extra-territorial application.. If an Indian citizen
directly or indirectly commits an offence punishable under Indian law outside India. then
Indian Criminal have jurisdiction to try and punish. Eg: If a Hindu commits bigamy outside
India and returns to India, he can be proceeded against under Hindu Marriage Act or IPC.
Similarly, if a foreigner commits an offence in India indirectly through his agent, then Indian
courts will have jurisdiction over him even though he was not physically present in India.

 Mobarak Ali vs st of Bombay (AIR1957 SCC(857)

In this case, a Pakistani committed The offense of cheating in India through letters and phone
calls from Karachi. Money was delivered to his agent in Bombay. Court held that the accused-
Pakistani could be prosecuted & under Sec 420 IPC (Cheating) in India, though he was not
physically present in India.

State laws should not have extra- territorial operation, as a general rule .But, if a State law
operates outside the State, it will not be automatically treated as invalid. If the object, person
or transaction to which the State law applies has a reasonable nexus (connection] with the
State, then such State law will be treated as valid. This is called Doctrine of Territorial nexus.

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Eg: State of Kerala may impose tax on goods of other States passing through its territory.
Leading cases:

 St of Bombay vs. RMDC (AIR195856699) it was held that the State of Bombay had
jurisdiction to tax a newspaper published from Mysore. But having circulation in
Bombay.

 Bengal Immunity Co: vs St. of Bihar (AIR1957 SCC (857) Held when there is
sufficient territorial nexus between a State law and a person, such person cannot
escape from the State law on the ground that he is not residing in that state.

D. DOCTRINE OF PITH AND SUBSTANCE

Art 245 and 7th schedule of Constitution, clearly divides the law-making powers of Union
govt and state govt into 3 lists: Union list, State list and Concurrent list. Both Union and State
govt have power to make. laws on subjects mentioned in Concurrent list. General rule is that
Union and state govts should strictly stay within their own spheres. But, if a law made by
state govt accidentally encroaches any matter in the Union list or vice-versa then such law
shall not be automatically invalid. If in substance, the law is within their competence and
power then the Court will uphold the validity of the law. In short, incidental overlapping of
State laws and Central laws will not make either of them invalid or ultra-vires. But, wilful and
deliberate encroachment by a legislature in the field of another will make it invalid and ultra-
vires.

 Prafulla kumar vs. Bank of Commerce, Khulna (AIR1947 PC(60) Money lending
was a matter in State list. ‘Promissory notes' was a matter in Union list. An Act passed
by Bengal legislature on Money lending incidentally affected promissory note
transactions. Court held that the Act passed by Bengal legislature was in substance
dealing with money lending only. Hence, an incidental touching of matters in the
union list (here; promissory notes) will not make the State Act invalid .

 State of Bombay vs. Balsara (1951 AIR 318)

Imports of liquors is a matter within the Union list while intoxicating liquors, their
manufacture, production, possession, purchase transport and sale are matters within the State
List . Bombay Legislature passed the Bombay Prohibition Act was challenged on the ground
that since enforcing prohibition in the State would affect "import of liquors, a matter within
the Union List, and the Act would be ultra vires the Bombay Legislature. Repelling the

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contention, the Supreme Court held that in pith substance the Act fell under matters within the
State List mentioned above and encroachment, if any made, is only incidental and would not
affect the competency of the State Legislature.

 Banerjee Vs Mukherjee (AIR1953 SC 58)

The Parliament passed the Industrial Disputes Act, 1947. This was challenged by the
Municipality on the ground that it related to a matter within the State List, ie. "Local
Government," in so far as it applied to the municipalities. Court held that in pith and
substance the Act related to "industrial and labour disputes," a matter within entry 22 of List
III and not with local Government and hence the Parliament has the legislative competency to
enact this Act.

E. DOCTRINE OF COLOURABLE LEGISLATION

It means that what cannot be done directly will not be permitted to be done indirectly. An Act
may prima-facie, outwardly appear to be valid and constitutional but actually violating
constitutional provisions. Such invalid Acts cannot be saved just due to its outward
appearance of constitutionality. It is like a wolf in sheep's clothing. Kameswar Singh vs. State
of Bihar-Bihar Land Reforms Act declared unconstitutional. because outwardly it appeared to
protect tenants but in reality ,it badly affected their interests.

Doctrine of colorable legislation is also used to invalidate State laws which indirectly,
wilfully and deliberately encroaches matters in the Union list.

F. DOCTRINE OF SEVERABILITY

Means, when a particular part of a Statute is unconstitutional it is not necessary to declare the
entire statute as unconstitutional. The unconstitutional parts alone needs to be severed (cut
off). But if the unconstitutional part is inextricably mixed with the remaining part of the
statute so that they cannot be separated from each other, then the entire statute should be
declared unconstitutional.

G. DOCTRINE OF IMMUNITY OF INSTRUMENTALITIES

Articles 285-289 of the Constitution lays down that the property of Union gout shall not be
taxed by State govt and vice-versa. Sale of electricity and water by these governments to each
other are not mutually taxable. However, judicial decisions have applied this doctrine

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restrictively in some cases. Re-Customs Act AIR1963 SC(1760)- Held that Central
government could impose customs duty on goods imported or exported by the State.

H. DOCTRINE OF PROSPECTIVE OVERRULING

Laid down in Golaknath vs St. of Punjab AIR 19675 SC 1643) General rule is that a Judicial
decision has retrospective effect. But, in some situations may lead to upsetting of vested rights
and unwinding of past settled transaction. In order to avoid such inconveniences,
complications and injustice Court may declare that its decision will have prospective effect
only. As a result, the decision will affect only future transactions and will not affect past
transactions and vested rights However, there are 3 conditions:

 Can be applied in Constitutional matters only.

 By Supreme Court only- Kerala Agro Industries corpn ltd v. amminikutty Amina
(1997(2)KLT931)

 Time and conditions of prospectivity is a matter of court’s discretion to be decided

according to facts and circumstances of the case.

I. DOCTRINE OF OCCUPIED FIELD / DOCTRINE OF REPUGNANCY

J. Art 254 of the Constitution says that if there is any inconsistency between laws of
Union Legislature and State Legislature: then laws made by the then State legislature
shall be void to the extent it is repugnant with the Union law. Such clashes occur
mainly in the in the context of laws made in the Concurrent list.

K. If the Parliament intends to occupy or cover an entire field on a particular subject;

contradictory State laws on the same subject will not be allowed to co-exist with the
Union law. Eg:- An Act passed by Assam Legislature says that a person may be
appointed only after the consultation with the High court. Later Parliament made a law
which stated only qualifications of a member. Did not mention consultation. Held that
– the law of Parliament was intended to be a complete code on this subject, hence
consultation not required.

 Deep Chand vs State of UP (AIR 1959 SC (648- )Held that U.P Act for motor-
transport nationalization cannot co-exist with the Motor vehicles (Amendment )
Act of the Parliament; because the intention of the Parliament was to cover the
whole field of the

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 U.P Act. In short ; if there is conflict between Union law and State law ; the Union
law shall prevail over the state law.

L. DOCTRINE OF EMINENT DOMAIN

 Arts 248-254- A combined reading of these Articles clearly show that the Union has
‘upper-hand’ over States in the matter of making law (including tax laws). Art 248
says that the Union shall have RESIDUARY POWER to make laws. Means the
Union has exclusive power to make any law on subjects which are not laid down in
any list. Several tax laws have been enacted by the Parliament under Residuary
powers. Eg. Gift tax, Expenditure tax, Annual deposit scheme. However, the Union
should use its residuary power only as a last resort.. Before using its residuary power
on any subject ,the Union should clearly establish that the State has absolutely no
power to make laws on that subject .Union can use its residuary powers only when
all the subjects in all the three lists are exhausted. Held in International tourism
corporation vs. state of Haryana (1981).

 Arts 249, 250, 252 and 253 lays down that the Union has the right to make laws on
subjects in the State list in national interest or during emergency or with the consent
of States or to enforce inter national agreement. Arts 251 and 254 says that if the
laws made by the Union conflicts with State laws , then the Union law shall prevail
over the State law. The State law shall be void to the extent it is repugnant with the
union law.

 Art-286- States do not have power to impose sales or purchase tax on sale or
purchase of goods outside the State or in the course of export out of India on import
into India.

11. GENERAL CLAUSES ACT, 1897

Also known as "The Legislative Dictionary” an Act which contains definitions of many words
found commonly in all Central statutes. Also contains legal consequences arising out of
common changes in statutes like amendments, repeal, revival and so on. It is therefore a very
valuable guide in the interpretation of statutes. Consists of 30 sections divided into 6 parts.

The following are the most relevant parts of General Clauses Act, 1897:\

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 Sec 3-It is the Definition Clause containing definitions of 66 words commonly used in
all statutes. However, it specifically stated that these definitions are not absolutely
binding. The same words may be having special, different meanings in some statutes,
according to the subject or context of these statutes.

 Some important definitions in Sec 3:- Abet, Affidavit, Constitution, District Judge,
Financial year, good faith, Immovable property, registered, imprisonment, Indian law,
Local authority, Magistrate, month, offence, Person, public nuisance, ship, son, will,
year, etc.

General Clauses Act helps to eliminate confusions likely to arise in the meaning of
these simple words during interpetation of statutes.

For eg:-Sec. 3(22)- ‘Good faith' A thing shall be deemed to be done in good faith,
where it is done honestly, whether it is done negligently or not.

Sec. 3(26)- ‘Immovable property’ shall include land, benefits to arise out of land,
things attached to earth or permanently fastened to anything attached to earth.

Sec. 2(27)- ‘Imprisonment’ means imprisonment of either description as defined in

Indian Penal Code.

Sec. 2(32)- ‘Magistrate' shall include every person exercising all or any of the powers
of a Magistrate under the CrPC.

Sec. 2(38)- ‘Offence’- means any act or omission made punishable by any law for the
time being in force.

Sec.2(42)-‘Person’ shall include any company or association or body of individuals

whether incorporated or not.

Sec.2(48)-‘Public nuisance’ means a public nuisance as defined in Indian Penal code.

Sec.2(57)-‘ Son’ in case of any one whose personal law permits adoption, shall
include adopted father.

Sec-2(64)-‘Will’-shall include a codicil and every writing making a voluntary

posthumous disposition of property.

Sec.2(66) & Sec.2(35)- ‘year’ and ‘month’ means year and month reckoned according
to British calendar.

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 Secs. 5 to 13 deals with general rules of construction of statutes in specified
circumstances like:

 Coming into operation

 repeal & references to repealed Acts

 revival of repealed Acts

 Computation of time

 Measurement of distances

 Gender and number.

Some relevant parts:

 Sec.5(3) says: Unless a contrary intention is expressed, a Central Act or regulation

shall be construed as coming into operation immediately on the expiry of the day
preceding its commencement.

Eg: If the notification for a law is issued at 12 AM of June 1st of 2002, then the law is
deemed to have one in to force from the midnight of May, 31st of 2002.

In Hazari Lal vs. Kanhaiya Lal the question was whether words “the date of commencement
of this Act” in section 15 of U.P (temporary)control of Rent and Eviction Act, 1947 means the
original date when the Act came into force or the date when the Act was made applicable to a
particular area. The High Court held that these words must be interpreted to mean the date on
which the Act became applicable to that area.

In Kishore Lal vs. Devi Prasad Kejriwal, it was held that the provisions of an Act are to be
applicable from the date it comes in to operation and not retrospectively, unless so specifically
provided by the Act.

Sec. 6 deals with legal consequences of repeal of a statute [Refer topic ‘Repeal statutes’]

 Kristina Dayal gir vs Sakina babi(34 IC 27) Held-Application for execution of a

decree after 12 years is barred under Sec. 48 C.P.C; even though the old Code of 1882
was in force at the time of passing of decree. This is supported by S.6 of General
Clauses Act.

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  Municipal Board Kanpur vs Behari Lal ( AIR 1960 A11546) In Municipal Board ,
Kanpur vs. Behari Lal , a person was appointed as Public Analyst under the U.P. Pure
Food Act, 1950 which was repealed by the Prevention of Food Adulteration Act ,
1954. It was held that the person could not be deemed to be a Public Analyst for the
purpose of Act of 1954.

 Girwarlal vs. Kallan (AIR 1927 A11509) An appeal was filed before the District
Judge when the Agra Tenancy Act , 1901, was in force. However, on the date of
hearing of appeal, the Act of 1901,was repealed and replaced by the Act of 1926. The
question was whether the appeal was to heard according to the Act of 1926. The High
Court held that the appeal was to be decided according to the Agra Tenancy
Acct,1901. The case was clearly covered by Section 6 of the General Clauses Act.

Impact of Repeal on pending cases:- The pending cases are normally disposed of according
to the old law. However, while disposing them of In Amar Nath Misra vs. Sreenarain
Mansingka, it was held that the effect of the repeal of an enactment on cases pending at the
time of repeal would be that they would continue as if the enactment had not repealed.
However, this is subject to the qualification that the repealing enactment contains no
provision or indication to the contrary.

Regarding repeal of Temporary statutes; general rule is that in the absence of contrary
provision, proceedings taken against a person under the temporary Act will terminate as soon
as the statute expires. If the legislature wishes to continue it; a new Act is required or new
procedure may be applied. Sometimes special provisions for pending cases may be provided
by the repealing Act itself.

Some provisions of a temporary statute may have permanent operation. Eg:-Finance Act.

 State of Orissa VS Bhupendra Kumar Bose (AIR1962 SC 945) Sec 7 deals with
revival of repealed statutes- Says that of a statute has been repealed wholly or partly
and it is needed to be revived; this fact should be stated specifically.

 Ameer-un-nissa Begum vs. Mahboob Begum (AIR 1955 SC 352)- Held that repeal of
a repealing statute would not revive original statute if the second repealing statute
shows an intention to the contrary.

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 Sec.8 lays down a well- established principle that when an Act or a part of it is repealed
and re- enacted , then references in other statutes to the repealed provisions shall be
construed as referring to the re-enacted provisions.

In Joaquim Santana Simplicio da Silva of Margao vs. Nicolan Gracias Calderia of Margao,
there was a change in law after the institution of the suit. It was held that the law of court-fee
applicable was the law which was in force when the suit was instituted.

Sec.9-12 lays down general rules as to construction /constriction of time.

 Subject to a contrary intention. :Day means space of time between two successive
nights.

 J M Lal vs Gopal Singh (AIR 1963 Punj 378) Held that fractions of two days
cannot be together treated as one complete day.

[But under Income-tax Act, a period of 24 hours spread over a number of days shall be treated
as one day].

In computing time if the word ‘from’ is used the first day has to be excluded. If the word ‘to’
is used, the last day is to be excluded (subject to contrary intention).

Eg: Bhoji lal Pandya vs. Meherwal Laxman Singh (AIR1968 Raj 145)

In construing period of limitation for filing election petition, the day on which election results
were declared is to be excluded.

 Steward vs. Chapman (1951(2) All ER613 When a notice was required to be served
within 14 days from the commission of the offence a notice served at 8:00am on Jan
25th was held to be valid; even though the offence was committed at 7:15 am on Jan
11th.

 Brabhu Dayal Sesma vs. State of Rajasthan (AIR 1985 SC 1948) In calculating a
person's age: the day of his birth counts as a whole day and he attains a specified age
on the day next before the anniversary of his birthday.

 ’Immediately’ may mean ‘reasonable time’.

 Shivadas Daulatram Marwadi vi Narayan (ILR 36 Bom268) when an Act of

Parliament gives a number of days for doing a particular act and says nothing of

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 Sunday, then the days mentioned are to be taken as consecutive days including
Sunday.

 Sec. 11 says about measurement of distance. Unless a contrary intention appears:

distance is to be measured in straight line on a horizontal plane

 Sec.13 says about gender and member. Unless a contrary intention appears. Words
importing masculine gender [he, his. Man] shall be taken to include feminine gender
[she, her, woman] Eg ‘his’ father and mother shall include ‘her’ father and mother.

Secondly: words in ‘singular’ shall ordinarily Include ‘plural’ and vice-versa.

Sec. 27 ‘Service by post’. A document sent by post is deemed to be delivered at the

destination if properly addressed, paid and posted by registered.post in normal time in
ordinary manner.

 Sec. 16 provides that power to appoint includes power to suspend or dismiss.

 Sec. 24 If any Central Act is repealed and re-enacted, then any rules, no, schemes,
orders, bye-laws, etc made under the repealed Act shall continue; if not inconsistent
with the re- enacted Act.

 Sec. 30 specifically states that the term ‘Central Act’ used in the General clauses Act
shall be deemed to include ordinance of President under Art. 123 of the Constitution.
[Not applicable to Sec.5 and some sub-sections of Sec. 25].

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 CHAPTER 7

PRINCIPLES OF LEGISLATION & LEGISLATIVE DRAFTING

INTRODUCTION

Principles of Legislation are the important points and factors to be kept in mind by a legislator
(law-maker) before and at the time of making a law. Principles of Legislative drafting are the
important points and factors to be Kept in mind by a draftsman [person who writes a law as
per the instructions of the law-makers].

Jeremy Bentham (1748 - 1834); a leading English jurist and legal reformer in his books-
"Theory of Legislation" and "Principles of Morals and Legislations" laid down certain
fundamental principles which a legislator should consider while making a law. According to
Bentham:

 Legislation, the art of making laws is a science based on human nature.

 Right aim of legislation is to carry out the principle of utility. Proper aim of every law
is 'Salus Populi Suprema lex' [promotion of greatest happiness to greatest number).
 "Bentham was also of the opinion that each person is the best judge of his own
happiness. Hence, legislation should aim; as for as possible to remove all restrictions
on freedom of individual. Individuals should be let alone to their free will as long as it
does not affect similar free-wills of his neighbours. Thus, Bentham advocated laisezz-
faire (Let us alone) doctrine.

PRINCIPLES OF LEGISLATION can be studied under the following heads:

Principles of Legislation

Bentham’s Arbitrary Principle

Ascetic
Utilitarian (Principle Sympathy Morality Prnciple
Principle
Theory (Pain & and Antipathy)
Pleasure)

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I. BENTHAM'S UTILITARIANISM THEORY

Also known as HEDONIC THEORY or PRINCIPLES OF UTILITY and PAIN &

PLEASURE THEORY.

Utility means tendency of a thing to bring some good or to prevent some evil. The term
'utility' is derived from the latin word ‘utilis’ meaning useful. According to Bentham,

"Nature has placed mankind under the governance of two sovereign masters; PAIN and
PLEASURE.

All actions of human beings are motivated by the pursuit of pleasure and the avoidance of
pain. It is a moral fact that pleasure embodies good and pain embodies bad. Thus, the
rightness or wrongfulness of an action (or law) may be judged by how useful it is, that is how
much pleasure or good it creates. If the end result of an action is happiness or pleasure; then
means to attain that happiness or pleasure can be justified.

Interest of a community is the sum of the interests of the individuals that compose it. A thing
is said to promote the interest of an individual if it tends to give him pleasure.

Bentham says: "An action is right if it produces the greatest good for the greatest number
Thus: a law which provides maximum good for maximum people is a supreme law [salus
populi suprema lex]. That is a law which promotes interests of maximum individuals. While
making a law, a legislator may consciously or sub-consciously be influenced by the Utilitarian
theory.

Egs- Land reforms legislations like Kerala Land Reforms Act was passed to fix ceiling limits
for holding lands, prevent unreasonable eviction of tenants, allow Kudikidappukars to
purchase their kudikidappu, etc. Land reforms laws came as a blessing to thousands and
thousands of cultivating tenants even though it caused relatively smaller inconvenience and
hardship to landlords. Similarly, labour laws like Employees State Insurance Act, Factories
Act, Provident Fund Act, etc has provided various benefits to numerous workmen and
employees though it imposes liabilities on employers.

# HEDONIC CALCULUS

Bentham devised a method called Hedonic calculus to measure the usefulness of an action
and to determine whether it is good or bad on a larger scale. Hedonism is a doctrine which

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says that pleasure is the chief good. While making a law; a legislation may find the Hedonic
calculus useful.

Hedonic calculus relies on 7 factors to determine how much pleasure or pain is caused by an
action [or a law]:

1. Intensity - How great is the pleasure or pain ?

2. Duration - How long will the pleasure or pain last?

3. Certainty - How definite is the pleasure or pain?

4. Propinquity - How proximate [near] is the pleasure or pain?

5. Fecundity [ productiveness, fruitfulness )-How productive is the pleasure or pain? In

other words; will the pleasure be capable of producing more pleasures? Will be pain
produce more pains? In short; what are the repercussions [ after-effects] of the pain
and pleasure?

6. Purity- A pure pleasure is one which is not likely to produce pains. A pure pain is one
which is not likely to produce pleasures.

7. Extent- How many people will the pain or pleasure affect?

That action that leads to the most pleasure for the most people is the morally right one.

 MERITS OF UTILITARIAN THEORY

1) Flexible- Utilitarian theory has the ability to take into account any given situation
individually [that is from the view point of an individual]. Would even accept breaking
of laws, if greater happiness would be the result of doing so.

2) Measurability- Utilitarian theory helps to evaluate a law mathematically and come out
with a conclusion. It is a democratic theory as it relies on quantitative measurement of
pleasure and not pleasure of just one person.

 DE-MERITS OF UTILITARIAN THEORY

a) Quantitative- Greatest amount of happiness to maximum people, it may be legalized under this
principle. Gives more importance to physical pleasures than spiritual pleasures. Utilitarian
theory regards greatest amount of happiness for greatest number of persons as good.
Neglects the quality of happiness. Eg, if gambling, prostitution, drugs etc gives greatest

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 amount of happiness to maximum people, it may be legalized under this principle. Gives more
importance to physical pleasures than spiritual pleasures.

b) Ambiguity-Concept of pain and pleasure is not very clear and certain. Hence: this
theory has tendency to justify anything if it produces greatest amount of happiness.

c) Neglects minorities- The legitimate interests and safety minorities may be sacrificed
and endangered by this theory. Eg- It may justify mass killing of Sikhs for the
happiness the Hindus and Muslims. Prohibition of cow-slaughter; which is against the
interest of the Muslims may be legalised in the interest and happiness of Hindus. But,
in spite of its flaws, Bentham's utilitarian theory is a remarkable guide-post for
legislators on the general principle of legislation.

Utilitarian theory regards greatest amount of happiness for greatest number of persons
as good. Neglects the quality of happiness. Eg, if gambling, prostitution, drugs etc
gives

KINDS OF PLEASURES

1. PLEASURES OF SENSE :-

Those which can be immediately referred to our sense-organs independently

2. PLEASURES OF RICHES:-

Meaning thereby, that kind of pleasure which we derive from the possession of thing,
which is a means of enjoyment of security.

3. PLEASURES OF ADDRESS :-

Those which result from some difficulty overcome, from some relative perfection in the
handling and employment of the instruments which aid in the attainment of pleasure or
utility.

4. PLEASURES OF FRIENDSHIP:- Those which accompany the persuasion of possessing

the goodwill of such individual.

5. PLEASURES OF A GOOD REPUTATION which accompany by the acquisition of the

esteem and goodwill of the people about us.

6. PLEASURES OF POWER which a man experiences which finding in himself the means
of making others to serve him through their hopes or their fears.

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7. PLEASURES OF PIETY which accompany the persuasion of acquiring or possessing the
favour of God.

8. PLEASURES OF BENEVOLENCE which we are sensible of tasting when we

contemplate happiness of those who love us. They may also be called pleasures of
sympathy or social affections.

9. PLEASURES OF MALEVOLENCE: -They result from the sight or the thought of pain
endured by those beings who do not love us, whether men or animals.

10. PLEASURES OF KNOWLEDGE: - When we apply our mental faculties to the

acquisition of new ideas .

11. PLEASURES OF MEMORY

12. PLEASURES OF THE IMAGINATION

13. PLEASURES OF HOPE

14. PLEASURES OF ASSOCIATION

15. PLEASURES OF RELIEF OR OF DELIVERANCE: That is pleasure found upon pains.

KINDS OF PAINS

1. PAINS OF PRIVATION: - These correspond to all the pleasures whose absence excites a
sentiment of chagrin or acute disappointment. They exist in three principal modifications.

a) Pain of desire or of unsatisfied desire

b) Pain of disappointment.
c) Pain of regret

2. PAIN OF SENSE:- These are the following

 Hunger and thirst

 of taste

 of smell

 of touch

 of hearing and sight

 excess of cold or heat

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  diseases and

 fatigue.

3. PAINS OF MAL-ADDRESS

These are experienced in fruitless attempts or laborious efforts to apply to their different use
the various kinds of tools or instruments, whether of pleasure or pain.

4. PAINS OF ENEMITY

These pains result when a man feels when he believes himself actually an object of the
malevolence on the part of certain individuals and apprehends that he may be exposed in
consequence to experience the practical effects of their hatred.

5 PAINS OF A BAD REPUTATION

They may be called pains of dishonor or pains of the popular sanction. These result when a
man feels that he is an object of malevolence or contempt of the world which surrounds him.

6. PAINS OF PIETY which result from the fear of having offended the Supreme being .

7. PAINS OF BENEVOLENCE which result from the sight or thought of the suffering
whether of men or animals.

8. PAINS OF MALEVOLENCE which are called pains of antisocial affections or pains of

antipathy. These result from the happiness of those we hate.

9. PAINS OF MEMORY, OF IMAGINATION AND OF FEAR

The study of the subject of offences involves a comparison, a calculation of pains and
pleasures.

CIRCUMSTANCES WHICH AFFECT SENSIBILITY-

Pains and pleasures may not be experienced in the same manner by all. It depends on the
following circumstances:

PRIMARY CIRCUMSTANCES:

1. TEMPERAMENT- Radical and primitive disposition [ tendency to have extremist &

traditional views] acquired by birth itself.

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 2. HEALTH - When sick; we are less sensible to causes of pleasure, and more to those of
pain.

3. STRENGHTH- A man may feel feeble compared with other men ; and yet he may not
be unhealthy or invalid.

4. CORPORAL IMPERFECTIONS- Some remarkable deformities or disorder of body

or mind.

5. KNOWLEDGE & INTELLECTUAL FACULTIES

6. FIRMNESS OF SOUL

7. PERSEVERANCE

8. BENT OF INCLINATION (Previously formed ideas of Pain & Pleasures

9. NOTIONS OF HONOUR

10. NOTIONS OF SYMPATHY& ANTI- PATHY - Finding pleasure in happiness of

others and pain in sorrows of others compels us to share their pains Conversely is also
true

11. PECUNIARY CIRCUMSTANCES

SECONDARY CIRCUMSTANCES which affect sensibility:

1. SEX: The sensibility of women seems to be greater than that of men. Their health is
more delicate. They are generally inferior in strength of body. knowledge, the
intellectual faculties and firmness of soul. Their moral and religious sensibility is more
lively, sympathies, and antipathies have a greater empire over theme The honor of a
women consists more in modesty and chastity, that of a man in probity and courage.
The religion of a woman more easily deviates towards superstition ie, towards minute
observance. Her affections for her children are stronger during their whole life,
especially during their early youth. Women are more compassionate for those whose
sufferings they see. The domestic economy is best placed in the hands of the women,
the principal management of affairs in those of the man.

2. AGE: Each period of life acts differently upon sensibility. It is extremely difficult to
state particulars, since the limits of the different ages vary with individuals, and in fact
are arbitrary with regard to all.

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 3. RANK: In general, it may be said that the amount of sensibility is greater in the upper
ranks than in the lower, the ideas of honor in particular are more predominant.

4. EDUCATION: Health, strength, robustness etc, may be referred to physical education;

to intellectual education belongs the amount of knowledge, its kind, firmness of soul,
to moral education appertain the bent of inclinations, the ideas of honor and religion,
the sentiments of sympathy.

5. HABITUAL OCCUPATIONS, WHETHER OF PROFIT OR OF AMUSEMENT

AND CHOICE: They influence all other causes - health, strength, knowledge etc.

6. CLIMATE: It seems to be proved that in warm climates men are less strong, less
robust, they have less need to labour, because the earth is more fertile, they are more
inclined to the pleasures of love. All their sensibilities are quicker, their imagination is
more lively, their spirit is more prompt.

7. RACES: A Negro born in France or in England is in many respects a different being

from a child of the French or English race. The race may, perhaps have an influence
upon that natural disposition which serves as a foundation of all the rest .. Afterwards,
it operates much more sensibly upon the moral and religious bias, upon the sympathies
and antipathies.

8. GOVERNMENT: This exercises an influence of the same sort with that of education.
Its influence is immense, it extends to almost everything in fact it embraces everything
except temperament, race, climate. For even health may depend upon it in many
respects. Under a government well constituted, though with a bad constitution, it will
be seen that men are more generally governed by honor and that honor is placed in
actions more conformed to public utility.

9. RELIGIOUS PROFESSIONS We may derive from this source pretty clear indications
with respect to religious sensibility, sympathy antipathy and the ideas of honor and
virtue. In certain cases, we may even judge the intelligence, strength or weakness of
mind and the disposition of an individual from the sect to which, he belongs.

PAINS AND PLEASURES CONSIDERED AS SANCTIONS-

The will cannot be influenced except by motives, but when we speak of the motives we speak
of pleasures or pains. The pain or pleasures which is attached to a law from what is called its
sanction. Pleasures and pains may be distinguished into four classes:-

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 1. PHYSICAL: - Those pleasures and pains which may be expected in the ordinary
course of nature, acting by itself, without human intervention, compose the natural or
physical sanction.

2. MORAL: - The pleasures or pains which may be expected from the action of our
fellow men in virtue of their friendship or hatred compose the moral sanction or
popular sanction.

3. POLITICAL: - The pleasures or pains which may be expected from the action of the
magistrate on virtue of the laws compose the religious sanction or legal sanction.

4. RELIGIOUS: - The pleasures or pains which may be expected in virtue of the threats
or promises of the religion compose the religious sanction.

A man's house is destroyed by fire. Is it in consequence of his imprudence?- it is a pain

of the natural sanction. Is it by the sentence of a judge? - it is a pain of the political
sanction. Is it by the malice of his neighbours?- It is a pain of the popular sanction Is it
supposed to be the immediate act of an offended divinity? it is a pain of the religious
sanction or judgement of God?

II. ASCETIC PRINCIPLE:

Ascetic is a person who is very severe in self- discipline and abstinence (self-control].

They have a horror of pleasure, for they believe that attraction to pleasure will ultimately lead
to evil and immoral consequences.

Ascetic philosophers believe that everything (including laws) which tend to reduce enjoyment
is good and which tends to promote or increase enjoyment is bad. In their eyes; man is a
degenerate being; who ought to be punished for the crime of being born. They believe that
every moment of voluntary pain and abstinence will help them to attain spiritual happiness or
happiness in another life. Bentham says that Ascetic principle is based on a false idea of
utility. This principle has been supported mainly by philosophers and devotees.

III. ARBITRARY PRINCIPLE [PRINCIPLES OF SYMPATHY & ANTIPATHY]

According to this principle; an action is judged to be good or bad on the basis of the personal
sentiments, likes and dislikes of the person. According to this principle; laws are not judged
on the basis of utility, reasonableness or morality; but only on the basis of the tastes, feelings,

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pleasure or displeasure it causes to the sovereign. He need not give reason or justification for
his likes or dislikes. Hence, it is supported mainly by despots and dictators. Laws are to be
based on the feelings of sympathy and antipathy [likes and dislikes] of the sovereign haws
need no other reasons for its validity other than the approval and satisfaction of the sovereign.
The fact that it is reasonable or unreasonable, useful or painful to the subjects is totally
irrelevant.

 CAUSES OF SYMPATHY & ANTIPATHY

CAUSES OF ANTIPATHY-

1) Repugnance of sense -Anything which causes a feeling of repulsion to our senses is a

cause of antipathy

2) Wounded pride- Dislike for persons who do not share same opinion, gives a feeling
that they do not respect our knowledge and that they will spread this contempt.

3) Controlled power- A feeling that differences of opinion and resistance and objections
to our opinions will limit our powers and make us weak.

4) Confidence in future weakened or destroyed- Every action on the part of others

which do not conform with our ideas of happiness weakens our confidence in our
future.This is a cause of antipathy.

5) Desire for Unanimity- Lack of Unanimity causes Antipathy. Conversations, likes and
dislikes of persons which are opposite to ours causes discontent and hatred.

6) Envy - Sorrow, anger or discontent in the enjoyment, happiness and achievements of

others, causes Antipathy. This may be due to differences in age, wealth and
circumstances. Envy makes ascetics and attraction towards rigid beliefs in morals.

CAUSES OF SYMPATHY are the exact convers (opposite) of the above mentioned causes
of Antipathy.

IV- MORALITY PRINCIPLE

Relation between Law and Morality-

Bentham: “Morality is the art of directing the actions of men in such a way so as to produce
the greatest possible sum of good.”

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Morality is the rightness or pureness of man's behaviour and action. Morality comes into
question in every part of friendship, a man’s life be it family, employment, business,
profession, education, politics, entertainment and so on. Morality is all pervading as it is a
part of the law of nature. Whether a person decides to follow or apply moral principles in his
life or not is an entirely different question. The science of morality is known as Ethics.

There is a close relationship between law and morality but there are also differences between
Law and Morality. Those differences are:

LAW MORALITY

1. Law demands to the absolute subjection 1. Morality demands that men should act
to its rules and commands. from a sense of ethical duty

2. Law has enforcing authority from State. 2. Morality has no such authority from State.

3. It is heteronomous (being imposed upon 3. It is autonomous (coming from the inner

men from the outer life of men.) life of man).

4. Law regulates men relation from others 4. It governs with the inner life of men.
and from society.

5. A promissory note is in force for three 5. If the promissory note is time barred then
months, it is the debtor duty to repay the the legal duty of the debtor turns into the
loan. It is the legal duty. The creditor can moral duty. Of course moral duty cannot
enforce a legal action against the debtor be enforced by law.
within three years from the date of
execution of the promissory note before
the court of law.

6. Legal duty involves a corresponding duty. 6. It is also accompanied by corresponding

right. But it is not enforceable by law.

7. The State provides for organised 7. There is no such organised machinery for
machinery for enforcement of law. enforcement of morals.

8. Legal disputes can only be settled by 8. Moral rules do not admit even in particular
operation of law. change by legislation.

9. Legal disputes can only be settled by 9. Moral disputes can be solved by mediation
operation of law. of caste elders, village elders, etc.

10. Law can only be settled by operation of 10. Morality applies to every human act.
Law.

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 11. Law applies to citizens if they want it 11. The morality also applies to all persons.
or not. But it depends from persons to persons,
from religion to religion, society to
society. It is his pleasure whether to
follow or not.

12. Law cannot be changed into morals. 12. But morals, sometimes can be converted
into law.

CONCLUSION:

"C.K. Allen: "Our judge have always kept their fingers delicately but firmly upon the pulse of
the accepted morality of the day"

Lord Mansfield: "There are some basic norms of conduct on which rests the structure of
social order. A legal order cannot be totally be separated from it. Some shared morality is
essential to the existence of any society."

Supreme Court opined: “Still there is a substantial body of law in which moral imperatives
are deemed to be essential for the social being

Morality commands each individual to do all that is advantageous to the community in which
his personal advantage is also included.

But there are many acts useful to the community which legislation should not command. Eg
Acts of charity, saving persons from accidents, et. There are also many injurious actions
which legislation should not prohibit although it is prohibited by morality. The concept of
morality' itself differs from society to society, for instance in the field of homosexuality, pre-
marital and extra-marital relations, prostitution, gambling, drunkenness, etc.

As a general rule, legislation should permit greatest possible latitude (freedom) to individuals
to judge and follow their own interests. Interference of law is necessary only to prevent the act
of an individual from being injurious to others on many cases morality derives its existence
from law. In order to decide; whether the action is morally good or bad; it is necessary to
know whether it is prohibited by law or not. At the same time, the converse is also true.

To conclude; Legislation has the same center with morals: but not the same circumference.

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 LEGISLATIVE DRAFTING

I. EQUIPMENTS OF A DRAFTSMAN

Legislative drafting is a highly difficult task requiring a special skill and ability. Just because
a person an efficient lawyer or great judge does not mean that he can be a good draftsman. A
seminar for the training of legislative draftsmen conducted in 1972 under the Common wealth
fund for technical co-operation suggested the following qualifications of a good draftsman:

a) Should be above average in his professional qualifications in the legal field.

II. Must have experience in legal practice, preferably in the legal service of
Government.

III. Must have facility in the use of the language of legislative enactments.

IV. Must be interested in drafting and possessed of a systematic mind, an orderliness in

the formulation of thoughts, ability to pay meticulous attention to detail and to work
with accuracy under pressure.

V. Must have an enquiring, critical and imaginative mind.

VI. Must be able to work with colleagues and those skilled in other disciplines and
disposed to give and take constructive criticism and advice and

VII. Must be endowed with common sense and social awareness.

The art of craftsmanship consists of a sense of use of language, precise conception of the
objects desired and knowledge of the technical interpretations which are placed by law on
certain forms of language.

But unfortunately Indian draftsman do not seem to follow principles of lucidity and simplicity
Fgs: Tax laws and hand Reforms Acts. Due to numerous sub-sections, sub-clauses,
exceptions, exemptions, provisos, etc coupled with highly complicated wordings and cross-
references create confusion. Result - Loopholes in law, unending litigations and difficulties in
interpretation.

Thus it is the duty of a draftsman to use clear and appropriate language to express what he
wants.

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RULES OF MONTESQUIEU-

Montesquieu in his L 'esprit-des Lois had laid down seven rules of legislative diction, These
are summarised by C. K.Allen as follows:-

1. The style should be both concise and simple; grandiose or rhetorical, phrases are
merely distracting surplus age;

2. The terms chosen should, as far possible, be absolute and note relative, so as to leave
the minimum of opportunity for individual difference of opinion.

3. The laws should confine themselves to the real and the actual, avoiding the
metaphorical or hypothetical.

4. They should not be subtle "for they are made for people of mediocre understanding;
they are not an exercise in logic but in the simple reasoning of the average man."They
should not confuse the main issue by any exceptions, limitations or modifications save
such as are absolutely necessary

5. They should not be argumentative, it is dangerous to give detailed reasons for laws, for
this merely opens the door to controversy;

6. Above all, they should be maturely considered, and of practical utility and they should
not shock elementary reason and justice, for the weak, unnecessary and unjust laws
bring the whole system of legislation into disrepute and undermine the authority of the
State.

OTHER GENERAL PRINCIPLES OF LEGISLATION

In addition to the above the following are required too:

 Accuracy & precision of language- Draftsman must have an attitude of self- criticism.
Must remember that what seems clear to him need not be equally clear to the reader.

 Avoid ambiguities and doubts, should foresee difficulties and loopholes.

 Independent scrutiny - It would be better to get his work scrutinized by an independent

critic to find out defects.

 He should be familiar with rules of interpretation and General clauses Act.

 Language used should not be too broad nor too narrow. Enough to cover all cases
intended.

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  Same word should be used in same sense throughout the statute. Different words
should not be used for indicating same thing. Should not vary spelling of same word

 Different matters should not be dealt with in one Act.

 A section which depends on another section shall not be placed before the section on
which it depends

 Temporary and transitional provisions should be placed at the end so that they can be
repealed or omitted after their purpose is over.

 Short title and definitions ought to be placed first.

 Matters in detail should be placed in Schedules.

In addition to the above principles of legislation, an INDIAN DRAFTSMAN must equip

himself with the following:

i) Full and intimate knowledge of Indian statute

ii) Familiar with legal principles expounded by Indian courts.

iii) Full and intimate knowledge of Constitution especially Fundamental rights and
distribution of legislative powers between Centre and states.

iv) Experience of Indian Parliament, its procedure, administration, Courts at work and life
of Indian Community.

IV MORAL PRINCIPLES OF LEGISLATION

(i) Statute should not confer power without responsibility

(ii) An Act imposing far reaching reforms should not be brought in to force immediately.

(iii) An obligation impossible of performance should not be imposed.

(iv) The jurisdiction of ordinary courts should not be excluded unless there are strong
reasons for so doing.

(v) An immunity from liability given to state agencies should be kept to a minimum.

(vi) When jurisdiction is given to determine questions of right, the desirability of having
a provision for appeal should be considered.

(vii) Legislations should not be in consistent with the elementary reason, justice or
common sense. Since a draftsman is better acquainted with law he can advise
whether the proposed legislation is fair or not.

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SOLVED PRACTICAL PROBLEMS FROM PREVIOUS QUESTION
PAPERS

Q 1- Sales Tax Act exempted “Green Vegetables" from the ambit of sales tax. 'X' a trader
in sugarcane claimed exemption on the ground that sugarcane falls within the purview of
Green Vegetables. Decide.

FACTS: Write down from the question.

ISSUES: 1]Whether sugarcane can be considered as a green vegetable for the purpose of
getting exemption from the Sales Tax Act?

2] Whether common parlance meaning or dictionary meaning should be adopted to ascertain

the legislative intent?

3] Which general rule of interpretation should be followed to ascertain the legislative intent?
Literal or Golden rule?

4] Which specific rule of interpretation should be followed while construing Taxing

Statutes, especially the exemption provisions?

REASONING/ ANALYSIS: Facts of the problem are similar to those in the leading case of
Motipur Zamindari Co: (P) Ltd vs State of Bihar (1962). Under the Bihar Sales Tax Act,
1947, 'green vegetables' were exempted from tax. The main issue was whether 'sugarcane' is a
'green- vegetable'

Supreme Court applied the Golden rule of interpretation and held that 'sugarcane' is not a
green vegetable according to common parlance meaning in the sense that it is not used,
cooked and consumed like other ordinary vegetables. Hence, sugarcane is taxable under the
Bihar Sales Tax Act, 1947. If literal rule and dictionary meaning had been applied in this case,
sugarcane would have been treated as a green vegetable according to its botanical meaning.
This would have led to undue hardship as the government would have lost a large share of
revenue, which would be against the legislative intent of the makers of the statute.

Generally, STRICT RULE of interpretation is to be followed in case of taxing statues. It

means that a person can be taxed only if the words of the taxing statute clearly, expressly and
unambiguously (without confusion) impose tax liability upon him. While interpreting a taxing
statute, if any ambiguity (confusion) occurs, that is if the words of the taxing statute are open

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to double meaning; one is favour of the assessee and one against him, then that meaning
which is favorable to the taxpayer must be adopted. There is nothing wrong or unjust if the
assessee escapes from tax liability due to inability of the legislature to express itself clearly.

CIT vs Jalgaon Electric Supply Co: (AIR 1960 SC 1182)- It is also true that exemption
provisions under any law including tax laws should be construed liberally. Especially if the
purpose of interpreting exemption is public good or social welfare. But while interpreting the
classification of a good (that is, while deciding whether a particular good is taxable or not),
it's common parlance meaning (popular meaning) should be adopted, unless the Act gives a
special meaning to that good. Otherwise, it would defeat the very intent of the legislature and
promote tax evasion and tax avoidance.

JUDGEMENT/DECISION: Sugarcane cannot be considered as a green vegetable for the

purpose of claiming exemption from levy of sales tax. It is taxable.

Q 2 -The Sales Tax Act of State 'K' imposes tax on "vegetables, edible leaves and nuts".
The authorities taxed sale of areca nuts, betel leaves and sugar cane. The traders
challenged the same. Decide.

FACTS: Write down from the question.

ISSUES: Please refer the answer of Q: No: 1 and write with necessary modifications.

REASONING/ANALYSIS: Please refer the answer of Q: No:1 and write with necessary
modifications.

JUDGEMENT/DECISION: Arecanuts and betel leaves can be taxed. But Sugarcane is

not taxable as it cannot be brought under categories of vegetables, nuts and arecanuts.

Q 3- An Act stipulated that a particular order should be made in “open court". In a

particular case the order was made in a room adjacent to the court room. Examine whether
the order is valid.

FACTS: Write down from the question.

ISSUES: 1) Whether pronouncing of orders of court in a room which is just adjacent to the
actual court room can be treated as pronouncement in 'open court'.?

1) Can the court order be invalidated on this ground?

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 2) Which rule of interpretation should be followed in this case to ascertain the true
legislative intent?

3) Whether pronouncing of orders of court in a room which is just adjacent to the actual
court room can be treated as pronouncement in 'open court'.?

4) Can the court order be invalidated on this ground?

5) Which rule of interpretation should be followed in this case to ascertain the true
legislative intent?

REASONING /ANALYSIS: Facts of the problem are similar to those in the case of Kenyon vs
Eastwood (1888). In this case, an Act provided that orders of committal should be made in 'open
court'. Applying the LITERAL OR GRAMMATICAL RULE OF INTERPRETATION, the court held
that orders made in the room next to the actual court room was invalid, even though that room was
also open to the public.

According to this rule, the words of a statute must be given their strict, plain, ordinary,
natural, grammatical meaning, unless the statute itself says that it has a different or additional
meaning. There is no room for presumptions and imaginations. Nothing should be added to or
subtracted from the words. According to PATON, if the meaning of a section is plain, it is to
applied whatever may be the result or consequences. MAXWELL says that Literal Rule of
interpretation is the only safe rule.

JUDGEMENT/ DECISION: Orders pronounced in the room adjacent to the actual court
room is invalid, as it cannot be treated as a pronouncement in 'open- court.

Q 4- The Street Offences Act of England prohibited and penalized prostitutes for “soliciting
in a street”. Prostitutes started attracting people from their balconies and through their
windows. Discuss whether they have violated the law and can be brought within the
purview of the Act.

FACTS: write down from the question.

ISSUES: 1)Whether soliciting passer-bys from windows and balconies of buildings by

prostitutes could be considered as a 'street offence' as per Street Offences Act?

2) Which rule of interpretation ought to be applied in this case in order to implement the true
object and legislative Intent behind the Street Offences Act?

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REASONING / ANALYSIS: Facts of this problem similar to the leading case of Smith vs
Hughes (1960) (WLR 830). As per the Street Offences Act 1959 in England, it was a crime
for prostitutes to solicit in the street for the purposes of prostitution. In this case, the
prostitutes were calling out to passerbys men in the street from their balconies, showing signs
and tapping on windows, in order to attract their attention. They contended that these acts
could not be considered as a street offence. Because sitting inside a house would not
constitute a 'street'.

Court applied the MISCHIEF RULE of interpretation and held that the prostitutes were
guilty of 'street offence'. The object of the Street Offences Act, 1959 was to handle the
mischief of prostitution in the streets and to 'clean up' the street so that people could walk
along freely without being harassed and solicited by prostitutes. Hence, the exact place
(whether inside or outside the house) from where a prostitute calls or sends signals is
irrelevant.

MISCHIEF RULE, also known as 'REGARD TO SUBJECT AND OBJECT or the

HEYDON'S RULE is a secondary rule of interpretation which says that when the words of a
statute lead to two or more interpretations, then the court must adopt that interpretation which
'advances the remedy and suppresses the mischief'. This way, the true intention of the
legislature can be ascertained. For this the court also refers to the background history behind
the statute to consider 4 questions:

1) What are the common law before the coming of the statute?

2) What was the mischief or defect for which the common law did not provide? [ In other
words, what was the evil or harm which the common law could not remedy?]

3) What was the remedy that the parliament hath resolved and appointed to cure this
mischief?

4) The true reason for the remedy.

Mischief rule is a PURPOSIVE CONSTRUCTION which deviates from the mechanical

literal approach to interpretation and adopt a modern positive approach by concentrating on
the PURPOSE of the Act.

JUDGEMENT / DECISION: The prostitutes are guilty of 'street offence' under the Street
Offences Act.

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Q: 5-An Act prohibited under penalty, the sex workers from soliciting "in a street". X, a
sex worker attracted the attention of passersby from balconies and windows of her house.
Decide whether X can be penalized under the Act.

FACTS: write down from the question.

ISSUES: Refer answer to Q No:4

REASONING / ANALYSIS: Refer answer to Q No:4

JUDGEMENT / DECISION: Yes. The sex workers can be penalised under the Act for
committing 'street offence'.

Q 6- A provision in a statute requires a person to obtain a licence for the sale of milk,
butter or other milk products. X without a licence was engaged in the sale of ghee. Discuss
the liability of X.

FACTS: write down from the question.

ISSUES:

1) Whether ghee can be considered as a milk product of the same category as milk, butter
and curd?

2) Whether the person is required to take license as per this statute for sale of ghee?

3) Which rule of interpretation should be followed in this case, to ascertain the true
legislative Intent behind the statute.

REASONING /ANALYSIS: Facts of the problem similar to those in the leading case of
Ratanshi Hirji vs Emperor (1937 B,274). In this case, under the Bombay Municipal Act,
license was required for sale of milk, butter or other milk products. Applying the rule of
EJUSDEM GENERIS, the court held that the words 'other milk products' would mean milk
products subject to speedy decay like curd, cream or whey. Hence, ghee which has a long
shelf life is not covered under the category of 'other milk products' under the Act. Hence, not
required to take license. EJUSDEM GENERIS rule, also known as Lord Tenterden's rule,
literally means 'of the same kind'. Following are the conditions for the application of this
rule:

4) There must be an enumeration of specific words.

5) These specific words must be of a particular class or genus.

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 6) These specific words should not be exhaustive.

7) These specific words should be followed by general words.

8) If these conditions are satisfied, then the general words should be considered as of the
same species as of the specific words. In short the specific words are the genus and the
general words following it are of the same species.

JUDGEMENT/DECISION: Ghee cannot be considered as a milk product of the same

category as butter, curd or whey. The seller need not required to take licence for the sale of
ghee as per the provisions of the statute.

Q 7- Accused was convicted under section 16 of the Prevention of Food Adulteration Act
1954 for selling adulterated butter. He contended that it was not butter within the meaning
of the rules made under the Act because butter means butter made from milk whereas he
had sold butter made from curd. It was further contented that being a penal statute the
word butter had to be strictly construed in favour of the accused. Discuss.

FACTS: Write down from the question.

ISSUES:

1) Can butter made from curd be brought outside the purview of the Prevention of Food
Adulteration Act?

2) Can the accused escape liability on this ground?

3) Which rule of interpretation must be adopted in case of Penal Statues?

4) Can the benefit of doubt in case of ambiguity be given to the accused?

REASONING/ANALYSIS: Facts of the problem similar to those in the leading case MLV
Joshi vs M.U. Shimpi & Anr.(AIR 1961 SC 1494). One of the contentions raised by the
appellant was that the Prevention of Food Adulteration Act, being a penal statute, he would
not be liable for conviction unless the butter seized from him was butter within the meaning
of the Act.

As per the Act, 'Butter' was defined as 'a product prepared exclusively from the milk or cream
of cow or buffalo or both, or without the addition of salt and annato and shall contain not less
than 80% of milk fat and not more than 10% of moisture. The appellant contended that his
butter being made from curd, he could not be brought within the purview of the Act (by virtue

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of applying STRICT INTERPRETATION OF PENAL STATUES) in case of ambiguity in
interpretation of a penal section, the benefit of doubt should go to the accused, an
interpretation favorable to the accused should be adopted if he cannot be brought within the
clear words of the Statute.

But the court rejected the contentions of the appellant and held that whatever process is
adopted, whether butter is taken directly out of milk or taken out of soured milk or cream, it is
eventually prepared from milk only. The only difference between the two is that in the case of
butter prepared from curd, there is no intervening souring process which is not necessary in
the case of butter directly prepared from milk or cream. In short, butter, by whatever process
it is prepared is a product prepared from milk. And it will be treated as adulterer in case of
noncompliance with the standard requirements of the Prevention of Food Adulteration Act.

Adopting a different approach, would defeat the very purpose of Prevention of Food
Adulteration Act in 1954. Therefore, butter prepared out of curd clearly falls with the plain
words of the statute. The emphasis should be on the basic material from which butter is
prepared (milk), and not on the process by which it is made. Dahi (curd) is prepared from
milk itself by souring it. Butter prepared from Dahi (curd) can therefore be treated as butter
prepared from milk itself, after subjecting the milk to souring. Hence, the appellant was held
liable under the Prevention of Food Adulteration Act, 1954. However, his conviction was
reduced from imprisonment to fine.

JUDGEMENT/DECISION: The accused is guilty of selling adulterated butter under

Prevention of Food Adulteration Act, 1954. As per the strict rule of interpretation of penal
statues, that accused can be clearly brought within the plain words of the statute.

Q 8- A provision in the Motor Vehicles Act requires the driver of a motor vehicle “to stop
the vehicle after an accident”. A driver of a lorry ran over a motor cyclist, stopped the
vehicle for few minutes and left the spot thereafter. When charged for violation he argued
that the law required him only to stop and not to remain there. Decide.

FACTS: write down from the question.

ISSUES:

1) Whether the accused can be held to have complied with the provisions of the Road
Traffic Act by momentarily stopping after causing and seeing the accident?

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 2) How many minutes or seconds should be 'stopping' his vehicle after the accident?

3) Which rule of interpretation should be followed in this case to ascertain the true
legislative intent?

4) Can the accused be held liable for violation of the relevant provisions of the Road
Traffic Act?

REASONING /ANALYSIS: Facts of the problem are similar to those in the leading case of
Lee vs Knapp (1967). In this case the court applied the GOLDEN RULE OF
INTERPRETATION and held that the driver should 'stop' the vehicle until the concerned
authorities (like Police or traffic officials) reach the spot. If literal rule was applied to this
case(as the Act was silent to how many minutes or seconds the driver should stop the vehicle
after involving in the accident) it would have led to absurd and unjust results. For instance,
the driver of a vehicle which caused the accident would stop his vehicle for about half a
second and drive off or the driver could escape alone after stopping his vehicle at the spot.
Such absurd consequences could never have been intended by the legislature.

JUDGEMENT /DECISION: The driver of the vehicle is liable for violation of the Road
Traffic Act. He should have stopped his vehicle until the concerned authorities reach the spot
and completed the procedural formalities.

Q 9- A provision of Road Traffic Act required the driver of a motor vehicle to "stop" if the
vehicle involves in an accident. P, while driving his van hit a car that was parked on the
road. He stopped momentarily and then ran away. Is P liable for punishment under the
Act?

FACTS: Write down from the question.

ISSUES: Please refer the answer to Q No:8

REASONING /ANALYSIS: Please refer the answer to Q No:8

JUDGEMENT /DECISION: Please refer the answer to Q No:8.

Q 10- 'X' while riding in his car injured a pedestrian when he was crossing the road. X
suddenly stopped the car and on seeing that the pedestrian was injured, he drove the car
without taking the injured to the hospital. Sec 77(1) of the Road Traffic Act require the
driver of the motor vehicle to stop after an accident. Discuss the liability of X as per section
77(1) of the Act.

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 FACTS: Write down from the question

ISSUES: Please refer the answer to Q No:8

REASONING /ANALYSIS: Please refer the answer to Q No:8

JUDGEMENT /DECISION: Please refer the answer to Q No:8

Q 11- The driver of a motor vehicle stopped the vehicle for a moment after causing an
accident and ran away. It was contented before the Court that the driver had fulfilled sec.
77 (1) of the Road Traffic Act 1960 which provided that the driver causing an accident
shall stop after the accident. Discuss how the word stop should be interpreted in this
context.

FACTS: Write down from the question.

ISSUES: Please refer the answer to Q No:8

REASONING /ANALYSIS: Please refer the answer to Q No:8

JUDGEMENT /DECISION: Please refer the answer to Q No:8.

Q 12- An Act prohibited under penalty; the performance of stage plays without license.
Without license 'P', directed a play, wherein the actors did not appear on stage but acted
from a chamber beneath and their fingers were reflected by mirrors so as to appear to the
spectators. Decide whether 'P' is liable under the Act?

FACTS: Write down from the question.

ISSUES:

1) Whether reflections through mirror of drama enacted below the stage would amount to a
'stage performance'?

2) Would license be required for mirror reflections of drama performances where the
actors are noted actually performing on a stage?

3) Which rule of interpretation should be followed in this case to ascertain the true
legislative intent?

REASONING/ANALYSIS: Facts of the problem are similar to those in the leading case of
Day vs Simpson (1885). In this case; the Theater’s Act, 1843 prohibited performance of

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stage- plays without license. Court held that this prohibition would apply to indirect stage
performances through mirror reflections from below the stage-chamber. The Court adopted
the GOLDEN RULE OF INTERPRETATION also known as WEDNESLEYDALE
RULE here. Golden rule of interpretation says that the words of a statute must be prima-facie
given their plain ordinary meaning if the words of the statute are clear, unambiguous. But, if
such a plain literal grammatical construction would lead to absurd and unjust results, then the
court vary or modify the language of such words; so as to avoid such inconvenience; but no
further.

In this case, if the word 'stage - performance' used in the Act was given its plain literal
ordinary meaning; then the persons conducting indirect stage- performances through mirror
reflections would escape from liability to take license under the Act. The legislature would
have never intended at all to encourage such evasive fraudulent activities to escape taking
license through the loop holes in the law. Hence, persons presenting drama to the public
through mirror reflections of actors from an underground chamber by projecting the
reflections on the stage by affixing huge mirrors on the stage are actually doing an indirect
state performance.

JUDGEMENT /DECISION: 'P' is liable to take license under the Act.

Q 13: The Dramatic Performances Act of England prohibited plays "on stage without
licence from the local authorities". 'A' a theatre manager built a chamber below the stage,
the drama was enacted in the underground chamber without licence, and was reflected on
to the stage using huge mirrors for the audience to see. Discuss whether A is liable for not
obtaining licence.

FACTS: Write down from the question.

ISSUES: Refer answer to Q No:12 REASONING/ANALYSIS: Refer answer to Q

No:12 JUDGEMENT /DECISION: Refer answer to Q No:12

Q 14 - Sec.6 of the Probation of Offenders Act imposes restrictions on imprisonment of

offenders under twenty-one years of age. X, an accused charged under S.302 IPC was
below 21 years of age on the date of offence. But he was above 21 years when the trial court
pronounced the sentence. The court refused to give him the benefit of probation. X files
appeal against the judgment. Decide.

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 FACTS: Write down from the question.

ISSUES:

1) Whether a person who was below 21 years of age on the date of commission of the
offence but about 21 years of age on the date of conviction; claim the benefits under
section 6 of the probation of offenders Act?

2) Which rule of interpretation should be followed by the court in such cases; in order to
ascertain that true legislative intent?

REASONING /ANALYSIS: Facts of the problem are similar to those in the case of Ramji
Missar vs State of Bihar (1963) Supreme Court applied the GOLDEN RULE of
interpretation and laid down that the crucial date on which the age of the offender had to be
determined is not the date of the offence, but the date on which the sentence was pronounced
by the trial court. An accused who on the date of the judgement, was above 21 years, he is not
entitled to the benefit of the Probation of Offenders Act.

The court reached at this conclusion having regard to the object of the Probation of Offenders
Act. The object of this statute is to prevent the turning of youthful offenders into criminals by
their association with hardened criminals of mature age inside prison. Therefore, only an
accused below 21 years is entitled to the benefit of the Act by sending him under supervision
of a probation officer instead of jail. As per the golden role of Interpretation, the words of a
statute should be given their plain ordinary meaning if the words are clear and unambiguous.
But, if such a plain literal, grammatical construction would lead to unjust results and manifest
absurdity, then the court can vary or modify the language of the words, in order to arrive at
the true intention of the Legislature.

JUDGEMENT /DECISION: 'X' is not entitled to the benefit of section 6 of the Probation of
Offenders Act, because he was above 21 years of age as on the date of his conviction.
Q 15- The Poor Relief Act of England imposed a lesser rate of tax "on occupiers of lands,
houses lithes and coal mines". A gold mine owner sought to take advantage of the lesser
rate of tax under the law. Examine whether his claim his tenable.
FACTS: Write down from the question.

ISSUES:
[1] Whether the gold-mine owner can claim the relief of lesser tax rate on his land under
the Poor Relief Act 1601?

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 [2] Whether the word ‘land’ mentioned in the sentence of ‘land, houses, tithes and coal
mines’ under the Poor Relief Act 1601 would include land containing gold-mines?

[3] Whether the express mention of the word coal mines’ in the sentence ‘land, houses ,
tithes and coal mines’ under the Poor Relief Act 1601 implies exclusion of lands
containing all other types of mines?

REASONING/ANALYSIS: Expressio Unius Est Exclusio Alterius -Also Referred to As

Expressum Facit Cessaty Tacitum means: "The express mention of one thing implies the
exclusion of others”. In other words; when the words of a Statute expressly mentions or states
something; it means that whatever is NOT mentioned or NOT stated is excluded.

Eg' X' has lands in Calicut, Kochi and Wayanad. He agrees to sell his land in Calicut to Y "
here; the express mentioning of the land in-Calicut in sale deed impliedly but clearly excludes
the lands in Kochi and Wayanad, from sale.

Sec. 164 CPC says that confession should be recorded by Judicial Magistrates or
Metropolitan. Magistrates. Thus, Executive Magistrates are clearly excluded.

Secs. 91 to 100 of Indian Evidence Act says that wherever documentary evidence is available
to prove a fact; oral evidence should not be produced. This is known as exclusion of oral
evidence by documentary evidence;

The Indian Contract Act lays down expressly the conditions for capacity to contract... namely
the parties should be major, sound mind and not disqualified from contracting under any law.
Here, the express mention of these conditions impliedly but clearly excludes minors, lunatics
and other disqualified persons from contracting.

Facts of the problem similar to those in the cases of R. V. Inhabitants of Sedgley (1831) 2 B
& Ad 65 and Gilmore [Valuation Officer] vs. Bakercarr[1962]1WLR1165.

In these cases, the court held that the tax levied on occupiers of ‘land, houses, tithes and coal
mines’ under the Poor Relief Act 1601 could not be levied on owners of other types of mines
like lime-stone mines or gold mines. This case is perfectly clear as otherwise there was no
explanation for the insertion of the word ‘coal’. It was held that even though the word ‘land’
encompasses all types of mines, the specific mention of one kind of mine[coal-mine] clearly
showed that all other types of mines are excluded. Thus, the express mention of one thing
implies the exclusion of others.

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OTHER ILLUSTRATIVE CASES ON - Expressio Unius Est Exclusio Alterius:

*Bennet Coleman vs. VOI (AIR 19 73 S (106)- The Constitution of India expressly says that
fundamental rights under Arts 15,16 and 19 are available only to citizens of India. Supreme
Court held that therefore non-citizens and artificial legal persons are impliedly but clearly
excluded from claiming these rights. However, Indian citizens can claim these rights through
their artificial legal persons: because ultimately the relief goes to citizens.

*B. Shankara Rao vs St of Mysore (1969)3 SCRI- It was held that axpressio unius- principal
is' a principle of logic and common sense; and not merely a technical sule of interpretation.

Shree Durga distributors vs. State of Karnataka (2007)4 SC C 476- Karnataka VAT Act,
2003 exampled "animal feed and feed supplements, namely. processed commodity sold as
poultry feed, cattle feed, pig-feed, fish feed, frown-feed and shrimp-feed" from tax. Applying
the rule of Expressio unius est exclusio alterius: Court held that the Section is express and
exhaustive hence, not applicable to dog-feed and cat-feed. However; it it's to be kept in mind
that Expressio unius." is not an obligatory rule of interpretation. It cannot be used to defeat the
intention of the legislature.

JUDGEMENT/DECISION- A gold mine owner cannot take advantage of the lesser rate of tax
under the law. His claim his not tenable.

Q 16- A statute empowers the local authority of a state to impose tax on houses, buildings,
works, tenements and hereditaments. The local authority sought to impose tax on vacant
land of 'X'. Advise 'X'.

FACTS: Write down from the question.

ISSUES:

[1] Whether the local authority is empowered to impose tax on the vacant land of ‘X’
when the word ‘land’ is not at all used by the Act in the sentence” tax on houses,
buildings, works, tenements and hereditaments”?

[2] Whether the words “houses, buildings, works, tenements and hereditaments
encompasses within it only lands containing constructed structures?

[3] Which rule of interpretation must be followed to resolve this ambiguity and to
ascertain true legislative intent?

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REASONING/ANALYSIS: Expressio Unius Est Exclusio Alterius -Also Referred To As
Expressum Facit Cessaty Tacitum is a subsidiary rule of interpretation which means: "The
express mention of one thing implies the exclusion of others". In other words; when the words
of a Statute expressly mentions or states something; it means that whatever is NOT mentioned
or NOT stated is excluded. Eg:' X' has lands in Calicut, Kochi and Wayanad. He agrees to sell his
land in Calicut to Y " there; the express mentioning of the land in Calicut in the but sale deed
impliedly but clearly excludes the lands in Kochi and Wayanad, from sale.

Sec. 164 CPC says that confession should be recorded by Judicial Magistrates or
Metropolitan. Magistrates. Thus, Executive Magistrates are clearly excluded.

Secs. 91 to 100 of Indian Evidence Act says that wherever documentary evidence is available
to prove a fact; oral evidence should not be produced. This is known as exclusion of oral
evidence by documentary evidence;

The Indian Contract Act lays down expressly the conditions for capacity to contract... namely
the parties should be major, sound mind and not disqualified from contracting under any law.
Here, the express mention of these conditions impliedly but clearly excludes minors, lunatics
and other disqualified persons from contracting.

Facts of the problem similar to those in the case of R vs. Midland Railway Co: [1855]4 B &B
958.In this case, an Act authorised levy of tax on houses, buildings, works, tenements and
hereditaments. The word ‘land’ generally includes buildings but under the provisions of this
Act, an open and unburdened land [vacant land] cannot be included. Court clearly expressed:
"The word "land" is generally understood as including buildings, but if, after imposing a rate
on houses, buildings, works, tenements and hereditaments, an Act exempted 'land', this word
would be restricted to land unburdened with houses, buildings or works which would
otherwise have been unnecessarily enumerated."

OTHER ILLUSTRATIVE CASES ON Expressio Unius Est Exclusio Alterius:

*Bennet Coleman vs. VOI (AIR 19 73 S (106)- The Constitution of India expressly says that
fundamental rights under Arts 15,16 and 19 are available only to citizens of India. Supreme
Court held that therefore non-citizens and artificial legal persons are impliedly but clearly
excluded from claiming these rights. However, Indian citizens can claim these rights through
their artificial legal persons: because ultimately the relief goes to citizens.

179
*B. Shankara Rao vs St of Mysore (1969)3 SCRI- It was held that axpressio unius- principle
is' a principle of logic and common sense; and not merely a technical sule of interpretation.

Shree Durga distributors vs. State of Karnataka (2007)4 SC C 476-Karnataka VAT Act,
2003 exampled "animal feed and feed supplements, namely. processed commodity sold as
poultry feed, cattle feed, pig-feed, fish feed, frown-feed and shrimp-feed" from tax. Applying
the rule of Expressio unius est exclusio alterius: Court held that the Section is express and
exhaustive hence,not applicable to dog-feed and cat-feed. However; it it's to be kept in mind
that Expressio unicus. " Is not an obligatory rule of interpretation. It cannot be used to defeat
the intention of the legislature.

JUDGEMENT/DECISION: The local authority cannot impose tax on the vacant land of
‘X’.

Q 17- The National Anthem Act of a country stipulates that "all persons should stand up in
attention while the national anthem is sung". On one occasion, the national anthem was
played by the band troop. The members of the band set have been charged under the Act.
They wish to challenge the prosecution. Advise them.

FACTS: Write down from the question.

ISSUES:

[1] Whether he members of the band troop who played the national anthem without
standing can be held liable for disrespecting the national anthem?

[2] Whether mere ‘non-standing’ while the national anthem is sung would amount to an
offence under the National Anthem Act?

[3] Whether the National Anthem Act is a penal statute and whether ‘mens rea’[intention
to disrespect national anthem] is required to be proved to fix liability?

[4] Whether ‘mens rea’ relevant in case of statutory offences?

[5] Whether strict rule of interpretation needs to be followed in this case?

REASONING/ANALYSIS: Strict rule of interpretation means that while interpreting

a statute, courts should confine themselves within the limits of the provisions of that
statute itself. Courts are not permitted to travel outside the limits of the statute in order

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 to find out the true meaning of its provisions. There is no room for presumptions or
equity in this rule. Strict rule is mainly used while interpreting statutes containing
stringent provisions and heavy punishments like penal statutes and taxation statutes.

Penal statutes are laws which create offenses, set out the elements of the offense, and
lay down the conditions for imposing punishments and measurement of punishment.
Penal statutes also include laws containing provisions concerning criminal procedure
and jurisdiction of criminal courts. Penal statutes include not only purely criminal laws
but also other types of laws which contain punishment and penalty provisions. The
penalty/punishment sections of non-criminal laws should also be interpreted strictly.
According to Maxwell, the following are some of the principles underlying Strict
interpretation of penal statutes:

If the words or sentences in the statutes give rise to reasonable doubt regarding its meaning
which cannot be solved using the canons of interpretation, then the benefit of doubt should be
given to the subject and against the legislature which failed to explain itself.

To put it simply: when the words or sentences in a penal statute or section gives rise to more
than one meaning - one in Favor of the accused and the other against him, then that meaning
which is in Favor of the accused which exempts or releases the accused from punishment or
penal liability should be adopted by the court. The accused should not be made to suffer
punishment due to poor unclear and confusing drafting language of the lawmakers. But, if
there is no ambiguity and the act committed by the accused falls clearly within the offense
defined in the statute, then he can be penalized [Also see "void for vagueness rule" Page in
subsidiary rule of interpretation]

Court must make sure that the accused comes clearly and undoubtedly within the plain words
of the penal statute. MENS REA [Guilty intention] should be taken into consideration before
imposing punishment. But, Mens rea is not relevant in Statutory offenses like Environment
Pollution, Food adulteration, Traffic rules, laws relating to public health, drugs, medicines,
etc. Mens Rea is also not relevant in cases involving vicarious liability.

Necessity of proving Mens Rea may be expressly or impliedly mentioned in the statute. Can
also be inferred from the use of words like ‘intentionally’, ‘wilfully’, ‘knowingly’, ‘with
knowledge’ and similar expressions.

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From the facts of the problem, it is evident that the National Anthem Act is a special statute
with penal provisions. The following leading cases need to be analysed in order to determine
whether the band members who played the nationalanthem are guilty or not:

Bijoe Emmanuel Case v. State of Kerala (1986)-

The facts of this case relate to one school in Kerala where children who believe in Jehovah’s
religion refused to sing the national anthem as it was against their faith, however, they stood
up when it was being played during assembly. The Head Mistress of the school expelled the
students as such an act was observed to be unpatriotic and causing disrespect to the national
anthem. Main Issue was whether the act of the students who were standing but were not
singing the national anthem during the assembly amounts to disrespect towards the national
anthem?

The Supreme Court, in this case, held that this act of the children has not caused any
disrespect to the national anthem. They have the right not to sing the anthem and that would
not amount to any disrespect. The Court also observed that there is no such provision in the
law that mandates any person to sing the national anthem nor does it cause any disrespect to
the national anthem when the same is not followed. It is enough if the person is standing
respectfully when the national anthem is being played or sung and joining to sing is not
mandatory. In this case, more stress was given to respecting the national anthem whenever
sung or played.

Shyam Narayan Chouksey v. Union of India (2018)-This case originated in 2003. In this
case, the petitioner filed a petition in Madhya Pradesh High Court accusing director Karan
Johar of insulting the national anthem in one of his movies named Kabhi Khushi Kabhi
Gham. He alleged that no one except the petitioner and some other person stood when the
national anthem was played. Further, he has filed a PIL with the issue of demanding due
respect to the national anthem. Justice Dipak Mishra observed that it is impermissible to have
a corrosive attitude towards the honor of national sentiments. The dramatization of the
national anthem is against the constitutional philosophy. It was held that if any person shows
disrespect to the national anthem in any manner, he/she would be considered to be involved in
the anti-national activity. Being a citizen of the country, it is important to remember that every
word, every deed, and every thought by him or her must indicate respect for the Constitution
and the national anthem.

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The Court ordered to remove the film from the theatres unless the scenes that were depicting
the national anthem were deleted and also asked other respondents to withdraw the movie
from all other cinema halls and restrained theatre owners from showing the film. However, in
2004 the famous director Karan Johar filed an appeal in the Supreme Court against the
judgment pronounced by the MP High Court in 2003. It was held that whenever a national
anthem is played in the course of any newsreels, documentary, or a movie, the viewers or the
audience is not expected to stand as that may interrupt the exhibition of the film and might
create disorder or confusion among the people instead of dignity to the national anthem.
Hence, the order of the High Court of MP was set aside and the petition was allowed.

In 2016, the Court threw light on the legal journey of the national anthem in the present case.
The Supreme Court made it compulsory to play the national anthem in the cinema halls. It
directed all the cinema halls across the country to play the national anthem in the background
before every film with the national flag on the screen. The Court also ordered the audience to
stand with all respect when the national anthem is played because India is a country where
people should feel that they live in a nation where respect is shown to the national flag and
national anthem which are symbols of constitutional patriotism. The court also asked the
cinema halls to close all the entry and exit doors of the hall when the national anthem is being
played. It had also set some interim orders for inculcating constitutional patriotism. They are
as follows:

The national anthem should not be used for any commercial benefit or any other benefit.

There should not be a dramatization of the national anthem and neither should it be a part of
any variety show.

The national anthem should not be displayed or presented in any disgraceful manner. It is the
prime duty of every individual in the country to respect the national anthem.

It should be ensured that there is no disturbance during the exhibition of the national anthem.
There should be no display of an abridged version of the national anthem.

One should have the national anthem playing in the background and the national flag on the
screen and patriotism in the heart. It is because the singing of the national anthem and the
concept of protocol associated with it, have their inherent roots in national identity, national
integrity, and constitutional patriotism.

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The final verdict of this case was then given in the year 2018. In the judgment of this case,
there have been certain modifications related to the previous judgment of 2016. In this case,
the three bench judge has opined that it is mandatory for all the people to stand while the
national anthem is played provided that there is an exception for the person with a disability.
This includes wheelchair users, and those with autism, cerebral palsy, multiple disabilities,
Parkinson’s disease, multiple sclerosis, leprosy, muscular dystrophy, or hearing and visual
disabilities.

However, in this case, the Court has made it optional to play the national anthem in the
cinema halls and has removed the obligation. It is upon the discretion of the theatre owners
during the screening of a film. The current position of this issue in which the cinema hall
owners are given discretionary power to play or not to play the national anthem has made it
easy for the citizens to enjoy their rights as well as to practice their Constitutional duty.

Dr. Tawseef Ahmad Bhat v. State of J&K & Anr. (2021)-In this case, there was a party
arranged for the celebration of a successful surgical strike. The celebration started with the
singing of the national anthem. Few students in the party claimed that one of the lecturers had
shown disrespect towards the national anthem by not standing when the national anthem was
being played. However, the lecturer contended that he was standing along with his staff
during the same. Also, the students claimed that it is a violation of Section 3 of the Prevention
of Insults to National Honour Act, 1971. The Jammu and Kashmir High Court held that not
standing for the national anthem or singing it may amount to disrespecting the national
anthem and also is a failure to adhere to the fundamental duties provided in the Constitution.
However, such actions do not amount to the offense under Section 3 of the Prevention of
Insult to National Honour Act, 1971. The Court also observed that it is the fundamental duty
of every citizen under Article 51A of the Constitution to obey our Constitution, to show
respect to its ideals and institutions, and to hold the national flag and national anthem with
utmost high esteem. Any infringement in this regard shall be treated as a breach of
fundamental duties. But, not standing for the national anthem does not constitute an
offence under the Prevention of Insults to National Honour Act,1971. Citing Section 3 of
the Act, the judge said the law only penalises the conduct of a person who either
INTENTIONALLY prevents the singing of the national anthem or causes any disturbance
to any assembly engaged in such singing.

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“It is, thus, concluded that though certain conduct of individuals like not standing up while
the national anthem is being played or standing quiet in the assembly engaged in the singing
of national anthem may amount to showing disrespect to the national anthem but would not,
per se, constitute an offence under Section 3 of the Act,” the judge said.

In October 2023, while dismissing a complaint filed against West Bengal Chief Minister
Mamata Banerjee for alleged disrespect to the national anthem, the Metropolitan magistrate
court in Mumbai observed that the accused was reciting some words out of the national
anthem and the same is different from singing the entire anthem.

“‘Singing’ the national anthem and ‘reciting’ certain words or lines out of it are two different
things. It cannot be equated with each other. Otherwise, a person like a teacher or speaker
explaining the national anthem to his audience will be not be held responsible for
disrespecting the national anthem. It was not and will not be the intention of the legislation
to prosecute such a person,” Metropolitan Magistrate said.

According to complainant, the West Bengal chief minister did not stand when the national
anthem was played at an event she attended in the city in December 2021. He further alleged
that towards the end of the programme, she started singing the national anthem while sitting
in her chair, then stood up abruptly and sang a few lines, following which she left the
programme while the anthem was still being sung. Gupta sought a case be filed against
Banerjee, by registering a first information report (FIR) under the Prevention of Insults to the
National Honour Act. Dismissing the petition, the court said, “No offence is made out.”

According to Mamta Banerjee’s lawyers, the complainant was not present at the event and
relied merely on a truncated version (1-2 mins) of the full video broadcast in the media. The
court also noted that the clip under consideration was only 17 -19 seconds long. Her lawyers
also told the court that she had “slowly, emphatically and respectfully recited the four verses
of the National Anthem” while emphasising the words “Maratha” and “Banga”. She then
marked the end of the event by chanting “Jai Maharashtra, Jai Bengal, and Jai Bharath” as a
salutation to the motherland.

She was first served summons by the magistrate court, prompting her to challenge it in the
sessions court. Setting aside the summons, the Sessions court had directed the magistrate to
adjudicate the matter afresh. While deciding her plea, the Sessions court had observed that
not standing up for the national anthem may have been disrespectful, but not an offence.

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“Undoubtedly, the complainant was not present in the said function. He has no personal
knowledge about the event that was conducted on December 1, 2021. The only source of
information for the complainant was a news report relied upon by him. It is to be noted here
that as per averments in the complaint itself, prominent people from various backgrounds had
attended the said function.

JUDGEMENT/DECISION: The members of the band troop cannot be held liable for
disrespecting the national anthem.

Q 18: 'L' was charged for murdering his wife in 1970. During trial, he was charged for the
murder of fellow prisoner. Later, he was convicted for the murder of his wife. The
prosecution argued for convicting L under section s. 303 IPC. 'L' wishes to challenge the
same. Prepare an advice for him applying the relevant rules of interpretation.

FACTS: Write down from the question.

ISSUES:

[1] Whether an under-trial prisoner [here, a person whose trial is pending in another
murder case] be charged under Sec.303?

[2] Whether rule strict rule of interpretation of penal statutes need to be followed in this
case?

REASONING/ANALYSIS: Strict rule of interpretation means that while interpreting a

statute, courts should confine themselves within the limits of the provisions of that statute
itself. Courts are not permitted to travel outside the limits of the statute in order to find out the
true meaning of its provisions. There is no room for presumptions or equity in this rule. Strict
rule is mainly used while interpreting statutes containing stringent provisions and heavy
punishments like penal statutes and taxation statutes.

Penal statutes are laws which create offenses, set out the elements of the offense, and lay
down the conditions for imposing punishments and measurement of punishment. Penal
statutes also include laws containing provisions concerning criminal procedure and
jurisdiction of criminal courts. Penal statutes include not only purely criminal laws but also
other types of laws which contain punishment and penalty provisions. The
penalty/punishment sections of non-criminal laws should also be interpreted strictly.
According to Maxwell, the following are some of the principles underlying Strict
interpretation of penal statutes:

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If the words or sentences in the statutes give rise to reasonable doubt regarding its meaning
which cannot be solved using the canons of interpretation, then the benefit of doubt should be
given to the subject and against the legislature which failed to explain itself.

To put it simply: When the words or sentences in a penal statute or section gives rise to more
than one meaning - one in Favor of the accused and the other against him, then that meaning
which is in Favor of the accused which exempts or releases the accused from punishment or
penal liability should be adopted by the court. The accused should not be made to suffer
punishment due to poor unclear and confusing drafting language of the lawmakers. But, if
there is no ambiguity and the act committed by the accused falls clearly within the offense
defined in the statute, then he can be penalized.

Court must make sure that the accused comes clearly and undoubtedly within the plain words
of the penal statute.

Section 303 of the Indian Penal Code, 1860 says that- “Punishment for murder by life-
convict. —Whoever, being under sentence of [imprisonment for life], commits murder, shall
be punished with death.”

This provision explicitly states that if the accused is found guilty of murder while he is
convicted with life imprisonment, he will face mandatory death penalty immediately. The
basic condition here was that the person who has committed the murder has to be already
serving a life sentence. This provision was inserted in IPC considering the fact that if a term
of life imprisonment was insufficient to serve as a deterrent and the criminal became hardened
enough to commit a murder while serving that sentence, the only punishment he merited was
death.

Sec.303 can apply only to a case where a person while undergoing imprisonment for life
himself commits a murder and becomes liable to be convicted under Sec.302.

Mahabir Gope v. State of Bihar [1962] -It was observed that Section 303 would apply even
in cases where a person undergoing sentence of imprisonment for life is convicted either
under Section 302(Punishment for murder) read with S.34 (Acts done by several persons with
common intention) and also in the cases where S.302 is read with S. 149(Offence committed
by the members of unlawful assembly).

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Pratap v. State of UP [1972]-It was observed by the Supreme Court that “under Section 303
I.P.C., the person's earlier sentence must be in force if the person is to be dealt with for a
subsequent offence of murder under that section.” It was also discussed that Section 303 is
like a proviso to Section 302 and a court trying a person for murder could apply the
provisions of Sec.303 if it is brought to its notice that the person being tried is under a sentence of
life imprisonment. This case was an appeal against the judgment of the High Court of Allahabad
altering the sentence of life imprisonment inflicted on the appellant by the Sessions Judge to one of
death under Section 303 I.P.C. The main argument in this case has been about the legality of the
conviction of the appellant under Section 303 I.P.C. The accused had committed a murder in 1964.
Before the Sessions Judge, a petition was presented in 1965 drawing attention to the fact that the
accused was already under a previous sentence of imprisonment for life, on conviction under Section
302 I.P.C. and that he was released on probation in the year 1959 and that his licence period was upto
1973 and hence he should be charged under Section 303 I.P.C. It is established that the accused was
under a sentence of imprisonment for life when lie committed the present murder. His previous
conviction was made in 1953 and he was released on probation in 1959 and the period of licence was
to last till 1973. Under the provisions of Section 2 of the Uttar Pradesh Prisoners' Release on Probation
Act, 1938, the, State Government may by licence permit a person under sentence of imprisonment to
be released-on condition that he be placed under the supervision or authority of a Government Officer
or of a person or institution or society as may be, recognised by the State Government. Under Section
4 of that Act, the period during which a person is absent from prison under the provisions of that
Act on a licence which is in force shall be reckoned as part of the period of imprisonment to which
he was sentenced. It is, therefore., obvious that the appellant had committed the murder of Rati Ram
while he was under a sentence of imprisonment for life and he would therefore. be liable to be
convicted under Section 303 of the Indian Penal Code. Under Section 303 I.P.C. the person's
sentence must be in force if the person is to be dealt with for a subsequent offence of murder
under that section. If the previous sentence of life imprisonment had been remitted or had
been served out when the subsequent murder was committed, section 303 will not apply.
Section 303 of the Indian Penal Code will be applicable only in one circumstance, that is,
of the accused committing murder while he is under sentence of imprisonment and not any
other offence either.

Dilip Kumar Sharma vs State of Madhya Pradesh [1974]1SCR411- Supreme court held that
a penal provision such as Sec.303 IPC which is severe, relentless and inexorable in operation
must be strictly construed, that is to say , in the absence of clear, compelling language,
Sec.303 should not be given a wider interpretation and in no case be held to fall within it that
does not come within the reasonable interpretation of the provision. The expression “whoever

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having been convicted” under this Section means that the previous sentence must have been
in operation. In case the previous conviction has been set aside in appeal, it does not come
within the scope of Sec.303.

JUDGEMENT/DECISION: ‘L’ cannot be convicted under Sec.303 IPC , as he was only an

under-trial prisoner in an already pending murder case and he was not undergoing a sentence
of life-imprisonment at the time of committing the subsequent murder. [It is to be noted that
in Mithu v. State of Punjab [1983] -Sec.303 was declared unconstitutional by the Apex Court
in this landmark case. The petitioners contended that Section 303 is wholly unreasonable and
arbitrary and hence, violates Article 21 of the Constitution. It was argued that the procedure
by which this Section authorises the depravation of life is unfair and unjust and so it is
unconstitutional}.

Q 19- The Prison Act penalizes a person who tries to escape from the prison. When there
was a fight among the prisoners, Kumar rushed through the gate of the prison to save his
life. He was charged under the Act for trying to escape from the prison. He wishes to
challenge the same. Advice Kumar.

FACTS: Write down from the question.

ISSUES: [1] Whether Kumar is liable for the offence of trying to escape from prison
under the Prisons Act?

[2] Whether he can take the defence of necessity citing apprehension of danger to his life
due to the fight among his co-prisoners?

[3] Whether rule strict rule of interpretation of penal statutes need to be followed in this
case?

REASONING/ANALYSIS: Strict rule of interpretation means that while interpreting a

statute, courts should confine themselves within the limits of the provisions of that statute
itself. Courts are not permitted to travel outside the limits of the statute in order to find out the
true meaning of its provisions. There is no room for presumptions or equity in this rule. Strict
rule is mainly used while interpreting statutes containing stringent provisions and heavy
punishments like penal statutes and taxation statutes. Penal statutes are laws which create
offenses, set out the elements of the offense, and lay down the conditions for imposing
punishments and measurement of punishment. Penal statutes also include laws containing

189
provisions concerning criminal procedure and jurisdiction of criminal courts. Penal statutes
include not only purely criminal laws but also other types of laws which contain punishment
and penalty provisions. The penalty/punishment sections of non-criminal laws should also be
interpreted strictly. According to Maxwell, the following are some of the principles
underlying Strict interpretation of penal statutes:

If the words or sentences in the statutes give rise to reasonable doubt regarding its meaning
which cannot be solved using the canons of interpretation, then the benefit of doubt should be
given to the subject and against the legislature which failed to explain itself.

To put it simply: when the words or sentences in a penal statute or section gives rise to more
than one meaning - one in Favor of the accused and the other against him, then that meaning
which is in favor of the accused which exempts or releases the accused from punishment or
penal liability should be adopted by the court. The accused should not be made to suffer
punishment due to poor, unclear and confusing drafting language of the lawmakers. But, if
there is no ambiguity and the act committed by the accused falls clearly within the offense
defined in the statute, then he can be penalized. Court must make sure that the accused comes
clearly and undoubtedly within the plain words of the penal statute.

Court must make sure that the accused comes clearly and undoubtedly within the plain words
of the penal statute. MENS REA [Guilty intention] should be taken into consideration before
imposing punishment. But, Mens rea is not relevant in Statutory offenses like Environment
Pollution, Food adulteration, Traffic rules, laws relating to public health, drugs, medicines,
etc. Mens Rea is also not relevant in cases involving vicarious liability.

Necessity of proving Mens Rea may be expressly or impliedly mentioned in the statute. Can
also be inferred from the use of words like ‘intentionally’, ‘wilfully’, ‘knowingly’, ‘with
knowledge’ and similar expressions.

From the facts of the problem, it is evident that the Prisons Act is a special statute with penal
provisions. The Act mainly focuses on keeping the criminals in custody and enforcement of
discipline and order in prisons.

Sec.45 of Prisons Act, 1894 enumerate a long list of Prison offences. Clauses 15 and 16
mentions about prison escape:

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 (15) omitting or refusing to report, as soon as it comes to his knowledge, the occurrence
of any fire, any plot or conspiracy, any escape, attempt or preparation to escape, and
any attack or preparation for attack upon any prisoner or prison-official; and

(16) conspiring to escape, or to assist in escaping, or to commit any other of the offences
aforesaid.

State Of Andhra Pradesh vs Challa Ramkrishna Reddy & Ors [AIR 2000 SUPREME
COURT 2083]- The Supreme Court held that the right to life is one of the basic human rights
which is guaranteed to every person by Article 21. It is so fundamental that even the State has
no authority to violate it. A prisoner does not cease to be a human being even when lodged in
jail. He continues to be a human and therefore is entitled to enjoy all the fundamental rights
including the right to life. In this case, Challa Chinnappa Reddy and his son Challa
Ramkrishna Reddy were lodged in Cell No.7 of Sub-jail, Koilkuntla. In the night between 5th
and 6th of May, 1977, at about 3.30 A.M., some persons entered the premises of Sub-jail and
hurled bombs into Cell No.7 as a result of which Challa Chinnappa Reddy sustained grievous
injuries and died subsequently in Government hospital, Kurnool. His son Challa Ramakrishna
Reddy who was also lodged in Cell No.7, however, escaped with some injuries.

Challa Ramakrishna Reddy and his four other brothers as also his mother filed a suit against
the State of Andhra Pradesh claiming a sum of Rs.10 lacs as damages on account of the
negligence of the defendant which had resulted in the death of his father, Challa Chinnappa
Reddy. The suit was decreed against the State for a sum of Rs.1,44,000/- with interest. It was
also pointed out that Rule 48 of the Madras Rules framed under the Prisons Act makes the
police statutorily responsible for the safe custody of the prisoners while in jail.

People v. Lovercamp (118 Cal. Rptr. 110 (1974)- the California Court of Appeal for the
Fourth District became the first court to allow the application of necessity to prison escape
from homosexual molestation. The defendants complained to the authorities several times,
with no results. On the day of the escape, the defendants were approached and attacked by ten
or fifteen assailants who warned they would soon return. The defendants, in fear for their
lives, escaped, and were promptly captured. Court laid down the following conditions to be
satisfied in order to justify prison escape:

Prisoner must be faced with an immediate threat of serious harm. Court specifically added
forcible sexual attack to the traditional requirement of a threat of death or substantial bodily
injury. Court observed that the requirement of immediacy, which preserves the common law

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notion of "present and impending," is unrealistic within the context of prison institutions. The
escapee rarely is chased from the confines of the prison; nonetheless, the threatened harm in
the near future is real and inevitable. Instead of immediacy, a reasonable temporal
relationship between the threatened injury and the escape should be required.

[1] No time to resort to administrative or judicial authorities for assistance. If there was
substantial time between the threat and the escape, then the court must consider
whether there was sufficient opportunity to resort to the authorities or the courts. If
so, the escape was unnecessary and the defense should be prohibited.

[2] If there was sufficient opportunity to obtain help from the authorities but such an
effort would have been futile, then the court should allow the defense.

[3] Prisoner did not implement his escape with unreasonable force. If the defendant
were to exert greater force he no longer would be entitled to legal protection.

[4] Prisoner surrender to the authorities following his escape, is extremely important, but
the court's insistence upon an immediate surrender is unreasonable. A prisoner who
escapes, then turns around and surrenders himself, undoubtedly would be thrust back
into the same environment from which he had escaped. The escape would be more
likely to aggravate than resolve the inmate's predicament. The defendant should be
allowed a reasonable time to reach a point of safety and secure judicial protection
before committing himself into custody.

[5] He is under a duty to report to the proper authorities as soon as is reasonably

possible.

People v. Hocquard,' 121. 64 Mich. App. 331, 236 N.W.2d 72 (1975)- Michigan appellate
court scrutinized an inmate's escape following the prison authorities' failure to deliver medical
attention to the defendant for a painful back injury. The court concluded that a "very limited"‘
defense of necessity was applicable to situations where a prisoner had been denied medical
care. The court recited the Lovercamp case standards, applied them to the facts, and
concluded that the defendant was not entitled to submit the necessity because the record did
not satisfy the third condition: that the defendant must have had no time to resort to the courts,

State v. Boleyn 328 So. 2d 95 (La. 1976)- the Supreme Court of Louisiana announced the
availability of the necessity defense, but did not allow its submission to the jury. In that case

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the defendant's evidence that he had been raped the night before the escape was considered an
insufficient foundation for the defense because it merely satisfied the first condition laid down in the
Lovercamp case. The court held that all the criteria laid down in Lovercamp case must be satisfied in
order to take the defence of necessity for prison escape.

W. LAFAVE & A. SCOTT, HANDBOOK ON CRIMINAL LAW 382 (1972)- “Necessity,

however, involves no actual coercion; there is merely a choice between two evils, one of
which is the commission of the unlawful act. Because society prefers to avoid the greater evil,
public policy sanctions the choice of the lesser of the two evils.' In such a case, the actor is
still responsible for the deed, but because of special circumstances society holds that the act is
not wrongful, morally or legally. The act is not merely excused, it is justified.”

Thus, Necessity, in contrast to duress, acknowledges a right to escape.

Section 81 of the IPC talks about such acts which are likely to cause harm but where such
acts are done without any criminal intent to cause harm. Such an act must also be done in
good faith in order to avoid or prevent any kind of further harm to an individual or any
property. However, the risk of doing such an act will be weighed against the nature and need
of each situation. The doctrine of necessity is a legal defense that can be used in the Indian
Penal Code to justify an act that would otherwise be considered a crime. The defense is based
on the principle that an individual was forced to act in order to avoid a greater harm, and it
can be a powerful tool in certain circumstances. The applicability of the defense of necessity,
however, is not absolute, and depends on the specific circumstances of each case. The court
will consider various factors such as the imminence and severity of the harm, the availability
of alternatives, and the proportionality of the action taken. However, the burden of proof is
on the individual claiming the defense to prove that their actions were necessary to prevent
harm and that there were no reasonable alternatives available. Ultimately, the court will
consider all the facts and circumstances of the case to determine whether the defense of
necessity applies.

JUDGEMENT/DECISION: Kumar cannot be held liable for the offence of trying to escape
from jail under the Prisons Act. He can take the defence of Necessity . However, the actual
factual context of the case ,ie; whether a fight between his co-prisoners was grave enough to
create a situation of imminent danger to Kumar’s life and body and whether Kumar had
sufficient time to seek help of jail authorities- all such factors must be taken into consideration
while deciding whether Kumar’s attempt to escape was genuinely for the sake of saving his

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own life or whether he had seized the opportunity of the fight between his co-prisoners as a
way to escape.

Q 20: A provision in an Act allowed a landlord to apply for eviction of a tenant on the
ground of arrears of rent. The proviso to that section enabled the tenant to avoid eviction by
paying the arrears on the date of hearing. A stranger made the payment and seeks eviction.
Decide.

FACTS: Write down from the question.

ISSUES: [1] Whether a stranger who made payment of rent arrears on the date of hearing
could stay eviction of the tenant under the Act?

[2] How should the word ‘tenant be interpreted in this context?

[3] Whether the proviso to the Section should be construed strictly or liberally to
ascertain the true intention of the Legislature?

REASONING/ANALYSIS: Facts of the problem similar to those in the case of Pushpa Devi
v. Milkhi Ram (1990) 2 SCC 13. In this case,the Court accepted the Appellants -tenants plea
for s liberal construction of the word so as to include a person claiming to be a tenant.
Reference was made to the observation of this Court in Mangat Rai v. Kidarnath, [1981] 1
SCR 4-76 wherein it was held that that the proviso in question affords a real and sanctified
protection to tenant against eviction on the ground of default. It should not be given a
hypothetical or literal construction, but should be meaningfully construed. Court held that the
legislative protection concerning the tenants should not be narrowly tailored. Indeed, it should
be given wider meaning and broader concept. We should try to understand the spirit of the
text and not be bound by letter.

Court rejected the argument of the Respondent- landlord that the proviso was intended to
protect the tenant as defined under the statute and not a person claiming to be a tenant. The
persons who are not tenants could not, therefore, be given the benefit of the proviso.

Court gave two hypothetical examples to show that the submission or the interpretation
suggested by landlord is wrong and does not provide a square answer for all problems
coming before the court:

“If there are proceedings for eviction with persons claiming tenancy along with the
undisputed tenant or to his exclusion, the acceptance of that submission may lead to arbitrary

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and unjust result. Take for instance, the landlord brings an action for eviction on default
against A and B where A is recognised as the tenant, but not B. B however claims that he
shares the tenancy with A and joins A in tendering the arrears on the first date of hearing of
the case. An also does not dispute that claim. But if the contention of the landlord that the
tenant as defined under the Act is alone entitled to tender the amount is accepted, the court
could make an order of eviction by discarding the deposit. That would be repugnant to our
notions of justice. Take another hypothetical case whose occurrence is more probable and
which often arises for decision. The landlord brings an action for eviction against A on the
ground of default and also on sub-letting to B. But B denies sub- letting and contends that
inducted into the premises with the consent of the landlord. A remains absent, perhaps he is
not interested in the premises. B however, tenders the rent on his own account, but the
landlord refuses to accept it on the plea that B has no right to tender the rent since he is not a
recognised tenant. The acceptance of that view may result in ejectment of A and B before
determining the controversy between the parties. Both of them may have to be thrown out
without deciding the issue raised in the pleadings. “

Court said that the proviso must be construed so as to effectuate the twin considerations
discussed above. Observed that we must eliminate the construction which is productive of
injustice. arbitrary result and undesirable consequence.

Court also referred to the observation of Lord Denning in Seaford Estate Ltd. v. Asher,
[1949] 2 KB 481 at 498- The apparent purpose of the proviso was to relieve the defaulting
tenant from extreme penalty of eviction. There cannot be any doubt on this purpose. The provision
seems to be analogous to Section 114 of the Transfer of Property Act, 1892 which confers discretion
to the Court to grant relief against forfeiture for non-payment of rent. But the proviso goes a step
further and leaves no such discretion to the controller or court even if the tenant is a constant de-
faulter. If the arrears and other amounts specified are paid or tendered on the first date of hearing, the
default as a ground for eviction disappears and the Controller is pre- cluded from passing a decree for
eviction.

The governing principle of the proviso is that the tenant could pay and stay in an action for
eviction on default. At the same time, the landlord is ensured payment of arrears, interest and
the costs that he has incurred without the necessity of going to civil court to recover it. This
seems to be the will and intention of the legislature in the shape and scope or’ the proviso.

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Taking into account, the intention of the legislature and the purposes for which the proviso
was enacted, Court held that the obligation to tender the rent under the proviso on the first
hearing date does not depend upon the existence of admitted jural relationship of landlord and
tenant. When an action for eviction is brought by the landlord on the ground of default, the
proviso stands attracted. The benefit of the proviso could be availed of by the tenant and also
by those who claim to be the tenant.

JUDGEMENT/DECISION: A stranger who made payment of rent arrears on the date of

hearing could stay eviction of the tenant under the Act if he is claiming under the tenant in
respect of the rented premises[ for example, a sub-tenant]. It is not necessary that there should
be an official relationship of tenancy between him and the landlord.

Q 21- Raju issued a cheque in favour Paul when he borrowed money from the latter. It was
dishonoured for want of funds. Paul filed complaint in accordance with the Negotiable
Instruments Act, 1882. He was punished under the Act. Paul filed a private complaint
against Raju for cheating also. Raju challenged the same on the ground of double
jeopardy. Decide.

FACTS: Write down from the question.

ISSUES: [ 1] Whether a person can be tried simultaneously for both the offences under
Section 420 of IPC and under section 138 of the Negotiable Instruments Act based on the
same facts?

[2] Whether it amount to double jeopardy under Article 20 of the Constitution?

[3] Standard of Mens Rea to be proved under Section 420 of IPC and under section 138 of
the Negotiable Instruments Act?

[4] Whether there is clash between Section 420 of IPC and under section 138 of the
Negotiable Instruments Act and how to resolve it using tools of interpretation ?

REASONING/ANALYSIS: One of the many conditions contained in the rule of Strict

interpretation of penal statutes are:

Autrefois acquit and Autrefois convict or the Rule against Double jeopardy. - That is a person
who has been acquitted or convicted by a competent court for an offense cannot be prosecuted
or punished again for that same offence again.

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Mens rea [Guilty intention] should be taken into consideration before imposing punishment.
But, Mens rea is not relevant in statutory offenses like Environment Pollution, Food
adulteration, Traffic rules, laws relating to public health, drugs, medicines, etc. Mens Rea is
also not relevant in cases involving vicarious liability.

Article 20(2) of the Constitution provides that no person shall be prosecuted and punished for the same
offence more than once. Section 300 of the Code of Criminal Procedure, 1973 provides that a person
once acquitted or convicted not to be tried for the same offence. Both the provisions are essentially
addressing the same principle but there is a slight difference. Article 20(2) provides protection from
retrial only in case of conviction whereas Section 300 of CrPC is available in case of conviction as
well as acquittal. This principle has also been incorporated in Section 26 of General Clauses Act. The
maxim nemo debet bis puniri pro uno delicto incorporates the essence of double jeopardy and means
that no one ought to be punished twice for the same offence. The common-law rule ‘Nemo debet
bis vexari,’ which means “a man must not be put in peril twice for the same offence.”

Exceptions to the ‘Rule of Double Jeopardy’ under Sec.300 of CrPc:

 A person acquitted or convicted of any offence may be afterwards tried, with the
consent of the State Government for any distinct offence for which a separate charge
might have been made against him at the former trial .

 A person convicted of any offence constituted by any act causing consequences which,
together with such act, constituted a different offence from that of which he was
convicted, may be afterwards tried for such last-mentioned offence, if the
consequences had not happened or were not known to the Court to have happened, at
the time when he was convicted.

 A person acquitted or convicted of any offence constituted by any acts may,

notwithstanding such acquittal or conviction be subsequently charged with, and tried
for, any other offence constituted by the same acts which he may have committed if
the Court by which he was first tried was not competent to try the offence with which
he is subsequently charged.

 A person discharged shall not be tried again for the same offence except with the
consent of the Court by which he was discharged or of any other Court to which the
first-mentioned Court is subordinate.

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Leo Roy v. Superintendent District Jail (1957)-where the Supreme Court stated that even
though the person had been tried and convicted under the Sea Customs Act, 1878 they could
be put on trial again under the Indian Penal Code, 1860 because there were two distinct
charges and offences.

Maqbool Hussain v. State of Bombay,-In this case, the appellant, a citizen of India after
arriving at the airport did not declare that he was carrying gold with him. During his search
was carried on, gold was found in his possession as it was against the notification of the
government and was confiscated under section 167(8) of Sea Customs Act. Later on, he was
also charged under section 8 of the Foreign Exchange Regulations Act, 1947. The appellant
challenged this trial to be violative under Article 20(2) of the Indian Constitution. According
to this article, no person shall be punished or prosecuted more than once for the same offence.
This is considered as double jeopardy. It was held by the court that the authority under Sea
Customs Act neither a court nor any judicial tribunal. Thus, his trial was held to be valid.

Venkataraman v. Union of India (1954)- where the accused was subjected to an

investigation by the inquiry commissioner after being fired from his job. Following his
discharge, he was accused of violating the Indian Penal Code, 1860 and the Prevention of
Corruption Act, 1988. He argued double jeopardy, but the Supreme Court decided that the
investigation conducted by the inquiry commissioner to end his employment was not
prosecution and therefore the charges may be brought, and the defence of double jeopardy
was dismissed.

Difference Between Section 420 Of IPC And Under Section 138 Of The Negotiable
Instruments Act-

Sec.420 of the Indian Penal Code, 1860 deals with punishments in the cases of cheating and
dishonestly inducing delivery of property. Section 138 of The Negotiable Instruments Act,
1881 (hereinafter referred to as NI Act) considers punishments in the cases of check bounce
or check dishonoured, and for the crimes of drawing checks on the accounts with insufficient
funds. The major distinction between section 138 of NI Act and 420 of IPC includes the
element of criminal or dishonest intention also referred to as mens rea in criminal law. When
prosecuted under Section 420 of IPC, in a case of a cheque bounce, there must be the factor
of criminal or dishonest intention or Mens rea at the time of issuing the cheque. However, the
same thing is not a prerequisite for a case of 138 NI Act to be maintainable. A person can be

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tried under section 138 NI Act only when there is non-payment, or when a reply is not given
to the demand notice under clause (c) of the aforesaid section.

The law, with respect to simultaneous prosecution under Section 420 of IPC and Sec.138 of
NI Act, has been discussed in various judgments dating from the early 2000s . One of the
important judgments is J. Vedhasingh vs R.M. Govindan 2022 SCC OnLine SC 1010.
However, no deciding legal principle has been laid down yet on this topic as there are
conflicting views and currently is yet to be decided by a larger bench of the Supreme court.

In J. Vedhasingh vs R.M. Govindan 2022 SCC OnLine SC 1010- Accused contending that
the offences are different but their facts out of which they are arising are the same and hence
the case should be barred by virtue of Section 300(1) of the CrPC. Relied on Kolla Veera
Raghav Rao v. Gorantla Venkateswara Rao and Anr, (2011) 2 SCC 703. Furthermore, the
respondent stating the case Sagar Suri and Anr. v. State of UP and Others, (2000) 2 SCC
636 pleaded for quashing of the petition. On the other hand, the Appellant argued that the bar
of section 300(1) of CrPC would only apply to cases with the same offence or offences having
similar ingredients supported by the case Sangeetaben Mahendrabhai Patel v. State of
Gujarat and Anr, (2012) 7 SCC 621. Further relied upon in the case of M/s V.S. Reddy and
Sons v. Muthyala Ramalinga Reddy and Anr.

Supreme court, analyzing all the judgments cited by both parties concluded that the
requirement to prove an offence under the NI Act and an offence under the IPC is
different, and it was observed that there may be some overlapping of facts but the
ingredients of the offences are entirely different, therefore, the subsequent cases are not
barred by any statutory provisions.

S.C. explained that there are different ingredients constituting an offence under Section 138 of
the NI Act and under Section 420 of IPC on the grounds that the mens rea i.e., fraudulent, or
dishonest intention at the time of issuance of the cheque is required to be proved in a case
under the Section 420 of IPC as it entails a serious sentence of 7 years on conviction. And,
according to the NI Act, there is a presumption that the cheque was issued to pay off the
previous debt, and only the person who draws the cheque can refute this assumption.

Supreme Court decided that the cases relied on by both sides for supporting their stands have
contrasting views. Since, all these judgements are rendered by the bench of the same
strength, it was only relevant, in accordance with the trite of law, that the issue of law
involved must be referred to a larger bench.

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Jitendra Singh and another v. State of Punjab and others [2023]-

The Punjab and Haryana High Court observed the application of ‘Double Jeopardy’ due to the
clash between Section 138 of the Negotiable Instruments Act, 1881(NI Act) and Section 420
and 406 Indian Penal Code,1860 (IPC).Two complaints under Section 138 of NI Act and an
FIR under Section 406/420 IPC were filed against the petitioners seeking criminal
prosecution. The complainant contended that the case was not only of cheque dishonor, but
also breach of trust accompanied by mens rea and that FIR under Section 406 and 420 IPC
was not barred. Accused contended that dishonor of cheque could not be construed as
intention to cheat or malicious act on part of the issue and that the FIR was liable to be
quashed.

Court observed that the judgments relied by learned counsel for both the parties are in
conflict with each other on this legal issue. Directed the above questions of law to be
formulated for answer by a larger bench for decision and requested the Registry to place the
file before Hon'ble the Chief Justice of India for orders.

Court held that mere dishonour of the cheque cannot be construed as an act on the part of
the accused with a deliberate intention to cheat and the mens rea in that regard cannot be
gathered from the point the amount had been received. In the present facts and
circumstances, there is no sufficient evidence to indicate the offence under Section 420 IPC is
made out. “It would be a violation of Article 20(2) of Constitution of India to file an FIR
under the IPC by levelling allegations that the goods were received with malicious intent and
cheques were also issued with such an intent, and to simultaneously seek prosecution under
Section 138 of NI Act or the same set of allegations and a similar transaction for the same
amount would violate Article 20(2) of the Constitution of India.”

JUDGEMENT/DECISION: Based on the above High court decisions on this issue and
indecisive stand taken by the Hon’ble Supreme court pending reference of the matter to a
larger bench, it can be held that Raju cannot be simultaneously prosecuted under Section 420
of IPC and under section 138 of the Negotiable Instruments Act on the same facts.

Q 22- The Municipal Corporation amended the Building Rules in 2016. It says that "no
building with 4 floors could be constructed without elevator facility". Ram, constructed a
residential-cum-commercial complex in three floors and underground space for parking of
vehicles and rest rooms for watchmen. He submitted the plan for approval without

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elevator/lift facility. The Corporation rejected the application on the ground that the
building shall have elevator Ram challenged the decision of the Municipal authorities
before the High Court. Decide.

FACTS: Write down from the question.

ISSUES: [1] Whether a residential-cum-commercial complex in three floors and

underground space could be considered as a four-storied building under the Building
Rules, 2016 ?

[2] Whether a basement/cellar could be treated as a floor for the purpose of determining
the height of a building under the Building Rules, 2016?

[3] Whether the definitions of the words like ‘Floor’, ‘Ground-floor’, ‘Basement’ can be
used as a internal aids of interpretation for ascertaining the true legislative intent
behind the Building Rules, 2016?

[4] Whether the rule of Harmonious construction is applicable in this case?

REASONING/ ANALYSIS: Definition or interpretation clauses are important internal aids

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

The only exception to this rule is that if the court feels that in the context of a particular
provision the definition clause, if applied will result in an absurdity, the court will not apply the
definition clause while interpreting that provision.

As per the rule of Harmonious construction, when there is a conflict between two or more
provisions (of the same statute or different statutes) it is the duty of the court to resolve such
conflicts and bring harmony between the conflicting provisions. Court should interpret in
such a way that the conflicting provisions can be both given effect to and without making any
of them otiose (useless, surplus, unnecessary]. Court should try to reconcile conflicting
sections as far as possible. The provisions of one section of a Statute cannot be used to defeat
the other provisions unless the court, in spite of its efforts, finds it impossible to effect
reconciliation between them.

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In the present problem, it is necessary to analyze the definitions of ‘floor’ and ‘basement’
under the relevant Building rules in order to ascertain the true intention of the Legislature.

Definitions of Floor and Basement under the Model Building bye-laws ,2016 released by the
Union Ministry of Housing and Urban Affairs :

Sec 44. “Floor”- The lower surface in a storey on which one normally walks in a building,
and does not include a mezzanine floor. The floor at ground level with direct access to a street
or open space shall be called the ground floor; the floor above it shall be termed as floor- 1,
with the next higher floor being termed as floor- 2, and so on upwards.

[A mezzanine floor is an intermediate floor between main floors of a building, and therefore
typically not counted among the overall floors of a building. Often, a mezzanine is low-
ceilinged and projects in the form of a balcony].

Sec.15. “Basement or Cellar”- The lower storey of a building, below or partly below the
ground level, with one or more than one levels.

Definitions of Floor and Basement under the Kerala Municipality Building Rules,2016:

(aq) ‘floor’ means the lower surface in a storey on which one normally walks in a building.
The general term 'floor' unless otherwise specifically mentioned, shall not refer to a
mezzanine floor;

(l) ‘Basement floor’ means any lower storey of a building partially or fully below the lowest
contiguous proposed ground level provided that, the part of such storey above ground level
shall not exceed 75 centimeters. This word is synonymous with ‘cellar’.

Facts of the problem similar to those in the leading case of Dr.Dorphy.P.D vs State Of Kerala
[2010]- Kerala High Court has held that a Highrise ‘basement’ cannot be counted as floor.
While categorizing the ‘high-rise building’, the basement floor of any building lying below
the average ground level need not be reckoned while calculating the height of such buildings,
the height of the basement floor need not be considered, the court said.

Court issued the order against the Municipality on a petition filed by P D Dorphy challenging
the decision of municipal authorities which rejected building permit for constructing a
building at their property. The proposed building had four floors plus a basement floor. The
permit was denied by the Municipality on the grounds that the building is a high-rise one.

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The municipality had directed to comply with various conditions and specifications in
building rules and rejected the application for building permit. Municipality contended that
the building falls within the definition of high-rise building, even if the height is below 15
metres. But the court refused to accept it and directed the State to consider the application for
building permit submitted by the petitioners.

Court observed that -“Definitions of the terms ‘floor, ‘ground floor’ and ‘basement floor’
when harmoniously construed will indicate that the basement floor cannot be considered as a
floor of the building. The term high-rise building connotes the idea of a building raised from
the ground level,” the court pointed out.

As per Rule 110 (as amended) 'High Rise Building' means a building having more than
four floors and/or 15 Metres of height. The meaning of 'basement floor' under Rule 2(1)(j) is
mentioned as the lower storey of a building below or partly below the ground floor, and it is
synonymous with 'Cellar'. The meaning of 'ground floor' mentioned in Rule 2(1) (an) is, as the
lowest storey of a building to which there is an entrance from the adjacent ground or street.

Respondent Municipality contended that the omission of the words 'from ground level'
brought in through the amendment to Rule 110 will indicate that the building will come
within the definition of 'High Rise Building'. But the petitioner contended that for measuring
the vertical distance from the average level of the ground contiguous to the building, the
basement floor needs to be excluded. This is especially because the definition of 'basement
floor' will clearly indicate that it is a storey of the building below the ground floor and the
definition of 'ground floor' will indicate that it is a storey to which there is an entrance from
the adjacent ground or street. Hence it is clearly evident that even after omission of the words
'from ground level' in Rule 110, height of the building need be computed only from the
average level of the ground contiguous to the building. Therefore, it is evident that for the
purpose of deciding the 'height of building' basement floor (cellar) has to be excluded.

It was admitted by the Respondent Municipality in their counter affidavit that total height of
the building is only 14.2 Metres. Therefore, question arises with respect to the number of
floors and as to whether the building in question is having more than four floors. The wording
in Rule 110 "and/or " will indicate that building having more than four floors also will come
within the definition of 'High Rise Building', even if the height is below 15 Metres. In the case
at hand the building is having four floors plus 'basement floor'.

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Petitioner relied on the earlier decision of the Court in Thripoonithura Municipality v. Ansal
Buildwell Ltd reported in 2008(3) KLT 993. Referring to the amendment brought into Rule
110, the Court had considered meaning of the term 'High Rise Building' and the question as to
how height of the building is to be computed. In that case the Court had observed:

"It does not stand to reason to accept an argument that basement floor also should be taken
into account for deciding whether the building has more than four floors and for deciding the
question as to whether it is a high-rise building……the very expression "high rise building"
connotes the idea of a building rising from the level of the ground or the street upon which the
building abuts.

Petitioner argued that based on the above said observation there is a clear indication that while
computing the number of floors for the purpose of Rule 110, the 'basement floor' need be
excluded.

Petitioner contended that for the purpose of computing the number of floors in the Rule of
Harmonious construction of the the relevant definitions with the definition of "height of
building" need be adopted, and on that basis the number of floors shall be counted from the
ground.

Therefore definitions of the terms 'floor', 'ground floor' and 'basement floor' when
harmoniously construed will indicate that the 'basement floor' cannot normally be
considered as a floor of the building. The term 'High Rise Building' connotes the idea of a
building raised from the level of a ground or street. This concept when construed along with
the provisions in Rule 110, which permits building having height up to 15 meters from the
ground, level need not be included in the category of 'High Rise Buildings', will only indicate
that the restriction with respect to number of floors need to be confined only with respect to
ground floor and other floors above the ground floor. Therefore, it was held that while
categorising 'High Rise Building' the basement floor of any building which situate fully below
the average ground level need not be reckoned. It is declared that for the purpose of Rule 110
while reckoning the number of floors the authorities concerned should exempt 'basement
floor' if it is a floor intended at a level below the average level of the ground contiguous to the
building.

JUDGEMENT/DECISION: The under-ground space for parking vehicles cannot be treated

as a floor under the Building Rules. Therefore, Ram is not bound to install elevator facility as
his residential-cum-commercial complex has only 3 floors above ground level.

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Q 23- Union has the power to regulate 'import and export of liquor' State has the power to
regulate 'manufacture, possession, transport, sale of intoxicating liquor'. State B is the only
state which has the port through which liquor is imported to the country. Finding that there
is indiscriminate consumption and sale of liquor in the State, State B enacted a law to
regulate any transaction of liquor in the State. This affected the 'K' a manufacturer of
medicines using alcohol. He challenges the State law. Decide.

FACTS: Write down from the question.

ISSUES:

[1] Whether State B has power to enact a law to regulate 'manufacture, possession,
transport, sale of intoxicating liquor'?

[2] Whether the law enacted by State B affects the import of liquor through the State
port?

[3] Whether the law enacted by State B clashes with and encroaches upon the power of
the Union government to regulate 'import and export of liquor'?

[4] Whether K can challenge the law enacted by State B on the ground that it indirectly
affects his freedom to carry on trade in alcohol-containing medicinal preparations
under Article 19[1][g] of the Constitution?

[5] Whether the Doctrine of Pith and Substance applicable to this case in order to resolve
the clash of entries between the entries mentioned in the Union list and State list?

[6] Whether the Court should adopt a Presumption of Constitutionality of the law enacted
by State B?

REASONING/ANALYSIS: State of Bombay and another v. F.N Balsara (1951) and

Synthetics and Chemicals Ltd. and Others v. State of Uttar Pradesh and Others
(1989).Court applied the Doctrine of Pith and Substance in these cases in order to resolve the
clash between the subject-matters in the Union list and State list of the Constitution of India.

Doctrine of Pith and Substance-The Constitution of India has divided the extent of legislative
powers between the Centre and states by way of the Seventh Schedule. The Seventh Schedule
specifies the subject matters and divides the power to make laws between the Centre and the State.

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List I or the Union List contains matters where the Centre has the power to make laws List II
or the State list contains the subjects where the State has the power to make laws

List III or the Concurrent List contains subjects where both the Centre and the State have
powers to legislate.

Although their spheres of influence are well established in the Seventh Schedule, there often
arise conflicts as to whether the Centre or the State, as the case may be, is encroaching upon
the sphere of the other. To deal with this conflict, the courts in India have evolved a few
doctrines and the age-old doctrine of pith (essence of something) and substance (essential part
of something) is one among them. It is widely believed that the origin of the doctrine of pith
and substance lies in Canada and it was introduced in a case named Cushing v. Dupuy [
1880]. The doctrine later made its way to India and is firmly supported by Article 246 of the
Constitution and the Seventh Schedule.

The doctrine states that within their respective spheres the state and the union legislatures are
made supreme, they should not encroach upon the sphere demarcated for the other.

However, if one among the state and the Centre does encroach upon the sphere of the other,
the courts will apply the Doctrine of Pith and Substance.

If the pith and substance i.e., the true object of the legislation pertains to a subject within the
competence of the legislature that enacted it, it should be held to be intra vires although it may
incidentally encroach on the matters not within the competence of the legislature.

Important ingredients that constitute the Doctrine of Pith and Substance

The Doctrine is applied when the subject matter of List I of the Seventh Schedule is in
conflict with the subject matter of List II.

The reason behind adopting this doctrine is that otherwise every law will be declared invalid
on the ground that it encroaches upon the subject matter of another sphere.

The doctrine examines the true nature and substance of the legislation in order to determine
which List it belongs to.

It takes into consideration whether the State has the power to make a law that encroaches on a
subject matter from another list.

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The doctrine of pith and substance has provided the Indian constitutional scheme with much-
needed flexibility because in the absence of this doctrine every other law would have been
declared invalid because it incidentally encroaches upon the sphere of another legislature.
Apart from its applicability in cases related to the competency of the legislature as mentioned
in Article 246, the Doctrine of Pith and Substance is also applied in cases related to Article
254, which deals with the repugnancy in laws made by Parliament and laws made by the State
Legislatures. The doctrine is employed in such cases to resolve the inconsistency between
laws made by the Centre and the State Legislature.

The doctrine places emphasis on the fact that it is the real subject matter which is to be
challenged and not its incidental effects on another field. Pith denotes the ‘essence of
something’ or the ‘true nature’, while substance states ‘the most significant or essential part of
something’.

Pith and Substance means the true nature of law. The real subject matter is challenged and not
its incidental effect on another field. The doctrine has been applied in India also to provide a
degree of flexibility in the otherwise rigid scheme of distribution of powers.

State of Bombay and Ors. v. F.N. Balsara AIR1951 SC318 - The case applied the doctrine of
pith and substance which helps to concern the true character and nature of legislation.
Bombay Prohibition Act was challenged on the ground that it incidentally encroaches upon
import and export of liquor across custom frontier – a Central subject. The court while
upholding the impugned legislation declared that the Act was in pith and substance a State
subject even though it incidentally encroached upon a Central subject.

In this case it has been considered as to whether under the Prohibition Act, the keeping of
alcohol mixed medicine and toilet goods, their selling, buying and using can be prohibited by
the State government or not .F.N. Balsara, stated that he should be given assent to use his
right to keep Whisky, Brandy, Wine, Beer with medicine Eau de cologne, lavender water etc.
He further stated his right to use them and import-export them within the Custom Limits.
Also, that government must not obstruct him from such usage under Prohibition Act as it was
his personal right and to pass the similar orders under the Specific Relief Act. Also pleaded
that the Bombay Prohibition Act was violative of Article 19(1)(g) of the Indian Constitution.
Thus, it must be declared void.

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Balsara, showed himself the citizen of India and presented a petition in the Bombay High
Court. He requested for passing an order to forbid the State and Prohibition Commissioner
from enforcing the provision of Bombay Prohibition Act, 1949 against him. He also requested
to pass an order to that effect.

The Hon’ble Supreme Court observed that the State Legislature has power to completely
prohibit the keeping, selling and using intoxication wine under the Entry 31 in the List (II).
Therefore, there is no dispute between the Union and State. Court referred to the following
important provisions of the Constitution:

Entry 31, List II

Intoxicating liquors and narcotic drugs, that is to say, the production, manufacture possession,
transport, purchase and sale of intoxicating liquors, opium and other narcotic drugs, but
subject, as respects opium, to the provisions of List I and, as respects poisons and dangerous
drugs, to the provisions of List III.

Entry 19, List I

Import and export across customs frontiers as defined by the Dominion Government.

Article 19(1)(g)

To practice any profession, or to carry on any occupation, trade or business.

It held that if any Act passed by the State Legislature, prohibits or controls the export of the
things mentioned in Entry 27 or 29 of the List (II) outside the boundaries of the State, then it
would be illegal but this Act has been passed on the basis of the Entry 31 of the List II.

Observations of the Supreme Court of India:

Under List II, Entry 31 of the Indian Constitution, the State legislature has the authority to
entirely outlaw the keeping, marketing, and use of intoxicating wine. As a result, there is no
issue about the State’s and the Centre’s jurisdictions clashing with each other in this regard.

The Apex Court viewed that any Act passed by the State legislature that prohibits or restricts
the export of the items listed in Entries 27 and 29 of List II outside the State’s borders is
illegal. However, the Bombay Prohibition Act, 1949 was approved under List II Entry 31.

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Exemption allowed the soldiers of the Army, the messes of the Land Forces and Water ships
and foreign tourists under the Bombay Prohibition Act is a reasonable classification under
Article 14 of the Constitution.

The Supreme Court ruled that the portions of the Bombay Prohibition Act that dealt with
maintaining alcohol-mixed medications and toilet products, selling and buying them, as well
as using them, were unconstitutional under Article 19(1)(g) of the Constitution, but the
remainder of the provisions were upheld to be valid. It was also established that an Act cannot
be deemed entirely invalid simply by declaring any of its sections to be illegal [Doctrine of
severability].

The Apex Court had also stated that under Article 277 of the Constitution, any taxes, duties,
cesses, or fees that were lawfully levied by the government of any State or municipality or
other local authority or body for the purpose of the state, municipality, district, or another
local area immediately before the commencement of the Constitution may continue to be
levied and applied for the same purpose until provisions to the contrary are made by
Parliament by law. Thus, the legal principle that has been established provides that if the state
government has adopted an Act on a topic over which it has constitutional authority, the Act
is valid.

The Supreme Court therefore, declared some provisions of Bombay Prohibition Act as illegal.
These provisions were with regard to keeping alcohol-mixed medicines, and toilet goods, and
also selling them. The other provisions were declared legal and valid. Thus, due to some
provisions being illegal, the whole of the Act cannot be declared illegal.

The Court held that the Presumption always stays in the favor of constitutionality of the
Statute.

It is because it is assumed that the legislature understands the needs of its people.

Balsara, was a case in which Bombay Prohibition Act was challenged on the grounds that the
prohibition of liquor on the borders was a matter of Central Government. The act was held
valid by the court because it was in its pith and substance and fell under the State List though
it was indirectly impacting the import of liquor.

This case was overruled in Synthetics and Chemicals Ltd. and Others v. State of U.P. and
Others[1989].-This decision was made on the grounds that there could not be a full restriction

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of therapeutic remedies containing alcohol. As a result, it was argued that in the case of
alcohol that is unfit for human consumption, commerce in such an object cannot be regarded
as a noxious trade. Only when it is produced or processed for human use will it be a toxic
trade.

As alcohol is counted under luxurious goods, the State legislature will have to collect taxes on
the ownership of alcoholic liquors suited for human consumption. However, because alcohol
that is unfit for human consumption is not a luxury, State legislatures will not be able to
charge taxes on it, It was held that all alcohol taxes not covered by any other entries in Lists I
and II will be levied by Parliament.

JUDGEMENT/DECISION: Law enacted by State B to regulate any transaction of liquor in

the State can be made applicable only to alcoholic liquors suited for human consumption
including those used in medicinal preparations even if it incidentally affects the import of
such alcohol through the State port. But, State B has no power to regulate transaction of liquor
that is unfit for human consumption [industrial alcohol].

Q 24- A place of worship belonging to religious group happened to be a spot of disputes

between two religious dominations leading to instances of group conflicts. There were
allegations of the mismanagement of the institution also. Accordingly, the Union
Government acquired the institution and vested the management in the government
officials. The members belonging to the religious denominations challenged the same on
the ground that the acquisition was for violation of public order which falls in the State
List. Decide.

FACTS: Write down from the question.

ISSUES: [1] Whether the Union Government has legislative competence to make law on
a matter enumerated in the State list?

[2] Whether ‘public order’ is a matter exclusively reserved in the State list?

[3] Whether the acquisition of place of worship by the Union Government for
maintenance of public order and communal harmony can be justified by applying the
doctrine of Pith and substance?

[4] Whether the Union government can justify its actions by invoking the doctrine of
Eminent Domain?

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 [5] ‘Acquisition of property’, being a subject in the Concurrent list and’ Public order
‘being a subject in the State list, which rules of interpretation to be followed to
resolve the clash between the entries in both lists?

[6] Whether the court can resort to the Long title and Statement of Objects and Reasons
of the Acquisition laws as internal and external aids of interpretation?

[7] Whether the Court should follow the ‘Regard to consequences’ rule and Doctrine
of severability while deciding to invalidate the whole Act or part of the Act ?

[8] Whether a strict literal construction or a purposive construction need to be followed

while deciding the constitutionality of the Acquisition law?

REASONING/ANALYSIS: Facts of the problem similar to those in the case of Dr. M.

Ismail Faruqui Etc, Mohd. Aslam, vs Union Of India And Others (1994) 6 JT 632 (SC)- Dr
Ismail Faruqui had filed a petition challenging the Constitutional validity of the Acquisition of
Certain Area at Ayodhya Act, 1993, by which the Centre acquired 67.703 acres of land in and
around the Babri Masjid.

President's rule imposed in Uttar Pradesh as a consequence of the events at Ayodhya on 6th
December, 1992 and led to spread of communal violence inside the State and several other
States. Union Government decided to acquire all areas in dispute in the suits pending in the
Allahabad High Court. It was also decided to acquire suitable adjacent area. The acquired area
excluding the area on which the disputed structure stood would be made available to two
Trusts which would be set up for construction of a Ram Temple and a Mosque respectively
and for planned development of the area.

The Government of India had also decided to request the President to seek the opinion of the
Supreme Court on the question whether there was a Hindu temple existing on the site where
the disputed structure stood and to abide by the opinion of the Supreme Court and to take
appropriate steps to enforce the Court's opinion. In pursuance of these decisions, the Union
government passed the Acquisition of Certain Area at Ayodhya Act, 1993.

While deciding the case, Court referred to the Statement Of Objects And Reasons and Long
Title of the Acquisition of Certain Area at Ayodhya Act, 1993 and held that the objective of
the Act was maintaining public order and promoting communal harmony and the spirit of
common brotherhood amongst the people of India. The Statement of Objects and Reasons

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says that there is a long-standing dispute relating to the disputed structure in Ayodhya which
led to communal tension and violence from time to time and ultimately has led to the
destruction of the disputed structure on 6th December, 1992 followed by widespread
communal violence resulting in loss of many lives and destruction of property throughout the
country. The said dispute has thus affected the maintenance of public order and communal
harmony in the country. Obviously, it is necessary to maintain and promote communal
harmony and fraternity amongst the people of India. With this objective in view, it was
considered necessary to acquire the site of the disputed structure and the requisite adjacent
area to be utilised in an appropriate manner to achieve this object.

It was contended by the petitioner that the purpose of acquisition in the present case does not
bring the statute within the ambit of Entry 42, List III[Concurrent list] but is referable to
Entry 1, List II[State list] and, therefore, the Parliament did not have the competence to enact
the same.

But the court held that the legislative competence is traceable to Entry 42, List III
[Concurrent list] and the State of Uttar Pradesh being under President's rule at the relevant
time, the legislative competence of the Parliament, in the circumstances, cannot be doubted.
The Pith and substance of the legislation is "acquisition of property" and that falls squarely
within the ambit of Entry 42, List III. Competing entry set up is Entry 1, List II relating to
"public order". "Acquisition of property" and not "public order" is the Pith and substance of
the statute.

Entry 42, List III[Concurrent list], substituted by the Constitution ' (Seventh Amendment)
Act to read as under:-

Acquisition and requisitioning of property.

This comprehensive entry as a result of the Constitution (Seventh Amendment) Act leaves no
doubt that an acquisition Act of this kind falls clearly within the ambit of this Entry and,
therefore, the legislative competence of the Parliament to enact this legislation cannot be
doubted. This ground of challenge is, therefore, rejected.

Act was challenged on the following grounds too:

It enables transfer of the acquired property including the disputed area to any authority, body
or trust by the Central Government without reference to the real title over the disputed site.

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Perpetuates the mischief of the demolition of the mosque by directing maintenance of the
Status quo as on 7th January, 1993 which enables the Hindus to exercise the right of worship
of some kind in the disputed site keeping the Muslims totally excluded from that area and this
discrimination can be perpetuated to any length of time by the Central Government.

The validity of acquisition is also challenged by others including those who own some of the
acquired properties and in whose case the title is not disputed. Their contention is that
acquisition of their property, title to which is undisputed, is unnecessary.

Parties to the pending suits which have abated, other than the Sunni Central Wakf Board, have
also challenged the validity of the Act, even though on other grounds, violation of Articles 14,
25 and 26 also is alleged on these grounds.

The power of acquisition is the sovereign or prerogative power of the State to acquire
property.. The Supreme Court from the beginning has consistently upheld the sovereign
power of the State to acquire property in Chiranjitlal Chowdhuri v. Union of India as under:

It is a right inherent in every sovereign to take and appropriate private property belonging to
individual citizens for public use. This right, which is described as Eminent Domain in
American law, is like the power of taxation, an off-spring of political necessity, and it is
supposed to be based upon an implied reservation by Government that private property
acquired by its citizens under its protection may be taken or its use controlled for public
benefit irrespective of the wishes of the owner.

Court observed that subject to the protection under Articles 25 and 26 of the Constitution,
places of religious worship like mosques, churches, temples etc. can be acquired under the
State's sovereign power of acquisition. Such acquisition per se does not violate either Article
25 or Article 26 of the Constitution.

Religious denominations can own or acquire properties and administer them in accordance
with law. That does not mean that the property owned by them cannot be acquired. As a result
of acquisition they cease to own that property. Thereafter their right to administer that
property ceases because it is no longer their property. Article 26 does not interfere with the
right of the State to acquire property.

Article 25 does not contain any reference to property unlike Article 26 of the Constitution.
The right to practice, profess and propagate religion guaranteed under Article 25 of the
Constitution does not necessarily include the right to acquire or own or possess property.

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Similarly this right does not extend to the right of worship at any and every place of worship .

Section 3(26) of the General Clauses Act comprehends the categories of properties known to
Indian Law. Article 367 of the Constitution adopts this secular concept of property for
purposes of our Constitution. A temple, church or mosque etc. are essentially immovable
properties and subject to protection under Articles 25 and 26. Every immovable property is
liable to be acquired.

The Central Government would be bound to take all necessary steps to implement the
decision in the suits and other legal proceedings and to hand over the disputed area to the
party found entitled to, the same on the final adjudication made in the suits. The parties to the
suits would be entitled to amend their pleadings suitably in the light of our decision.

Court indicated the consequence if the entire Act had been held to be invalid, it would then
result in revival of the abated suits along with all the interim orders made therein. It would
also then result automatically in revival of the worship of the idols by Hindu devotees, which
too has been stopped from December 1992, with all its ramifications without granting any
benefit to the Muslim community whose practice of worship in the mosque (demolished on
6th December, 1992) had come to a stop. Such a situation would lead to reigniting communal
passions detrimental to the spirit of communal harmony in a secular State.

The best solution in the circumstances, on reyival of suits is, therefore, to maintain Status
quo as on 7th January, 1993 when the law came into force modifying the interim orders in
the suits to that extent by curtailing the practice of worship by Hindus in the disputed area to
the extent it stands reduced under the Act.This being the purpose and true effect of the Act,
it promotes and strengthens the commitment of the nation to secularism instead of negating it.
To hold this provision as anti-secular and slanted in favour of the Hindu community would be
to frustrate an attempt to thwart anti-secularism and unwittingly support the forces which
were responsible for the events of 6th December, 1992.

Applying the Doctrine of severability, Court held that Sub-section (3) of Section 4 of the. Act
abates all pending suits and legal proceedings without providing for an alternative dispute
resolution mechanism for resolution of the dispute between the parties thereto. This is an
extinction of the judicial remedy for resolution of the dispute amounting to negation of rule of
law. Sub-section (3) of Section 4 of the Act is, therefore, unconstitutional and invalid. The
remaining provisions of the Act do not suffer from any invalidity on the construction made

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thereof by us. Sub-section (3) of Section 4 of the Act is severable from the remaining Act.
Accordingly, the challenge to the constitutional validity of the remaining Act, except for Sub-
section (3) of Section 4, is rejected.

Irrespective of the status of a mosque under the Muslim law applicable in the Islamic
countries, the status of a mosque under the Mahomedan Law applicable in secular India is the
same and equal to that of any other place of worship of any religion; and it does not enjoy any
greater immunity from acquisition in exercise of the sovereign or prerogative power of the
State, than that of the places of worship of the other religions. Accordingly, its acquisition is
not prohibited by the provisions in the Constitution of India. But, the acquisition of any
religious place is to be made only in unusual and extraordinary situations for a larger
national purpose keeping in view that such acquisition should not result in extinction of the
right to practice the religion, if the significance of that place be such.

The pending suits and other proceedings relating to the disputed area within which the
structure stand revived for adjudication of the dispute therein, together with the interim orders
made, except to the extent the interim orders stand modified by the provisions of the Act.

The meaning of the word "vest" in Section 3 and Section 6 of the Act has to be so
understood in the different contexts. The disputed area being taken-over by the Central
Government only as a Statutory Receiver, there is no question of payment of compensation
for the same as it is meant to be handed over to the successful party in the suits, in terms of
the ultimate judicial verdict therein, for the faithful implementation of the judicial decision.
The exercise of the power by the Central Government is to be made only then in respect of the
disputed area in n accordance with the final judicial decision, preserving Status quo therein
till then.

A construction which the language of the statute can bear and promotes a larger national
purpose must be preferred to a strict literal construction tending to promote factionalism
and discord.

Court also indicated that the Land Acquisition Act, 1894 is applicable uniformly to all
properties including places of worship. Right of acquisition thereunder was guided by the
express provisions of the Land Acquisition Act, 1894 and executive instructions were issued
to regulate acquisition of places of worship.

The vesting of the adjacent area, other than the disputed area, acquired by the Act in the

215
Central Government is absolute with the power of management and administration thereof as
a Statutory Receiver in accordance with the Act, till its further vesting in any authority or
other body or trustees of any trust in accordance with the Act. Central Government would
exercise its power of vesting that property further in another authority or body or trust in
accordance with the Act in terms of the final adjudication in the pending suits. The further
vesting of the adjacent area, other than the disputed area, in accordance with the Act has to be
made at the time and in the manner indicated, in view of the purpose of its acquisition.

On 13th March 2002 Hon’ble Supreme Court in Writ Petition No.160/200-Mohd. Aslam
Bhure Vs. Union of India, directed to maintain status quo with regard to the entire land,
including the non-disputed acquired plots

JUDGEMENT/DECISION- The acquisition of the place of worship by the Union

government and the vesting of its management to government officials is constitutionally
valid.

Q 25- Section 293 of CrPC deals with using certain reports of government. scientific
experts. It originally provided for submission of reports by director of department
competent to submit such reports. In 2005, the provision was amended and included
'Deputy Director' and 'Assistant Director in it. Decide whether the report by Deputy
Director submitted in 2004 could be accepted under the provision.

FACTS: Write down from the question.

ISSUES: [1] Whether the amendment of Sec.293 CrPc in 2005 applicable retrospectively
to pre-amendment criminal trials?

[2] Whether Rule against Retrospectivity applicable to procedural laws?

[3] Whether the report submitted by Deputy director in 2004 is admissible as evidence?

REASONING/ANALYSIS: According to Maxwell, alterations in the course of procedure are

always retrospective, unless there is a good reason or other why they should not be. It is a
well settled principle. Rule against retrospectivity does not apply to statutes which only alter
the form of procedure or the admissibility of evidence. Thus, amendments in civil or criminal
trial procedures, law of evidence and limitation etc, where they are merely matters of
procedure, will apply even to pending cases. Procedural amendments to a law, in the absence
of anything contrary are retrospective in the sense that they apply to all actions after the date

216
they come into force even though the action may have begun earlier or the claim on which the
action may be based accrued on an anterior date. Where a procedural statute is passed for the
purpose of supplying an omission in a former statute or for explaining a former statute, the
subsequent statute relates back to the time when the prior statute was passed. All procedural
laws are retrospective , unless the legislature expressly says they are not-G.P.Nayyar vs.
State[AIR1979SC602].

Hitendra Vishnu Thakur v. State of Maharashtra (1992)-This case defined the scope of the
amendment brought in an Act and whether it should be allowed to operate retrospectively.
The Court laid down that if any given law affects the substantive rights of any individual, then
it should not be allowed to operate retrospectively. Apart from this, several other general
principles were also laid down in this case, which are as follows.

If any Act affects the substantive rights of an individual, it is assumed to be prospective in its
operation unless stated expressly, either in oral or written form that the law is said to operate
in a retrospective manner.

Each and every person who approaches the court for certain claims is said to have certain
rights stated in substantive law but these are not stated in any procedural law.

All the laws relating to forum and limitation are said to be procedural, but all the laws relating
to the right to appeal or the right to take any given action are substantive.

Any Act that changes the procedure or leads to a change in the period of punishment shall be
presumed as prospective in operation unless stated otherwise either in spoken or through a
written mode.

A procedural statute should not be applied retrospectively where the impact of the same is
going to create new rights or obligations or even impose new duties on any transaction that
has already taken place.

Dwarka Prasad v. State of M.P., 2016 SCC Online MP 671- Madhya Pradesh High Court
while ruling through its power under Sec. 482 CrPC, the Court has held that, the Criminal
Procedure Code (Madhya Pradesh Amendment) Act, 2007 is retrospective in its operation. It
was further held that retrospective operation of the Amendment Act will not affect the cases
wherein the trial before the Magistrate has reached an ADVANCED STAGE. The trial of a
case may be said to have reached an advanced stage where any material witness/witnesses

217
have been examined by the prosecution. The Amendment Act came into force with effect
from 22nd February 2008. The amendment sought to change the forum for the trial of various
offences punishable under the IPC, from that of a Court of Magistrate of First Class to that of
a Court of Sessions. The court concluded by applying retrospective operation to the
Amendment Act and also held further to clarify that, “where the Magistrate being of the
opinion that the case is not at the advanced stage of trial, commits it to the Court of Session
but the Sessions Court differs and is of the opinion that the trial in the case is already in
advanced stage, it has option either to try the case itself or remit it back to the Chief Judicial
Magistrate or Judicial Magistrate of First Class but Session Court has to exercise this
jurisdiction in such a way that the purpose of saving is not frustrated and no prejudice is
caused to either party.

Sec.293 CrPc says about Reports of certain Government scientific experts and enumerates a
list of officials whose reports are admissible as evidence in a criminal proceeding. Deputy
director and Assistant director was added to this list by an amendment in 2005.

From the facts of the problem, it is clear that admitting the report of the Deputy director
submitted in 2004 in the course of a trial in 2005 will not cause any manifest injustice to the
substantive rights of the parties even though the report of Deputy Director was inadmissible
as evidence before the amendment of Sec.293 CrPc in 2005. In other words, the 2005
amendment retrospectively validated the admissibility of Deputy director’s report.

JUDGEMENT/DECISION: Report by Deputy Director submitted in 2004 can be accepted

as evidence in 2005 under Se.293 CrPC.

Q 26- A Central Act interalia provides punishment for "assistance in the management of a
brothel". M, a commerce student and the step - daughter of B, lived in a brothel managed
by her stepmother. She managed all the accounts of the house. Can M be held liable under
the Act?

FACTS: Write down from the question.

ISSUES: 1) Whether the step daughter of the brothel owner (M. Com student) living in
the brothel and managing all accounts of the house can be punished for 'Assistance in the
management of a brothel' under the Central Act?

2) This being a Penal Statute, whether Strict Rule of construction need to be followed?

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REASONING /ANALYSIS: From the facts of the question is clear that the Act in question
is a Penal Statute. Strict rule of interpretation means that while interpreting a statute, courts
should confine themselves with in the limits of the provisions of that statute itself. Courts are
not permitted to travel outside the limits of the statute in order to find out the true meaning of
its provisions. There is no room for presumptions or equity in this rule. Strict rule is mainly
used while interpreting statutes containing stringent provisions and heavy punishments like
penal statutes and taxation statutes. Penal statutes are laws which creates offences set out the
elements of the offence and lays down the conditions for imposing punishments and
measurement of punishment. Also includes laws containing provisions concerning criminal
procedure and jurisdiction of criminal courts. According to Maxwell; strict interpretation of
penal statutes also require:

* Express and clear language creating an offence,

* Express and clear language laying down the elements of the offence, i.e; the
conditions under which a person can be treated as having committed the offence.

* If the words or sentence in the statute gives rise to reasonable doubt regarding its
meaning, which cannot be solved using the canons of interpretation, then the benefit of
doubt should be given to the subject (accused) and against the legislature which failed
to express itself clearly.

* Court must make sure that the accused comes clearly and undoubtedly within the plain
words of the Penal statute.

* generally, burden of proof is on the prosecution to prove the guilt of the accused
beyond reasonable doubt.

* Age, character and experience of the accused must be considered.

* Mens rea (guilty intention) should be taken into consideration before imposing
punishment (except in statutory offences and cases involving vicarious liability where
Mens Rea is not relevant).

The facts of the problem disclose that it is a penal statute related to suppression of immoral
traffic activities. The accused being an M com student is definitely above 18 years of age.

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In Smt Afjal vs State of UP (2019) 3 All CRIR 3074 dealing with a case under The Immoral
Traffic (Prevention) Act, 1956. The court referred to sec.3 (1) of the Act which clearly lays
down punishment of rigorous imprisonment from 2 to 5 years and fine for persons who keeps,
manages or acts or assists in the keeping or management of a brothel. However, the section
does not explain which kind of acts would amount to such assistance or managing. Court also
referred to Sec. 4 of the Act which provides punishment for living on the earnings of
prostitution of any other person. Where any person over the age of 18 years is proved:

a) to be living with or habitually in the company of a prostitution or

b) to have exercised control, direction or influence over the movements of a prostitute in

such a manner as to show that such person is aiding, abetting or compelling her
prostitution or

c) acting as a tout or pimp on behalf of a prostitute, it shall be presumed, until the

contrary is proved, that such person is knowingly living on the earnings of prostitution
of another person.

Court affirmed in para 37 of the judgement that there where is a presumption against the
person who is either owner or manager or agent or assistant in keeping the brothel and burden
of proof is upon such accused to prove the contrary otherwise. Where the accused has not
produced any such evidence in defence and there is absolutely no reason for doubt in the
prosecution case, then the accused can be made liable under these sections.

In Bhulu mia vs State (AIR 1969 CAL 416): Court held that mere collection of rent from the
inmates of a brothel would not amount to management or assistance in keeping a brothel.
Some kind of participation beyond mere collection of rent needs to be proved by the
prosecution. In this case, the accused was never ever present in the brothel while customers
were received and he did not in any way act or assist in running the brothel. There was no
evidence that he was in charge and allowed the premises to be used as a brothel, or let out the
premises or that he was a party to the lease- agreement of the premises as a brothel. Therefore,
the accused was acquitted.

JUDGEMENT / DECISION: The step daughter of the brothel owner who is above the age
of 18; assisted in running the brothel in an active participation by managing all accounts of

220
the brothel. She can clearly be held liable under the statute for "assistance in the management
of the brothel".

Q 27- Ms. X the owner of a brothel was staying in the same building with his wife and
minor daughters. When he was charged for running the brothel house, his wife and
children were charged under section 33 of the Sexual offences Act 1956 for assisting in the
management of the brothel. Discuss.

FACTS: Write down from the question.

ISSUES: Refer Q No: 25 and write it here with necessary modifications.

REASONING/ANALYSIS: Refer Q No: 25 and write it here with necessary

modifications.

JUDGEMENT / DECISION: The wife of the brothel owner may be held liable for
managing, acting or assistance in the management of the brothel under sec. 33 of the Sexual
Offences Act, 1956 of England. However; she cannot be made liable merely due to the fact
that she happened to be the wife of the brothel owner. Some sort of participation should be
proved. The minor daughters of the brothel owner cannot be made liable unless it is shown
that they actively, knowingly assisted in the management of the brothel. (It is to be noted that
the Act does not exempt minors from liability in the matter of keeping, assisting or managing
a brothel). However; the court may consider the age and helpless situation of the minor
daughters as a mitigating factor while awarding punishment.

Q 28- The GST Act imposed 18% tax on "Dyes, paints, varnishes, enamels, glue, paint
brush, sandpaper, turpentine oil, bale oil and polish other than boot polish". The petitioner
was involved in the sale of colour powders which were ordinarily used for dyeing cloth or
other articles. He contended that colour powders are not included in the list of the articles
mentioned in the entry, it cannot be in the category of 'dye' and therefore not a taxable
item. Decide.

FACTS: Write down from the question.

ISSUES: 1)Whether colour powders which are ordinarily used for dying cloth and other
articles can be made taxable in the category of 'dyes' under the GST Act ?

2)Whether Strict rule of construction of taxing statutes is applicable in this case?

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 REASONING / ANALYSIS: According to the rules of Strict interpretation of taxing
statutes, there is no presumption or equity as to tax. If a person comes clearly within the
scope of the charging section of a taxing statute, he must be taxed no matter however
great his hardship maybe. Partington vs AG (1869)LR 4HL, Forage&Co. vs
MunicipalCorpn Bombay(1999) A person can be taxed only if the words of the taxing
statute clearly, expressly and unambiguously impose tax liability upon him. There is no
implied power to tax. The power to tax must be express and clear. Russell vs Scott
(1948)2All ER. If the words of the taxing statute are open to double meanings; one in favour of
the tax payer and one against him, then that meaning which is favourable to the tax payer must be
adopted. CIT vs Ellis’s bridge gymkhana (1998).

CIT vs Jalgaon Electric Supply Co. (1960). Held that there is nothing wrong or unjust, if the
tax payer escapes from the law due to inability of the legislature to express itself clearly.

In Alpine Industries vs CCE (2003) It was held that while classifying goods under a taxing
statute; specific headings should be given more preference than general headings.

In the present cases;'colour powders' are not specifically included in the list of articles
mentioned in the entry under the GST Act. At the same time, 'colour powders' are not
expressly excluded from the entry. The only item expressly excluded from the entry is 'boot-
Polish'.Since these colour powders are admittedly used ordinarily for dying cloth or other
articles; it can be brought under the category of 'Dyes' under that entry.

In M/S A.P Processors vs State of Haryana (2017), Punjab and Haryana held that, while
imposing tax on dyes used by the assessee in job- work process of dying of fabric; the
quantity of dyes which get washed and wasted away during the process should not be
subjected to VAT. In Sree Krishna Spinning and Weaving Mills (P) Ltd vs Authority for
clarification and Advance Rulings, Bangalore(2010)27VST 194. It was noted that about 10
% to 20% of the dying Chemicals are consumed by the fabric and the remaining get washed
out. The assessing officer was asked to add to the value of turnover in accordance with law
and actual percentage of chemicals, dyes and colours which were retained or embedded on the
textile or fabric.

Dyes may be in the form of liquid or powders. Dyes used for textiles and fabrics are intended
to be of permanent nature unlike 'holy' colour powders or 'rangoli' colour powders which are
intented to be of temporary nature. In this problem, the colour powders of the petitioner are of

222
permanent matter as it is used for dying cloth and other articles. Hence; it can be brought
under the category of 'Dyes' in the entry of GST Act.

JUDGEMENT /DECISION: Color powders used for dying cloth or other articles can be
taxable under the heading of Dyes under the GST Act.

Q 29-: The GST Act of country X empowered taxing of "food" and "food stuffs" sold
in restaurants. Accordingly, it imposed tax on tea, coffee and hot drinking water sold by
restaurants GST. Biju challenges the same. Decide.

FACTS: Write down from the question.

ISSUES:1) whether tea, coffee and hot drinking water sold in Biju's restaurant is taxable
under the heading of 'food' and 'food stuffs' under the GST Act?

2)Whether the rule of strict interpretation of taxing statutes to be applied in this case?

REASONING /ANALYSIS: According to the rules of Strict interpretation of taxing

statutes; there is no presumption or equity as to tax. If a person comes clearly within the
scope of the charging section; he must be taxed no matter however great hardship maybe.
Patrington vs AG (1869), Forage & Co.ltd vs Municipal Corpn, Bombay (1999). A
person can be taxed only if the words of the taxing statute clearly, expressly and
unambiguously impose tax liability upon him. There is no implied power to tax. Russel vs
Scott (1948)2 All ER. If the words of the taxing statute are open to double meanings; one
in favour of the assessee and one against him, then that meaning which is favorable to the
assessee must be adopted vs Ellis Bridge Gymkhana(1998).

In Alpine Industries vs CCE (2003) It was held that while classifying goods under a taxing
statute; specific headings should be given more preference than general headings. In this case
the court had held that 'lip- balm' was taxable under the specific head of preparation for skin
care and not under the general heading of medicament.

In the present problem, ready to drink tea and coffee served in restaurants can be specifically
brought under the category of 'food', under the GST Act, as there are the common
nonalcoholic beverages served in restaurants.(GST Act imposes separate rates of tax on
alcoholic and nonalcoholic beverages).But 'hot drinking water cannot be brought either under
the category of food or 'food stuff' under the GST Act. [Under the GST Act, only packaged
and bottled drinking water is taxable].

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JUDGEMENT/ DECISION: Tea and coffee served in restaurants in taxable under GST Act.
Hot drinking water is not taxable.

Q 30- Section 4 of the Benami Transaction Act bars the suits to enforce any right in respect
of any property held benamy or on behalf of the person claiming to be the real owner and
no defence based on any right in respect of any property held to be the real owner. How far
the above provisions applied under Retrospective Act? State the grounds.

FACTS: Write down from the question.

ISSUES: 1) Whether the provisions of Benami Transaction Act could be given

retrospective effect, so as to impair the already existing rights of the concerned parties?

2) whether Benami Transaction Act is a Declaratory Statute, and if so; what are the rules
of interpretation to be followed?

3) Whether Rule against retrospectivity (Ex post facto laws) applicable in this case?

REASONING ANALYSIS: A statute is said to be retrospective; it is takes away or

impairs already vested rights or creates new obligations, duties or disabilities in respect of
past transactions. The general rule is that statutes are prima- facie prospective. Statutes
should not be given retrospective operation unless it is expressly or impliedly declared in
the statute itself. If a statute is capable of two interpretations; it should be construed as
prospective only. A statute should not be interpreted to have a greater retrospectivity than
what its language permits.

Rule against retrospectivity is based on the presumption that the legislature does not intent to
be unjust. It is based on the maximum "Nova Constitutum Futuris form imponere debet
non practeritis [ Every new law should affect the future and not the past].

However, the rule against retrospectivity is not rigid or inflexible. If the legislative intent is
clear, then the court is bound to give retrospective operation to the statute.

In S Rajagopala Reddy by L. P’s vs Padmini Chandrashekhar (AIR 1996 SC 238) It was

held that the Benami Transactions (Prohibition) Act, 1988 is prospective in nature. It will not
affect past pending legal proceedings on benami transactions. This is because it is a
Declaratory statute, which declares benami transactions unenforceable. Declaratory statute is
to be of retrospective effect. BUT, in this case, the statute was not expressly made

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retrospective so; the Act will not affect benami transactions which took place before the
passing of the Act.

Pending actions on benami transactions have to be decided according to the earlier laws itself.
Otherwise, it will badly affect vested rights. But; if the legislature intended that the statute is
to affect pending cases; then the courts must give effect to it.Thus, when a substantive law is
altered during the pendency of a case; the rights of the parties are to be decided according to
the already existing law and not according to the changed law. But if the new law or amended
law shows clear intention to affect pending cases; then it must be given effect to.

DECISION / JUDGEMENT: If Sec.4 of the Benami Transactions Act was clearly expressed
to have retrospective operation; then it can adversely affect the right to sue or defend of the
parties of existing benami transactions. However; Sec.4 cannot be given retrospective
operation by mere implication. The intention of the legislature to give retrospective effect
should be clearly manifest. Otherwise, it should be given prospective effect to prevent
impairing the rights of the parties to already pending benami transactions.

Q 31- The law of limitation prescribes a new period of limitation comparing to the old one.
A litigant wants to initiate suit under the new revised period of limitation which the right to
sue already over under the earlier Limitation Act. Decide.

FACTS: Write down from the question.

ISSUES: 1)Whether the litigant can take advantage of the new period of limitation in
order to institute a time barred suit?

2) Whether the new period of limitation applies prospectively or retrospectively?

3) Which rule of interpretation should the court follow while construing such limitation
periods?

REASONING ANALYSIS: Limitation laws are procedural in nature. It has been well
established in several cases that no person can have a vested right in a course of
procedure. Mahadev Prasad Singh vs Ram Lakhan (1980) AllLR 548(SC).

The general rule that no statute should be construed so as to have a retrospective operation
unless its language is such as to require such a construction does not apply to validating Acts
or ordinances which by nature are intented to act upon past transactions Ahamad Khan vs
Crown (49PLR 295)

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In construing fixation of periods of limitations for such provisions; equitable considerations
are out of place and the strict grammatical meaning of the words is the only safe guide Kiran
Devi versus Abdul Wahid (AIR 1966All 105). In State of Bihar vs Mohammed Ismail (AIR
1966 Pat 1) It was held that law of limitation is an artificial mode to terminate justiciable
causes and has to be construed strictly with a leaning on the benefits of the suitor. Clearly
held in NKC Syed Mohammed Rowther vs Dy CTO (1958)1 Mad LJ 30 -That if the right to
sue or apply has become barred by the provisions of the law in force on the date of the coming
into force of the later (or amended) Act; such barred right is not revived by the application of
the later (or amended) Act. Lakshmi Chand vs Challu(1978)Jab LJ245- In the garb of
interpretation, the courts cannot take away valuable rights accrued to the opposite party by the
expiry of limitation. Kalia Murthi vs Fine Gori Thikkal Wakf (2008)9 SCC 306) No statute
should be construed retrospective unless the language requires so. But procedural laws are an
exception to this general rule. An exception to this exception; is the case were the right of suit
of suit is already time barred.

Rajesh Kumar vs Dy CIT (2007) 2 SCC 181 Supreme Court held that a statute of limitation is
a statute of repose and is subject to exceptions contained therein.

New India Insurance Co. Ltd vs Shanti Misra (AIR 1976 SC 237) -Held that; when a later
Act provides for a shorter period of limitation than that provided by the earlier Act; and if a
right to sue is subsisting according to the earlier Act on the date when the later Act comes into
force; it will not be taken to be extinguished.

Kalia Murthi vs Fine Gori Thikkal Wakf (2008) 9 SCC 306 It was clearly held that if a right
of action had become barred under an earlier Limitation Act; it cannot be revived by a later
Limitation Act. Even if the later Limitation Act provides for a larger period of limitation, then
that provided by the earlier Limitation Act.

Jambekar vs State of Gujarat (1973) 3 SCC 524 Held that the only safe guide in construing
the provisions of the Limitation Act is to give Strict grammatical meaning to the words used
in the statute and in that process, equities should not be imported. If the Legislature has
expressly intented to give the benefit of extended period of limitation to time barred suits and
applications; it can be done so.

In Lakshmi Das vs Kantii Ratna (AIR 1955 Kutch 2) By virtue of Kutch (application of
Laws) Order,1969, the Indian Limitation Act was applied to Kutch area. An Adaptation Order
was also passed extending the limitation period by 3 years from the date of commencement of

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the Act in Kutch. The benefit of this extended limitation period was allowed only in respect of
those suits and applications which would otherwise become barred due to the coming into
force of the Limitation Act in Kutch.

To conclude; the statutes of limitation are retrospective in so far as they apply to legal
proceedings brought after their operation to enforce causes of action which accrued earlier;
but they are prospective in the sense that they neither have the effect of reviving a right of
action which was already barred on the date of their coming into operation. Limitation laws
also do not have the effect of extinguishing a right of action subsisting on the date on which it
came into operation. However; a statute by expresses or implied provision, may revive a
barred claim by retrospectively extending the Limitation period.

JUDGEMENT/ DECISION: The litigant cannot initiate suit under the new revised period of
limitation because his right to sue is already over under the earlier limitation law. However; if
the new limitation law clearly revises already barred claims retrospectively; then he may
initiate the suit.

Q 32- Babu, a landlord filed a suit for eviction of Ram, a tenant for non-payment of rent
for 4 months. During the pendency of the suit, the State enacted the law prohibiting
eviction of tenants on the ground of non-payment of rent for a period less than 6 months.
Ram claims the benefit of the Act. Decide.

FACTS: Write down from the question.

ISSUES :1) whether the law enacted by the state prohibiting eviction of tenants on
theground of non-payment of rent for a period less than 6 months is retrospective in
nature ?

2) Will this new law affect pending suites?

3) Can Ram the tenant; resist the eviction suit filed by the landlord, Babu on this
ground? 4)Which rule of interpretation should be adopted by courts when a change in
law altering substantive rights is introduced during the pendency of the case?

5) Whether Rule against Retrospectivity applicable?

REASONING/ ANALYSIS: It is well established through several leading cases that a

retrospective statute which affects rights in existence is not readily construed to affect

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adjudication of pending proceedings. In other words, courts have always leaned very strongly
against applying a new Act to a pending case, unless the language of the new Act compels the
court to do so.- K.C Mukherjee vs Ram Ratan Kuer (AIR 1936 PC 49).

In State of Punjab vs Bhajan Kaur (AIR 2008 SC 2276) It was held that the golden rule of
construction in such cases is that, in the absence of anything in the Act to show that it is to
have a retrospective operation, it cannot be so construed as to have the effect of altering the
law applicable to a claim in litigation at the time when the Act was passed.

Facts of the problem similar to those in the case of Raffiquennesa vs Lal Bahadur Chhetri (
AIR 1964 SC 1511) In this case, sec. 5(1)of the Assam Non-Agricultural Urban Tenancy
Act,1955 which enacted that" a tenant shall not be ejected by the landlord except on the
ground of non-payment of rent" was held to apply to pending proceedings for eviction of the
tenant even at the appellate stage. Court pointed out that if the Legislature intent was to grant
protection to the tenants prospectively (i.e.; only in respect of suits filed after the coming into
force of the Act), then it should have used the words "the tenant shall not be sued in
ejectment" means instead of providing the words "the tenant shall not be ejected”. Hence, the
benefit of the Act can be claimed by tenants in pending proceedings so the Act is
retrospective by clear implication. JUDGEMENT/DECISION: Ram the tenant can claim the
benefit of this Act against Babu, the landlord in the pending eviction suit filed by Babu
against Ram.

Q 33- The Railway Claims Tribunal Act, 1987 excludes jurisdiction of all the courts to
entertain claims against a railway administration and vest the same in the Claims Tribunal
constituted under the Act. The Acts confers certain powers of civil courts exercisable under
Civil Procedure Code, but there is no specific provision regarding the application of claims
of indigent person. Does the tribunal do have implied power of invoking the provision
under CPC? Give reasons.

FACTS: Write down from the question.

ISSUES: 1) Whether the Railway Tribunal can assume powers of a Civil Court to
entertain indigency applications, in the absence of express provisions under the Railway
Claims Tribunals Act,1987?

2) Which rule or presumption should be applied by the court while interpreting such
provisions, having regard to the consequences?

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 REASONING /ANALYSIS: REGARD TO CONSEQUENCES is one of the important
rules followed by courts in the process of interpretation of statutes. If the language used in
the statute is capable of being more than one meaning, in selecting, the true meaning
regard must be had to the consequences of adopting such meaning. A construction that
results in hardship, serious inconvenience, injustice, absurdity, anomaly, inconsistency,
uncertainty and friction in the system which the statute intents to regulate has to be
rejected. Preference should be given to the construction which avoids such results- Brij
Gopal vs state of MP (1978 MPLJ 70). In selecting out of different interpretations, the
court will adopt that which is just, reasonable and sensible. It is presumed that the
legislature used those words which least offends our sense of Justice.

Facts of the problem similar to those in the case of A.A Hajee Muniuddin vs Indian
Railways (AIR 1993 SC 361). In this case, the Supreme Court held that the Railway Tribunal
has implied power to invoke the provisions of order 33 of CPC (indigency applications). A
contrary interpretation would result in gross injustice to persons unable to pay the required fee
as they would either be left without a remedy or be compelled to approach ordinary civil
courts.

JUDGMENT/ DECISION: Railway Tribunal has implied power to entertain indigency

applications by invoking order 33 of CPC, 1908.

Q 34- X was charged for rape and the trial was pending. The maximum punishment for
rape was seven years imprisonment and fine up to Rs. 50,000/-. While the trial was being
conducted, the Criminal law amendment act was passed and the punishment of rape was
enhanced to a minimum imprisonment of 10 years and maximum Life imprisonment.
Whether X could be awarded 10 years imprisonment for rape. Discuss.

FACTS: Write down from the question.

ISSUES:1) Whether 'X' could be awarded with enhanced punishment by virtue of the
changes made by the criminal law amendment?

2) Whether Criminal laws can be given Retrospective effect so as to enhance

punishment for an offence?

3) Rule of interpretation to be followed while interpreting Ex-post facto laws?

4) Whether strict construction of Penal statutes applicable here?

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REASONING /ANALYSIS: It is a cardinal principle of construction that every Statute is
prima- facie prospective unless it is especially or by necessary implications made to have
retrospective operation. The maxim Nova Constitutio Futuris Formam Imponere debet non
praiteritis (a new law ought to regulate what is to follow, not the past). Penal statutes are
generally considered prospective. Those penal statutes which create offences or which have
the effect of increasing penalties for existing offences will only be prospective due to
Constitutional protection against Ex-post facto laws in Article 20(1) of the Constitution.

Held in 'W. Ramnad Electric Distribution Co. Ltd vs State of Madras (AIR 1962 SC 1753).

It is one of the accepted principles in the Strict construction of penal statutes that penal
statutes cannot be given retrospective effect. But, if the Penal Statute imposes lighter
punishment with retrospective effect, then its benefit should be given to the accused- Kedar
Nath vs State West

Bengal (1953) SC 404.'X' committed an offence in 1947 under Prevention of Corruption Act,
which then prescribed punishment of imprisonment or fine or both in 1949 by an amendment
of the law, this punishment was enhanced. Supreme Court held that this enhanced the
punishment could not be applicable to the offence committed by 'X' in 1947. Similarly, the
Criminal Law Amendment Act, 2013 which was necessitated by the Delhi rape case
(Nirbhaya case) came into effect on. Provided enhanced punishment for Rape. But, the
accused in Nirbhaya case were tried and punished under the pre- 2013 criminal law itself.

JUDGEMENT/ DECISION: 'X' cannot be awarded enhanced punishment for rape because
he had committed the offence before this change in criminal law came into effect.

Q 35- ‘X’ a government employee was charged for criminal misconduct under the
Prevention of corruption act 1947. Section 5 (1)(d) of the act provides, a public servant is
said to commit the offence of criminal misconduct in the discharge of his duty, if he by
corrupt or illegal means or by otherwise abusing his position as public servant, obtains for
himself or for any other person any valuable things or pecuniary advantage. But the
employee contented that clause (d) did not cover the benefit which was not derived from a
third person but was derived by causing loss to the government by abuse of power and that
he is not liable to be charged for criminal misconduct. Decide.

FACTS: Write down from the question.

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 ISSUES: 1) whether the government employee 'X' can escape the charge of criminal
misconduct under the Prevention of Corruption Act,1947 on the contention that clause (d)
of sec.5 (1) covered only those benefits derived by causing loss to the government by
abuse of power?

2) Whether strict construction of penal statues to be applied to the Prevention of

Corruption Act,1947?

REASONING /ANALYSIS: As per the rule of strict construction of Penal statutes, if two
possible and reasonable constructions can be put upon a penal provision, the court must lean
towards that construction which exempt the accused from punishment rather than the
interpretation which makes him liable to punishment. Person charged with an offence has the
right to say that the offence charged against him; though within the words, of the statute is not
within the spirit of the statute.

In short; clear language is needed to create a crime and make a person liable for the crime.
However; the duty of the court is to give effect to the purpose of the Act as expressed in clear
and unambiguous language and this obligation is not altered just because the Act is penal in
character. Facts of the problem similar to those in the case of M. Narayanan Nambiar vs
State of Kerala (AIR 1963 SC 1116). Referring to the Prevention of Corruption Act,1947
Subbarao J. observed that the Act was brought with the intent to purify public administration.
In this case; the court did not accept the argument of the accused that clause (d) of sec.5 (1) of
the Prevention of Corruption Act should be construed strictly. Court held that the
comprehensive language used in sec. 5(1) (d) covered benefits which were not derived from a
third person too. The clause is not limited to benefits derived by causing loss to government
by abuse of power. If the argument of the accused is accepted; it would be against the spirit of
the statute. In this case; the accused, a Special Revenue Inspector had obtained and
assignment of government land in the name of his brother -in law without revealing the
relationship and by under valuing the trees standing on the land. The accused had argued that
Sec.5(1)(d); being a penal provision should be construed strictly so as to cover cases were in
there is direct benefit obtained by a public servant for any other person from a third party and
the words of sec.5(1)(d) does not cover a case of wrongful loss caused to the government by
abuse of his power.

Referring to various precedents; the court held that undoubtedly; all penal statutes must be
construed strictly; that is the court must see that the thing charged as an offence is within the

231
plain meaning of the words used; and must not strain the words to fill up a 'casus omissus'.
But if the thing done by the accused is clearly within the mischief that has been intented to be
remedied by the legislature; the court must look beyond the words into the spirit of the
enactment and interpret it according to the fair, common sense meaning of the language used.

JUDGMENT/DECISION: 'X’; the government employee can be held liable under

sec.5(1)(d)of the Prevention of Corruption Act.

Q 36- A sixteen-year-old boy was convicted for outraging the modesty of a girl aged seven
years after having committed house trespass and was imprisoned for six months and with
fine. When the Probation of Offenders Act was enacted, he claimed the benefit under it.

FACTS: Write down from the question.

ISSUES: 1) Whether the accused can claim the benefit under a criminal law which was
not in force at the time of his committing of the offence?

2) Whether the benevolent provisions of the Probation of Offenders Act be given

retrospective effect?

3) Whether the rule against Ex post facto laws is applicable here?

REASONING / ANALYSIS: It is a well-established principle that criminal laws which

create new offences or enhance punishment for existing offences should not be given
retrospective effect. This protection against Ex post facto laws is guaranteed by article 20
(1) of the Constitution too. But, if a Penal Statute imposes lighter punishment or lenient
provisions like probation, etc ; then its benefit can be given to the accused with
retrospective effect.

Facts of the problem similar to those in the case of Ratanlal vs State of Punjab (1965 AIR
444) Supreme Court allowed for retrospective application of criminal laws in situations were
the issue at hand concerns reduction of punishment for the said offence. In this case involving
conviction of a 16-year-old boy who trespassed a private property and molested a girl; the
subsequent enactment of the Probation of Offenders Act specifying that those under 21 years
of age, be sent to juvenile facilities; the court permitted it under Article 21 of the Constitution.
Rule of Beneficent construction was followed by the court in order to give the accused; with
the benefit provided under the Probation of Offenders Act.

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JUDGMENT/DECISION: The sixteen year old boy can claim the benefit under the
Probation of Offenders Act.

Q 37- Section 129 of the Motor Vehicle Act empowers any police officer authorized in this
behalf or other person authorized by the State Government to detain and seize the vehicle
used without certificate of registration or permit. How far the rule of 'ejusdem generis' can
be applied for the expression "other person"?

FACTS: Write down from the question.

ISSUES: 1) Whether the words 'other person' in section 129 of the Motor Vehicles Act
includes person with the powers of police or not?

2) Whether the rule of "EJUSDEM GENERIS " can be applied in this case to ascertain
the true legislative intent?

REASONING/ ANALYSIS: EJUSDEM GENERIS is a subsidiary rule of interpretation.

According to this rule; when specific particular words pertaining to a class, category of
genus are followed by general words; then the general words are construed to be limited
to the thing of the same kind or species as the specific words. However, the meaning of
the general words cannot be restricted to the category of the preceding specific words if
the language or the context and policy of the Act demands otherwise.

Facts of the case are similar to those in the case of Ishwar Singh Bagga vs State of Rajasthan
(1987) 1 SCC 113. In the case, the words 'other person' in section 129 of Motor Vehicles Act
was held to include only government officers with authority to detain and seize vehicles.Court
did not apply the rule of EJUSDEM GENERIS in this case. Held that the words 'other person'
cannot be restricted to a single species namely "police officer"

JUDGEMENT/DECISION: Rule of EJUSDEM GENERIS cannot be applied in this case.

The term "any other person" in section 129 of the Motor Vehicles Act can include any
government officer authorized to detain and seize vehicles and is not restricted to the same
kind of species of "police officers".

Q 38- An employee in a shop was convicted under the old Prevention of Food Adulteration
Act 1954 for having sold adulterated food. He argued that since he did not know that the
food sold by him was adulterated, he could not be convicted under section 16 of the Act
because the enactment being a penal statute had to be strictly interpreted. Section 16

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penalizes the selling of adulterated food and section 19 says that the absence of guilty
knowledge is not a defence. Decide.

FACTS: Write down from the question.

ISSUES: Whether the absence of 'mens-rea' (guilty knowledge) about the fact of food
adulteration can discharge the employee from liability under section 16 of Prevention of
Food Adulteration Act?

2) Whether strict construction of Penal statutes is to be applied in this case ?

REASONING/ANALYSIS: As per the rule of Strict construction of Penal Statutes; if two

possible and reasonable Constructions can be put upon a penal provision; the court must lean
towards that interpretation which exempts the accused from criminal liability rather than the
interpretation which make him liable. MENS REA (guilt intention) should also be taken into
consideration before imposing punishment. However, the STATUTORY OFFENCE and
cases involving VICARIOUS LIABILITY are exceptions were Mens Rea is not relevant.

Offences in Prevention of Food Adulteration Act come under category of Statutory offences.
Facts of the problem similar to those in the case of Sarjoo Prasad vs State of UP(AIR 1962
SC 631) .Supreme Court held that any person, whether employer or employee contravening
the provisions of the food Adulteration Act,1954 is liable to punishment under section 16 of
the Act and it was not necessary for the prosecution to establish that the person concerned has
guilty knowledge or intention or that he knew that the article was adulterated.

JUDGEMENT/ DECISION: Employee is liable under section 16 of Food Adulteration Act.

His lack of knowledge about the fact of adulteration is totally irrelevant.

Q 39- Some members of the Legislative assembly were disqualified by the Speaker of the
Assembly on the ground of defection. The members challenged the order of the Speaker
and also the constitutional validity of the Tenth Schedule to the Constitution. Para 7 of the
Tenth Schedule was challenged on the ground that it took away the jurisdiction of all
Courts, including the Supreme Court, to review the order of the Speaker under that
Schedule. Decide the matter applying the relevant rules of interpretation.

FACTS: Write down from the question.

ISSUES: 1) Whether para seven of 10th schedule of the constitution (anti- defection law)

234
 which ousts the jurisdiction of all courts including Supreme Court is constitutionally
valid?

2) Whether the members of the Legislative Assembly are totally barred from
approaching any court to review in order to the orders of the speaker?

3) What are the rules of interpretation to be followed by the court while construing such
ouster clauses?

4) Whether presumption of constitutionality and doctrine of severability applicable in

this case?

REASONING /ANALYSIS: Facts of the problem are similar to those in the leading case of
Kilhota Hollohan vs Zachillu (AIR 1993 SC 412) In this case; the Speaker by virtue of
powers under the 10th schedule of the constitution; passed an order to prohibit an MLA from
serving in the Legislative Assembly due to defection. As per the provisions of the 10th
schedule; the orders of the speaker in this regard were final and conclusive and not to be
called in question in any court. In other words; judicial review of the Speaker's orders was
made impossible under the 10th schedule.

Court held that in statutes affecting jurisdiction of courts; there is a presumption or rule
against excluding jurisdiction of courts. However; this rule is attracted only where two or
more reasonably possible constructions are open on the language of the statute and not where
the legislative intent is plain and manifest to oust the jurisdiction. There is a strong
presumption that civil courts have jurisdiction to decide all questions of civil nature.
Therefore, the exclusion of jurisdiction of civil courts is not to be readily inferred and such
exclusion must be explicitly expressed or clearly implied by the words of the statute.

Court held that even a provision in the constitution conferring finality to the decision of the
authority (here; speaker) is not to be interpreted as completely excluding judicial review under
Articles 136, 226 and 227 of the Constitution, but such judicial review can be exercised only
in case of jurisdictional errors; namely infirmities based on violation of constitutional
mandates,mala-fides, violation of natural justice and the perversity. There is a prima-facie
presumption in favour of constitutionality of a statute or legal provision. Burden of proof is
upon the person asserting that it is unconstitutional. The court also applied the Doctrine of
severability in this case. According to this doctrine; if the valid and invalid parts of a statute
can be separated from each other easily without affecting the entire statute; then the court

235
may separate the invalid part alone without declaring the entire Act or legal provision as
unconstitutional. Court held that doctrine of severability is not applicable to strike down para
7 of the 10th schedule alone without affecting the remaining provisions of the constitution;
namely Articles 136, 226 and 227. As para 7 of the 10th schedule excludes the jurisdiction of
Supreme Court and High Court, it brings about change in the operation of Articles 136, 226
and 227 of the constitution. Therefore, an amendment by special majority with ratification of
one half of the States is required. This procedure was not complied with. So, the entire 10th
schedule was held to be constitutionally invalid.

The 'Finality clause' ousting the jurisdiction of courts to challenge the decisions of the
Speaker is not to be taken as absolute. It can still be subject to judicial review under Articles
136, 226 and 227 of the constitution. Because, the Speaker or Chairmen while functioning
under the 10th schedule; exercises judicial power and the act as a Tribunal adjudicating rights
and obligations under 10th schedule and their decisions in that capacity are amenable to
judicial review( it is to be noted that the 10th schedule was added to the constitution by the
52nd amendment in order to curb the evil of defection from the politics of the country).

JUDGEMENT/ DECISION: Para 7 of the 10th schedule is unconstitutional as it completely

ousts the jurisdiction of all courts including Supreme Court over the decisions of the Speaker
pertaining to defection.

Q 40: The Factories Act contained a provision which stated that "floors, steps, stairs,
passages and gangways are to be kept free from obstruction". A factory manager was
charged under the
said provision for dumping raw materials in a corner on the factory floor marked as
"storage corner". Decide.

FACTS: Write down from the question.

ISSUES:[ 1] Whether a storage corner in the factory comes under the same category as "floors,
steps, stairs, passages and gangways”?

[2] Whether the factory owner bound to keep the storage corners of the factory floor obstruction-
free?

[3] Whether dumping of for dumping raw materials in a corner on the factory floor would
amount to violation of the provisions of the Factories Act ?

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 [4] Whether the subsidiary interpretation rule of Noscitur-a- sociis is applicable in this case?

ANALYSIS’REASONING: The rule of Noscitur a sociis is applicable in this case.

Means ‘known by associates’, according to this rule, the true meaning of a word can be
understood from its surrounding words. Every word has two kinds of meanings -actual
'Denotation meaning - that is; its, dictionary meaning and Connotation meaning- that is its
meaning according to its context or in the light of its surroundings .The rule of noscitur-a-
sociis is concerned with the connotation meaning of a word. Just as the character of a person
can be understood or estimated from the characters of his accompanying friends or associates;
the true meaning of a word in a statute can be understood from the words in its vicinity
.Thus, words like chameleons changes its colour according to its surroundings. Facts of the
problem similar to those in the case of * Pengelly vs Bell Punch Co: 1Hd (1964)- Under Sec.
28 of Factories Act, 1961,"Floors, step, stairs and passages and gang ways" are to be kept
free from obstruction. The question was whether 'floors' would include that part of factory
floor used for storage purpose. Applying the rule of noscitur a sociis.,Court held that the word
'floor' derives its true meaning from its associated words- 'steps',’stairs','passages' and
gangways." These four -- places are used for purpose of passage. Therefore, the term 'floor'
does not include that part of the factory floor which is used for storage-purpose.

JUDGEMENT/DECISION- The factory manager not liable under the Factories Act for
dumping raw materials in a corner on the factory floor marked as "storage corner.

Q 41: The Offences Against Persons Act, 1837 of England made it an offence to "stab, cut
or wound" any person. X bit off the finger of Y in the course of an altercation. What is the
liability of X for the Wound inflicted on Y.

FACTS: Write down from the question.

ISSUES: [1] Whether biting off the finger of a person in the course of an altercation would
amount to "stab, cut or wound"under the Offences Against Persons Act, 1837 ?
[2] Whether the subsidiary interpretation rule of Noscitur-a- sociis is applicable in this case?
ANALYSIS/REASONING: The rule of Noscitur a sociis is applicable in this case. Means
‘known by associates’, according to this rule, the true meaning of a word can be
understood from its surrounding words. Every word has two kinds of meanings -actual
'Denotation meaning - that is; its, dictionary meaning and Connotation meaning- that is
its meaning according to its context or in the light of its surroundings .The rule of

237
 noscitur-a- sociis is concerned with the connotation meaning of a word. Just as the
character of a person can be understood or estimated from the characters of his
accompanying friends or associates; the true meaning of a word in a statute can be
understood from the words in its vicinity .Thus, words like chameleons changes its colour
according to its surroundings. Facts of the problem similar to those in the case of *R vs.
Harris(183 6 ) 7 C & P446- Under the Offences against Persons Act, 1837; it was a
felony to "stab, cut or wound" any person. Applying the rule of noscitur a sociis; Court
held that the team "wound" includes only the serious injuries inflicted by means of any
weapon or instrument. Does not include wound inflicted by biting,. Biting off a finger or
nose or burning a face won't come under this section.
JUDGEMENT/DECISION- X is not liable under the Offences Against Persons Act,
1837 for biting off the finger of a Y in the course of an altercation.

Q 42: The Expenditure Tax Act defines 'Dependant' means "his or her spouse or minor
child and includes any person wholly or mainly dependant on the assessee for support and
maintenance". How will you justify when an independent wife claims the benefit under the
Act. Decide.

FACTS: Write down from the

ISSUES: 1] Whether an independent wife of the assessee could claim the benefit under the
Expenditure Tax Act ?

2] Whether an independent wife of the assessee could be considered as a ‘dependent’ to

claim the benefit under the Expenditure Tax Act ?

3] Whether rules of strict construction of taxing statutes applicable in this case?

ANALYSIS/REASONING: Generally, STRICT RULE of interpretation is to be
followed in case of taxing statutes. It covers the certain principles:

 There is no presumption or equity as to tax. If a person comes clearly within

the scope of the charging section of a taxing statute, he must be taxed no
matter however great his hardship may be. Partington vs AG (1869) LR4HL
 A person can be taxed only if the words of the taxing statute clearly, expressly
and unambiguously (without confusion) impose tax-liability upon him. Before
taxing a person, it must be shown that he falls within the ambit of the charging
section by clear words used in that section. There is no implied power to tax.
The power to tax must be express and clear. Russell vs Scot (1948) 2 ALL ERI

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  interpretation which supports double taxation should be avoided as far as
possible. But, if the double taxation is legally maintainable [If it is imposed by
competent authorities through a clear law and does not violate fundamental
rights] then it can be upheld.
 If there is a Casus Omissus (a point missed or not provided by the legislature)
in a taxing statute then the courts should not try to fill in such gaps as it feels
like J. Shirinivas Rao vs Govt of AP (2006) 12 SCC 607.
 Logic or reason is of not much use in the interpretation of taxing statutes For
Eg: Azam Jha vs Expenditure Tax Officer (AIR 1978 SC 2319) then issue
was the interpretation of the word ‘dependent’ under the Expenditure Tax Act.
An assessee was entitled to deduct expenditure of a spouse who; y or mainly
dependent on him. According to words in the Act, ‘Dependent’ means the
assessee's (taxpayer's) spouse, minor child or any person wholly or mainly
dependent on the assessee. The court held that the words wholly or mainly
dependent on the assesse are not applicable to spouse and minor child. Hence,
spouse and minor child can be treated as dependents even if they have separate
income and not actually dependent on the assessee.

JUDGEMENT/DECISION- An independent wife is still considered as a ‘Dependent ‘ of the

assessee under the Expenditure Tax Act . She cannot claim benefit of exemption of her
expenditure from the total expenditure of her husband assesee. Taking a contrary view can
lead to large scale evasion .
Q 43: Section 66(1) of the Central provinces and Berar Municipalities Act, 1922 authorized
the imposition of “a terminal tax on goods and animals imported into or exported from the
limit of the municipality". The municipality want to levy the tax on goods in transit. Advise.

FACTS: Write down from the question.

ISSUES: [1] Whether the decision of the municipality to levy terminal tax on goods in
transit in the course of import and export through the municipality is valid?

[2] Whether the rules of strict construction of taxing statutes to be adopted in this case?
[3] Whether the legislative history behind the Act and the dictionary meaning of the terms
‘import’ and ‘export’ need to be taken into consideration to arrive at the true intention
of the legislature?

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REASONING/ANALYSIS: Generally, STRICT RULE of interpretation is to be followed
in case of taxing statutes. It covers the certain principles:

 There is no presumption or equity as to tax. If a person comes clearly within the scope
of the charging section of a taxing statute, he must be taxed no matter however great
his hardship maybe. Partington vs AG (1869) LR4HL
 A person can be taxed only if the words of the taxing statute clearly, expressly and
unambiguously (without confusion) impose tax-liability upon him. Before taxing a
person, it must be shown that he falls within the ambit of the charging section by clear
words used in that section. There is no implied power to tax. The power to tax must be
express and clear. Russell vs Scot (1948) 2 ALL ERI
 Commissioner of Wealth Tax vs Ellis Bridge Gymkhana (AIR 1998 SC 120) While
interpreting a taxing statute, if an ambiguity occurs that is, if the words of the taxing
statute are open to double meanings one in favour of the taxpayer and one against him,
then that meaning which is favourable to the taxpayer must be adopted.
 If there is a Casus Omissus (a point missed or not provided by the legislature) in a
taxing statute then the courts should not try to fill in such gaps as it feels like J.
Shirinivas Rao vs Govt of AP (2006) 12 SCC 607.

Facts of the problem similar to those in the case of The Central India Spinning and Weaving
Co: vs The Municipal Committee, Wardha[1957] The appellant is a company which has its
spinning and weaving mills at Yeotmal. The appellant's bales of cotton are transported from
Yeotmal to Nagpur by road and vehicles carrying them pass through the limits
of Wardha Municipality. The goods being in transit, the vehicles carrying them do no more
than use the road which traverses the municipal limits of Wardha and is a P.W.D. road. The
goods are neither unloaded nor reloaded at Wardha but are merely carried across through the
municipal area. The Municipal Committee purporting to act under s. 66(1)(0) of the Act and r.
I of the rules made thereunder collected Rs. 240 as terminal tax on these goods on the ground
that they were ex ported by the appellant from the limits of the Municipality of Wardha. The
appellant thereupon claimed a refund of this sum. On refusal by the Municipality the appellant
took an appeal to the Deputy Commissioner, Wardha which was sent for disposal to the Sub-
Divisional Officer, who, on March 11, 1946, referred the following two questions under s.
83(2) of the Berar Municipalities Act to the High Court for its opinion:

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(1)Whether goods passing through the limits of Wardha Municipality by road despatched
from Yeotmal to their destination at Nagpur without being unloaded or reloaded
at Wardha are liable for an export terminal tax ?

(2)Whether the respondent Municipal Committee is not liable to refund the export terminal
tax collect-ed on such goods ?

Court held that the terminal tax under s. 66(1)(o) is not leviable on goods which are in transit
and are only carried across the limits of the Municipality.

The Court analysed the powers of the Berar Municipalities Municipality to impose, assess
and collect taxes are set out in Chapter 9 and s. 66(1) of the Act enumerates the taxes which
may be imposed. Clause (d) of sub-section (1) deals, with tolls; cl. (e) with octroi and cl. (o)
with terminal tax.

Court referred to the Dictionary Meaning of the words 'import' and 'export' is not restricted
to their derivative meaning but bear other connotations also. According to Webster's
International Dictionary the word "import" means to bring in from a foreign or external
source; to introduce from without; especially to bring (wares or merchandise) into a place or
country from a foreign country in the transactions of commerce; opposed to export. Similarly
,"export" according to Webster's International Dictionary means "to carry away; to remove; to
carry or send abroad especially to foreign countries as merchandise or commodities in the
way of commerce; the opposite of import ". The Oxford Dictionary gives a similar meaning to
both these words. The word "transit" in the Oxford Dictionary means the action or fact of
passing across or through; passage or journey from one place or point to another; the passage
or carriage of persons or goods from one place to another ; it also means to pass across or
through (something) to traverse, to cross. Even according to the ordinary meaning of the
words, goods which are in transit or are being transported can hardly be called goods
'imported into or exported from' because they are neither being exported nor imported but are
merely goods carried across a particular stretch of territory or across a particular area with the
object of being transported to their ultimate destination which in the instant case was Nagpur.

Court held that if the respondent municipality’s version of the meaning of the word “export "
was accepted, then tax would be leviable on all goods entering Municipal limits whether
they are intended for consumption within the city or whether they are', merely in transit
through the city to some other place. It would make even rail-borne goods passing through a
railway station within the limits of a Municipality liable to the imposition of the tax on their

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arrival at the railway station or departure therefrom or both which would not only lead to
inconvenience but confusion, and would also result in inordinate delays and unbearable
burden on trade both inter State and intra State. It is hardly likely that that was the intention
of the legislature. Such an interpretation would lead to absurdity which has, according to
the rules of interpretation, to be avoided.

Keeping in view the terms and language and the legislative history of the Section 66(1) of
Berar Municipalities Act Court held that it is not possible to to enlarge the terms of the
section by mere construction so as to include within its operation goods which are in transit
and are being transported across the jurisdictional limits of the Municipality. The Legislature
never intended to impose such additional burdens.

In construing these words of the taxing statute if there are two possible interpretations then
effect is to be given to the one that favours the citizen and not the one that imposes a
burden on him.

Therefore, terminal tax on goods imported or exported is similar in its incidence and is
payable on goods on their journey ending [terminating]within the municipal limits or
commencing therefrom and not where the goods were merely in transit through the municipal
limits and had their terminus elswhere.

JUDGEMENT/DECISION- The terminal tax on goods in transit imposed by the

municipality is invalid. Liable to refund the collected amount to the party.
Q 44: Section 16 (3)(a) (iii) of the Income Tax Act which permit the inclusion in computing
the total Income of the husband, so much of the income of a wife as arises "from asset
transferred to the wife otherwise than for adequate consideration" The authority assessed
the income accrues to the wife from assets transferred to the wife prior to the marriage.
Assessee objects. Decide.

FACTS: Write down from the question.

ISSUES:[ 1] Whether the income accrued to the wife from assets transferred by the
husband to her prior to the marriage could be clubbed with the total Income of the
husband under Section 16 (3)(a) (iii) of the Income Tax Act?

[2] Whether rules of strict construction of taxing statutes applicable in this case?

ANALYSIS’REASONING: Generally, STRICT RULE of interpretation is to be followed

in case of taxing statutes. It covers the certain principles:

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  There is no presumption or equity as to tax. If a person comes clearly within the scope
of the charging section of a taxing statute, he must be taxed no matter however great
his hardship may be. Partington vs AG (1869) LR4HL
 A person can be taxed only if the words of the taxing statute clearly, expressly and
unambiguously (without confusion) impose tax-liability upon him. Before taxing a
person, it must be shown that he falls within the ambit of the charging section by clear
words used in that section. There is no implied power to tax. The power to tax must be
express and clear. Russell vs Scot (1948) 2 ALL ERI
 Commissioner of Wealth Tax vs Ellis Bridge Gymkhana (AIR 1998 SC 120) While
interpreting a taxing statute, if an ambiguity occurs that is, if the words of the taxing
statute are open to double meanings one in favour of the taxpayer and one against him,
then that meaning which is favourable to the taxpayer must be adopted.
 Interpretation which supports double taxation should be avoided as far as possible.
But, if the double taxation is legally maintainable [If it is imposed by competent
authorities through a clear law and does not violate fundamental rights] then it can be
upheld.

If there is a Casus Omissus (a point missed or not provided by the legislature) in a taxing
statute then the courts should not try to fill in such gaps as it feels like - Shirinivas Rao vs
Govt of AP (2006) 12 SCC 607.

As per the clubbing provisions of the Income tax Act, income from assets transferred by a
person to his spouse otherwise than for adequate consideration shall be included in the total
income of the transferor.

Facts of the problem similar to those in the leading case of Philip John Plasket Thomas vs
Commissioner Of Income Tax[ 1964 AIR 587, 1964 SCR (2) 480]. It was held that all
income of the wife from all assets is not includible in the income of her husband. The income
from only those assests of the wife can be included in that of her husband which were
transferred to her by her husband after they became husband and wife. In other words, the
relationship of husband-wife must be subsisting at the time of transferring the asset by the
assessee to his wife. In this case, the court held that income from the dividends received by
the wife from the transfer of a company’s shares to her by the husband after the engagement
but before the marriage could not be included in the total income of the husband under the
clubbing provisions of of the Indian Income-tax Act .

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JUDGEMENT/DECISION- Income that accrues to the wife from assets transferred by
husband to the wife prior to the marriage cannot be included in the total income of the
husband.

Q 45: Section 36(4) of the Industrial Disputes Act 1947 which provides that a party cannot
be represented before the Labour Court, Tribunal or National Tribunal except with the
consent of other parties. An advocate challenges the above provision as it is against the
provisions of Section 30 of the Advocates Act which provide every advocate shall be entitled
to practice before any tribunal. Decide.

FACTS: Write down from the question.

ISSUES:[1] Whether there is clash between Section 36(4) of the Industrial Disputes Act 1947
and Section 30 of the Advocates Act,1961?

[2] Whether Section 36(4) of the Industrial Disputes Act 1947 is a special statute and Section
30 of the Advocates Act,1961 a general statute?

[3] When there is conflict between a general statute and a special statute; which one will
prevail?

[4] Whether the subsidiary rule of interpretation- Generalia specialibus non derogant
applicable in this case

[5] Whether the secondary rule of interpretation- Beneficent construction applicable in this
case?
ANALYSIS/REASONING: Section 30 of the Advocates Act, 1961 (“Advocates Act”)
provides advocates/ legal practitioners the right to practice before any court/tribunal within
the territory of India. People also have a fundamental right to be represented by a legal
counsel of their choice. Section 36(4) of the Industrial Disputes Act,1947(“ID Act”) puts a bar
upon advocates on appearing before authorities (such as the Labour Courts and Tribunals)
mentioned under the Act, without the consent of the opposite side and the permission of the
authority(s) in consideration.
A bare reading of both these provisions seems to present a dilemma wherein S 30, Advocates
Act allows a class of people in question (advocates) to appear before any kind of
court/tribunal whereas S. 36(4), ID Act proscribes them from appearing before a specific type
of court/tribunal. This contradistinction was addressed by the Supreme Court in Paradip Port

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Trust, Paradip and Ors. Vs Their Workmen AIR 1977 SC 36 (“Paradip Port Trust”), where
it was held that The ID Act, being a special legislation, would override the Advocates Act
which is a general law. Court stated that either party in a labour dispute would not be
benefitted by an advocate’s presence during the proceedings. Court said that legal
practitioners should not be a part of conciliation proceedings because they may
overcomplicate the colloquial setting of the dispute resolution mechanism. Held:

“It is reasonable to suppose that the presence of legal practitioners in conciliation may divert
attention to technical pleas and will detract from the informality of the proceedings impeding
smooth and expeditious settlement.”

Court also held that the expertise of legal practitioners may expose the weaker party (the
‘workers’ or the ’employees’) to get pitted against the stronger one (the ’employers’) before
the adjudicating authorities in a battle between the ‘unequals’. This would lead to a derailment
of ‘expeditious’ procedure which would be against the legislative intent behind the Industrial
Disputes Act 1947.

Therefore, court decided that Sec. 36(4) of the ID Act would prevail over S.30 of the
Advocates Act .The court took a stand that the ID Act is special piece of legislation is
accurate. The ID Act (in any context) is a beneficial legislation, enacted to provide
peaceful settlement of disputes and measures for preserving harmonious relations between
the employers and employees. Taking Advocates Act as a General Statute, when viewed from
the perspective of taking the ID act in its entirety (i.e. in the sense of a broad but not selective
interpretation) and the workers/employees as the focal point, the Rule of Beneficial
Construction would mandate the Advocates Act as a general act. The reason for this being
that only a part/section of the ID act deals with the representation of advocates as against the
Advocates Act, in which the community of advocates is in cynosure. The ID Act is the one
whose provision is being challenged here (the primary statute in consideration), so the
community that it deals with i.e. the working class should take the precedence and not the
advocates.

“A later general law will override a prior special law if the two are so repugnant to each other
that they cannot co-exist even though no express provision in that behalf is found in the
general law.”

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Allahabad High Court in I.C.I.India Ltd. Vs. Presiding Officer, Labour Court (IV) and Ors.
1992 LLR 477 to the extent of it labeling S. 36(4) as “clearly arbitrary and violative of
Article14 of the Indian Constitution.”

In ICI India Ltd. vs. Labour Court (IV) and another],1992 - 1 L.L.N. 972 - .Allahabad High
Court declared that the provisions of Sec. 36(4) of the industrial disputes Act 1947 are ultra
vires the constitution. In the matter of M/s Hygenic Foods vs. jasbir Singh Hon. Supreme
Court also prima facie held that Sec. 36 (4) of the Industrial Disputes Act was ultra vires the
constitution. The matter was disposed off keeping the question of vires of sec. 36(4) of
Industrial Disputes Act open

In “The Management Hindustan Motors Vs. Presiding Officer Decided on (20/1/2007)”,

the Hon. Madras High Court held “In the case of the respondents / workmen engaging a
trained reasoned lawyer in the garb of a trade union leader, the writ petitioner Managements
should not be denied the very same right by relying upon Section 36(4) of the I.D. Act.

In Hindustan Organic Chemicals Limited Employees'Union” case, Bombay High Court was
considering the effect of notification relating to Sec. 30 of Advocates Act on Sec. 36 (4 ) of
Industrial Disputes Act 1947.The said case came before the Hon. Court against the orders
passed by lower courts that even after the issuance of the notification making section 30 of the
Advocates Act effective, section 36 ( 4 ) of the Industrial Disputes Act 1947, still held the
field and Advocates were not allowed to appear before the Authorities without the consent of
the other side and permission of the Hon. Court. Hon. High court did not interfere with the
judgment of the lower courts and held that in view of “Paradip Port trust” case, section 36( 4 )
of the Industrial Disputes Act 1947, still held the field, and Advocates are required to have
consent of the opposite side and permission of the Hon. Court to appear before the authorities
under the Industrial Disputes Act 1947.

However, this matter has been finally put to rest recently by the Hon’ble Supreme court in
Thyssen Krupp Industries India Private Limited & Ors.Vs Suresh Maruti Chougule & Ors.[
2023 Livelaw (Sc) 868] where Court upheld and affirmed the decision in Paradip Port Trust
v. Their Workmen, (1977)2 SCC 339] and held that Advocate cannot claim the right of legal
under Industrial Disputes Act, 1947 . There is no ground to revisit or relook a decision which
has prevailed for almost half a century. Court also cited other parts of the decision in The
Paradip Port Trust case as under :

“If, however, a legal practitioner is appointed as an officer of a company or corporation and is

in their pay and under their control and is not a practising advocate the fact that he was earlier

246
a legal practitioner or has a legal degree will not stand in the way of the company or the
corporation being represented by him. Similarly if a legal practitioner is an officer of an
association of employers or of a federation of such associations, then Section 36(4) will not
prevent him from appearing before the tribunal under the provisions of Section 36(2) of the
Act. Again, an office-bearer of a trade union or a member of its executive, even though he is a
legal practitioner, will be entitled to represent the workmen before the tribunal under Section
36(1) in the former capacity. The legal practitioner in the above two cases will appear in the
capacity of an officer of the association in the case of an employer and in the capacity of an
office-bearer of the union in the case of workmen and not in the capacity of a legal
practitioner.

Industrial Disputes Act is a special piece of legislation with the avowed aim of labour welfare
and representation before adjudicatory authorities therein has been specifically provided for
with a clear object in view. This special Actwill prevail over the Advocates Act which is a
general piece of legislation with regard to the subject-matter of appearance of lawyers before
all courts, tribunals and other authorities. The Industrial Disputes Act is concerned with
representation by legal practitioners under certain conditions only before the authorities
mentioned under the Act. Applied the rule of Generalia specialibus non derogant. Quoting
Maxwell :

“Having already given its attention to the particular subject and provided for it, the legislature
is reasonably presumed not to intend to alter that special provision by a subsequent general
enactment unless that intention be manifested in explicit language or there be something in
the nature of the general one making it unlikely that an exception was intended as regards the
special Act. In the absence of these conditions, the general statute is read as silently excluding
from its operation the cases which have been provided for by the special one. “(Maxwell on
Interpretation of Statutes, 11th Edition, page 169).

Court held that the matter is not to be reviewed from the point of view of the legal practitioner
but from the aspect of the employer and workmen who are the principal contestants in an
industrial dispute as observed in the aforesaid judgment.

JUDGEMENT/DECISION- The advocate cannot claim a right to appear and practice before
an Industrial tribunal. Section 36(4) of the Industrial Disputes Act 1947 is a special statute
and has overriding effect over Section 30 of the Advocates Act, 1961 which is a general
statute.

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 SYLLABUS

5 YEAR BBA LLB (Hons)

Legislation - meaning - how made - parts of statute - long title, short title - preamble -
definition - section, proviso - schedule - marginal notes comment renewal of legislation -
repeal.

Interpretation - meaning and scope - rules of interpretation -legislative intent - literal rule,
golden rule, mischief rule – technical interpretation.

External and internal aids in construing a statute – beneficial construction - prevention of

abuse and evasion.

Presumptions and assumptions - jurisdiction - repealing -constitutionality of statutes -

retrospective operation.

Equitable construction - strict construction of penal laws - mandatory and directory provisions
- construction of words - maxims.

Principles of legislation-Bentham

Reference:

P.S. Langan Maxwell on the Interpretation of Statutes, N.M.Tripathi Pvt. Ltd., Bombay.

F.A.R. Benion, Statutory Interpretation: A Code, Butterworths.

G.P. Singh, Principles of Statutory Interpretation, Wadhwa & Co., Nagpur.

J. Bentham, The Theory of Legislation, N.M. Tripathi, Bombay, pp.1 - 52

3 YEAR – LLB (UNITARY)

Unit 1- Introduction: Interpretation - Meaning, Objects and Scope of – Difference

between interpretation and construction – Statutes – Nature and Kinds - Commencement,
operation and repeal of statutes - Purpose of interpretation of statutes - Basic Sources of
Statutory Interpretation - The General Clauses Act, 1897: Nature, Scope and Relevance
(Ss.6- 8) – Aids to Interpretation: Internal aids and External Aids.

248
 Unit II - Rules of Statutory Interpretation and Presumptions in statutory interpretation:
Primary Rules – Literal rule, Golden rule, Mischief rule (rule in the Heydon's case), Rule
of harmonious construction – Secondary Rules: Noscitur a sociis, Ejusdem generis,
Reddendo singula singulis – Presumptions: Statutes are valid, Statutes are territorial in
operation, Presumption as to jurisdiction, Presumption against what is inconvenient or
absurd, Presumption against intending injustice, Presumption against impairing
obligations or permitting advantage from one's own wrong, Prospective operation of
statutes. Interpretation with reference to the subject matter and purpose: Restrictive and
beneficial construction, Interpretation of – Taxing statutes, Penal statutes, Welfare
legislations, substantive and procedural statutes, directory and mandatory provisions,
enabling statutes, codifying and consolidating statutes, statutes conferring rights, statutes
conferring powers, Statutes affecting the state, Statutes affecting the jurisdiction of courts

Unit III - Maxims of Statutory Interpretation: Maxims – Delegatus non potest delegare,
Expressio unius exclusio alterius, Generalia specialibus non derogant, In pari delicto
potior est conditio possidentis, Ut res magis valeat quam pereat, Expressum facit cessare
tacitum, In bonam partem

Unit IV Interpretation of the Constitution: Rule of Harmonious construction, Doctrine of

pith and substance, Colourable legislation, Ancillary powers, Occupied field, Residuary
power, Doctrine of repugnancy

Unit V Principles of Legislation: Law-making - the legislature, executive and the

judiciary - Principle of utility - Relevance of John Rawls and Robert Nozick - individual
interest to community interest - Operation of these principles upon legislation -
Distinction between morals and legislation

Suggested Readings:

P. St. J. Langan -Maxwell on the Interpretation of Statutes Vepa P. Sarathi -

Interpretation of Statutes

G.P. Singh - Principles of Statutory Interpretation Bentham - Theory of Legislation

Bakshi - Legislation

Brown - Underlying Principles of Modern Legislations

249
Dr. Nirmal Khanthi Chakravarthi – Principles of Legislation and Legislative Drafting

S.G.G. Edgar -Craies on Statute Law

Swarup Jagadish -Legislation and Interpretation K.Shanmukham -N.S.Bindra’s

Interpretation of Statutes M.P.Jain -Constitutional Law of India

M.P.Singh, (Ed.) - V.N.Shukla: Constitution of India

U.Baxi -Introduction to Justice K.K.Mathews, Democracy Equality and freedom

P.K. Tripathi -Spotlight on Constitutional Interpretation

M.P. Tandon -Interpretation of Statutes

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