Presumptions in Statutory

Interpretation : Presumption as
to Jurisdiction;
Presumption as to Prospective
Operation of Statutes;
Presumption Against
Violation of International Law.
 • PRESUMPTIONS
AS TO
JURISDICTION OF THE COURT
• PRESUMPTION IN FAVOUR OF CONSTITUTIONALITY OF ENACTMENT
• LEGISLATURE DOES NOT COMMIT MISTAKES
• STATUTES ARE PRESUMED TO BE IN CONFIRMITY WITH INTERNATIONAL LAWS.
• PRESUMPTIONS IN FAVOUR OF NATURAL JUSTICE
• EXCLUSION OF CIVIL COURT JURISDICTION
• STATE IS BOUND BY STATUTES
• There is a presumption in favour of the constitutionality of an Act. One who
alleges against the constitutionality of an enactment, must show that, there is a
transgression of the constitutional boundaries.
• When the validity of the statute made by the competent legislature is challenged,
the Court must presume that the statute is valid.
• If there is any doubt about the constitutional validity of any law, the benefit of
doubt should be in favour of the constitutional validity of the Act.
• It is presumed that the legislature has expressed its intention in appropriate
words. Every word used by the legislature, must be given its due importance.
• This rule is also applicable to bye-laws and constitutional amendments Acts
• When any enactment cannot be saved by construing it to be consistent with its
constitutionality, then it is to be seen whether it can be saved partly. When a part
of the Act is inconsistent with the higher law in the Constitution, then it can be
saved partly, if the test of severability is satisfied.
• Jurisdiction of Court
• The term „jurisdiction‟ means the power or authority of a court to hear, try and
determine a cause and to adjudicate upon it. It is the Legislature that confers the
jurisdiction upon a court. The jurisdiction may be :-
• (i) Territorial Jurisdiction
• Territorial jurisdiction means jurisdiction with reference to place. A court may exercise
its powers within defined territorial limits. For example, the High Court of Judicature at
Bombay has territorial jurisdiction in the State of Maharashtra and Goa.
• (ii) Pecuniary Jurisdiction
• Pecuniary jurisdiction means jurisdiction relating to value. The court may be competent
to take cognizance of a subject matter of a restricted value. For example, the Court of
Civil Judge, Junior Division in the State of Maharashtra is competent to try the suits
having value up to Rs. Five Lakh.
• (iii) Subject-matter Jurisdiction
• Jurisdiction of the subject-matter means the court may be competent to deal with
matters of a specified kind. For example, the Family Courts have jurisdiction in relation
• In Harskad Chiman Lai Modi v. DLF Universal Limited, 2005 (7) SCC 791.8 the
Supreme Court clearly defined the kinds of jurisdiction and its significance. It was
held that the jurisdiction of a court may be classified into several categories. The
important categories are
• (i) territorial or local jurisdiction;
• (ii) pecuniary jurisdiction;
• (iii) jurisdiction over the subject matter.
• Exclusion of Jurisdiction or Ouster of Jurisdiction
• The jurisdiction is granted to a court by the Legislature. The Legislature only can
withdraw the jurisdiction of a court. Thus, the Legislature is competent to curtail
the jurisdiction of civil court and to confer the same on any other Tribunal or
Authority. When the Legislature seeks to revoke the jurisdiction of a civil court,
the result is that the civil court cannot hear and try .the disputes relating to that
subject matter. This is termed as „exclusion of jurisdiction‟ or „ouster of
jurisdiction‟.
• The effect of exclusion of jurisdiction is that the matters which were so far being
tried by the civil court are no more maintainable before it. New disputes cannot
be filed before the civil court involving that subject matter. However, only original
jurisdiction may be ousted.
• The exclusion of jurisdiction of civil court may be either express or implied.
• Exclusion of Jurisdiction not to be Readily Inferred
• The court is deemed to have jurisdiction unless otherwise is proved beyond
doubt. The ouster of jurisdiction of a court is not readily accepted. There is a
strong presumption against ouster of jurisdiction of a civil court. Since jurisdiction
is conferred upon a court by the Legislature, it is only the Legislature which can
take away the jurisdiction of a court.
• The jurisdiction vesting in a court cannot be taken away by mutual consent of
contesting parties. Similarly, the jurisdiction not vested in a court, cannot be
granted to it by an agreement arrived at between the parties to a dispute. The
rival parties can neither remove the jurisdiction vesting in a court nor grant a
jurisdiction to a court which such court does not enjoy.
• In the absence of clear intention of Legislature, the court cannot be deprived of
its jurisdiction. If a statute seeks to exclude the ordinary jurisdiction of a civil
court, it must do so by express terms. The legislative intent of removal of
jurisdiction should be expressed in unequivocal terms. The jurisdiction of court
cannot be taken away by putting a particular construction upon an Act of the
Legislature. When the language is doubtful, the Courts will lean against such
construction which would lead to ouster of the jurisdiction of the court.
• There is a strong presumption that civil courts have jurisdiction to decide all
questions of civil nature. Hence, exclusion of jurisdiction of civil courts should not
be hastily referred.
• Existence of jurisdiction in civil courts to decide questions of civil nature is a
general rule but the exclusion of jurisdiction is an exception. Burden of proof to
show that jurisdiction is excluded in a particular case is on the party raising such
contention.
• Where legislative intent is plain and oust of jurisdiction is categorical, then rule
against exclusion of urisdiction has no role to play. It is thus clear that:-
(i) Jurisdiction is conferred by Legislature and as such, it may be revoked by
Legislature only. Neither jurisdiction can be granted nor can jurisdiction be taken
away by an agreement between contesting parties.
(ii) There is a strong presumption against ouster of jurisdiction of a civil court. The
court is deemed to have jurisdiction unless otherwise proved beyond doubt.
(iii) If a statute seeks to exclude the ordinary jurisdiction of a civil court, it must do
so by express terms. In the absence, of clear words, the exclusion of jurisdiction is
not readily inferred.
In Bhatia International v. Bulk Trading SA. (2002) 4 SCC 105 : AIR 2002 SC 1432, it
was held that while examining a particular provision of a statute to find out
whether the jurisdiction of a court is ousted or not, the principle of universal
application is that ordinarily the jurisdiction may not be ousted unless the very
statutory provision explicitly indicates or even by inferential conclusion the court
arrives at the same when such a conclusion is the only conclusion.
• Principles Relating to Exclusion of Jurisdiction
Hidayatullah, C.J., has summarized certain principles relating to exclusion of
jurisdiction of civil court in Dhulabhai v. State of Madhya Pradesh, AIR1969 SC 78.
(i) Where statute gives finality to the orders of the special tribunals, the civil
court's jurisdiction must be held to be excluded if there is adequate remedy to
do what the civil courts would normally do in a suit. Such provision, however,
does not exclude those cases where the provision of the particular Act have
not been complied with or the statutory tribunal has not acted in conformity
with fundamental principles of judicial procedure.
(ii) (ii) Where there is an express bar of the jurisdiction of the court, an
examination of the scheme of the particular act to find the adequacy or the
sufficiency of remedies provided may be relevant but is not decisive to sustain
the jurisdiction of the civil court.
(iii) Challenge to the provisions of the particular Act as ultra vires cannot be
brought before tribunals constituted under that Act. Even the High Court cannot go
into that question on a revision or reference from the decision of the tribunals.
(iv) When a provision is already declared unconstitutional or constitutionality of
any provision is to be challenged, a suit is open. A writ of certiorari may include a
direction for refund if the claim is clearly within the time prescribed by Limitation
Act but it is not a compulsory remedy to replace a suit.
(v) Where particular Act contains no machinery for refund of tax collected in excess
of constitutional limits or illegally collected, a suit lies.
(vi) Questions of correctness of the assessment apart from its constitutionality are
for the decision of the authorities and a civil suit does not lie if the orders of
authorities are declared to be final or there is an express prohibition in the
particular Act. In either case, scheme of the particular case must be examined
because it is a relevant inquiry.
(vii) An exclusion of the jurisdiction of the Civil Court is not readily to be interred
unless the conditions above set down apply.
• Presumption against Ouster of Established Jurisdictions, Creation of New Jurisdictions
and Enlargement of Existing Jurisdictions of Courts : Judicial Analysis
• Since jurisdiction is bestowed in a court by a legislation, legislation alone can take away
the same. The parties to a dispute can neither create by mutual consent jurisdiction of
court to try their dispute nor can they take it away by mutual consent if in fact a court is
vested with jurisdiction in the matter. Mutual consent of the parties, however, can
create an arbitrator and the arbitrator may be a judge also.
• The exclusion of the jurisdiction of the civil courts is not to be readily inferred; such
exclusion must either be explicitly expressed or clearly implied. Even in those cases
where the jurisdiction is excluded, the civil courts may examine as to whether the
provisions of statute have been complied with or whether the statutory tribunal has
followed the prescribed procedure under law.
• Non-compliance of the statutory provisions or the judicial procedure is challengeable in
a court of law. The basis of such a principle is that the law presumes that a remedy in
the ordinary civil courts must always be available to a citizen unless a contrary intention
unmistakably appears from the terms of a statute. The ordinary remedy must still be
available even if certain other remedies have been provided by the statute itself except
when it has been excluded by express language or necessary implication.
• Presumption against of Violation of International Law : Judicial Analysis
• A statute will not be so interpreted generally as to be inconsistent with
established rules of international law or the comity of nations. While interpreting
a municipal law if the court feels that it is in conflict with International law, the
court will try not to give effect to such an interpretation, as far as possible. But if
the language of the statute is clear and unambiguous, the court has no option but
to construe it in its normal sense even though such an Interpretation clashes with
international law.
• The basis of the presumption against conflict with international law seems to be
that the legislature of a nation has a limited ambit as compared to the sphere of
international law.
• If there is more than one possible reasonable construction of a statute one of
which is in consonance with international law, the court will generally be inclined
to accept that construction unless there are compelling reasons to interpret
otherwise.
• A reference to Article 51 (c) of the Constitution can be made here according to
which the “State shall endeavour to foster respect for international law and treaty
obligations in the dealings of organized people with one another”.
• Judicial Analysis
• In Kesavananda Bharathi v. State of Kerala,37 Sikri, C. J., of the Supreme Court
observed that according to Article 51 of the Constitution the State shall
endeavour to, inter alia, foster respect for international law and treaty obligations
in the dealings of organized peoples with one another.
• Consequently, according to this directive principle under Article 51, the court
must interpret the language of the Constitution, if not intractable, which is after a
municipal law, in the light of the United Nations‟ Charter and the solemn
declaration subscribed to by India.
• Articles 8 and 9 of the Universal Declaration of Human Rights according to which
„everyone has the right to an effective remedy by the competent national
tribunals for acts violating the fundamental rights granted to him by the
Constitution or by law‟, were binding on India since resolutions on these were
passed by the United Nations on the basis of support from many countries
including India.
• In A.D.M. Jabalpur v. Shiv Kant Shukla, the dissenting judge Khanna J., of the
Supreme Court, while considering whether a writ of habeas corpus would lie
during emergency under the Maintenance of Internal Security Act, forcefully
advocated the desirability of taking help from international law while determining
questions under the municipal law.
• He observed that the International Commission of Jurists which is affiliated to the
UNESCO has been attempting with considerable success to give material content
to the Rule of Law, an expression used in the Universal Declaration of Human
Rights. Respect for the supreme value of human personality was stated to be the
basis of all laws.
• Every statute, according to this rule, is interpreted, so far as its language permits,
so as not to be inconsistent with the comity of nations or the established rules of
municipal law and the court will avoid a construction which would give rise to
such inconsistency unless compelled to adopt it by plain and unambiguous
language. But if the language of the statute is clear, it must be followed
notwithstanding the conflict between municipal law and international law which
results.
• In Maneka Gandhi v. Union of India, the Supreme court while holding that the
freedom of speech and expression guaranteed by Article 19 (1) (a) of the
Constitution is not restricted to the territory of India was in fact taking reference
from Article 13 of the Universal Declaration of Human Rights which declares that
the freedom of expression and opinion is available to all regardless of frontiers.
• In Nilabati Behera v. State of Orissa, the Supreme Court held that in case of
infringement of the fundamental right guaranteed by Article 21 of the
Constitution, damages can be granted under Articles 32 and 226 of the
Constitution. While thus holding the Supreme Court made reference to Article 9
(5) of the International Covenant on Civil and Political Rights, 1966.
• Again, in Peoples Union for Civil Liberties v. Union of India, the Supreme Court
referred to Article 12 of the Universal Declaration of Human Rights, 1948 and
Article 17 of the International Covenant on Civil and Political rights, 1966 while
putting severe restrictions on the government‟s right to tap telephones
permitted under Section 5 (2) of the Indian Telegraph Act, 1885.
• Similarly, in the celebrated case of Vishakha v. State of Rajasthan, while
interpreting Articles 14, 15, 19 and 21 of the Constitution the Supreme Court
issued extensive guidelines to prevent sexual harassment of women at work
places in consonance with Articles 11 and 24 of the Convention on the
Elimination of All Forms of Discrimination Against Women as well as the general
recommendations 22, 23 and 24 contained therein.
• In People’s Union for Civil Liberties v. Union of India, the question before the
Court was as to whether a retired police officer who had been the Director of
Central Bureau of Investigation and Vice-President (Asia) of Interpol could
become a member of the National Human Rights Commission under Section 3(2)
(d) of the Protection of Human Rights Act, 1994 for being a person having
knowledge of or practical experience in matters relating to human rights.
• Holding that his appointment was good in law the Supreme Court held that the
field in relation to the Constitution of the National Human Rights Commission is
covered by an Act of the Indian Parliament and neither the Paris Principles nor
the U.N. General Assembly Resolution can override the express provisions of the
Act.
• Presumption against Extra-Territorial Operation of Statute
• The Presumption in the United Kingdom is that an Act of Parliament generally
applies within its territory only unless provided otherwise. Provision may,
however, be made in a statute that the statute applies to all subjects of the
United Kingdom whether living within its territory or abroad.
• Similarly, foreigners who stay in the United Kingdom are subject to jurisdiction of
the English courts. There may be clearly stated exceptional situations in a statute
wherein foreigners living abroad may also be subject to the English jurisdiction.
The general principle of private international law is that land is subject exclusively
to the laws of the State within whose territory it lies, the nationality, residence
and domicile of the owner of the land being all irrelevant.
• In India, as in the United Kingdom, the general presumption is against extra-
territorial operation of statutes. But that does not bind the Parliament to legislate
only in its territory, Article 245 (2) of the Constitution of India clearly states that
no law made by Parliament shall be deemed to be invalid on the ground that it
would have extra-territorial operation. Since international law recognizes that a
nation may legislate for all its subjects and to all things and acts within its
territory including its ships and aircraft wherever they may be, and that the
foreigners may be subject to the laws of the nation on whose territory they stay,
similar laws may be passed by nations.
• The Indian Penal Code follows this principle. Section 3 of the Code says that „any
person liable, by any Indian law, to be tried for an offence committed beyond
Indian shall be dealt with according to the provisions of this Code for any act
committed beyond India in the same manner as if such act had been committed
within India‟. Section 4 states that the provisions of this Code apply also to „any
offence committed by (1) any citizen of India in any place without and beyond
India; (2) any person on any ship or aircraft registered in India wherever it may
be‟.
• The words „extra-territorial operation‟ are used in two different senses as
connoting first, laws in respect of acts or events which take place inside the State
but have operation outside, and second, laws with reference to the nationals of a
State in respect of their acts outside; in its former sense, the laws are strictly
speaking „intra-territorial‟ though loosely termed „extra-territorial‟ and under
Article 245 (1) it is within the competence of the Parliament and the State
legislatures to enact laws with „extra-territorial operation‟ in that State.
• The laws with „extra-territorial operation‟ in Article 245 (2) must be understood
in their strict sense as having reference to the laws of a State for their nationals in
respect of acts done outside the State. Otherwise, the provision would be
redundant as regards legislation by Parliament and inconsistent as regards laws
enacted by States.
• The term “prospective” with reference to statutes refers to the application of laws in the
future or from the date of commencement of the statute, as indicated by its dictionary
meaning. In the Indian context, the Doctrine of Prospective Overruling was first introduced
by the Supreme Court in the case of I.C. Golak Nath v. State of Punjab (A.I.R. 1967 SC
1643). In this case, the Supreme Court held that the Parliament did not have the power to
amend fundamental rights.
• Chief Justice Subba Rao raised the question of how Parliament, even with a two-thirds
majority, could abrogate a fundamental right if it could not affect fundamental rights
through ordinary legislation, even unanimously. He argued that the term “law” in Article
13(2) of the Constitution includes both ordinary law and constitutional law, encompassing
amendments as well.
• Therefore, according to the court’s interpretation, the state was not authorized to make
any constitutional amendment that would curtail or diminish fundamental rights. The court
declared that this principle would only apply prospectively, meaning it would have no
retrospective effect. This concept came to be known as “prospective overruling.”
• As a result of this decision, all amendments made to the fundamental rights prior to the
court’s ruling remained valid and effective. However, after the date of the decision, the
Parliament would no longer have the power to amend any of the fundamental rights
enshrined in Part III of the Constitution.
• Penal statutes generally have prospective operation and Article 20 of the
Constitution of India restricts the retrospective operation of such statutes.
According to Article 20, an act that was legal when it was committed cannot be
made illegal by the enactment of a new statute.
• In the case of Gramma v. Veerupana, it was observed that Section 8 of “The Hindu
Succession Act, 1956” applies to the devolution of property of a Hindu male who
dies intestate. The Supreme Court ruled that the Act is not applicable to successions
that occurred before the Act came into operation, which means it has only
prospective operation. In other words, the Act does not have retroactive effect on
successions that took place prior to 1956.
• In the case of Govind Das v. Income Tax Officer, the Supreme Court considered
Section 171(6) of the Income Tax Act, 1961. This provision imposes joint and several
liability on the members of a Hindu Undivided Family (HUF) to pay tax assessed on
the HUF property in case a partition has taken place. The court held that Section
171(6) of the Income Tax Act, 1961 does not apply to assessments made before 1st
April 1962, which was the date the Act came into force. Therefore, the provision has
only prospective operation and does not apply retrospectively to assessments made
• Exceptions to Prospective Operation of Statutes
• Procedural statutes, also known as adjunctive statutes, do not establish or confer new rights.
They pertain to procedural matters and are generally presumed to have retrospective operation,
meaning they can apply to matters that occurred before the enactment of the statute.
• Retrospective operation means that a statute can have an effect on events or circumstances that
took place prior to its enactment. A statute can be explicitly declared as retrospective or implied
as such by the court. However, the retrospective application should not impair existing rights or
obligations.
• If a statute allows for two interpretations, one retrospective and the other perspective, the
prospective interpretation is usually preferred based on the presumption that the legislature did
not intend to create injustice. Generally, statutes are expected to apply to acts or circumstances
that occurred after their enactment, unless there is clear legislative intent to apply them
retrospectively.
• Amendments to procedural laws typically have a retrospective effect. Declaratory acts, which
clarify the meaning and effect of a statute, are also given retrospective operation. Such acts aim
to rectify judicial errors and remove doubts.
• The presumption against the retrospective operation of statutes is rebuttable, meaning it can be
challenged with strong contrary evidence. Courts should not give a statute a greater
retrospective effect than intended by the legislature.
• In cases where a court declares an act void, the parliament has the power to pass
a validating act with retrospective effect to revive the void act. However, penal
laws generally cannot have a retrospective operation unless expressly allowed by
Article 20(1) of the Indian Constitution. If a retroactive application of a penal law
benefits the accused, it may be allowed.
• In Balumar Jamnadas Batra v. State of Maharashtra, the Supreme Court held
that Section 123 of the Customs Act, 1962, which dealt with the burden of proof,
pertained to procedural matters and thus had a retrospective operation
• In Reliance Jute and Industries Limited v. Commissioner of Income Tax, the
Supreme Court stated that while interpreting taxing statutes, the law in force
during the relevant assessment year should be applied unless there is an express
provision or clear intention suggesting otherwise.