Question 1: Explain the literal rule of interpretation with

the help of decided cases.

Ans: Introduction: The term “interpretation” comes from the Latin word “interpretari,” which
means “to explain” or “to comprehend.” Every law must be interpreted by the judge in the way
that it was intended. The aim of interpretation is to determine what the statute stands for, what the
aw it seeks to correct, and what solution it seeks to promote. The fundamental rule in drafting
laws is that the words must be read and interpreted in their literal context. The judges’ rst rule is
the Literal Rule. Some jurists refer to the literal rule as the grammatical rule.

The plain meaning rule, also known as the literal rule, is one of three rules of statutory
construction traditionally applied by English courts. The literal rule requires a judge to interpret
what the law states “actually,” that is, in its plainest form. The meaning of the law-givers is said to
be better expressed by the words themselves. The mechanism by which the courts attempt to
determine the Legislature’s purpose through the medium of the authoritative form in which it is
articulated is known as interpretation or construction.

The law must be considered in its entirety under the literal rule of interpretation, and judges
cannot go beyond “litera legis.” The literal meaning is a method of determining the statute’s “ratio
legis.”

Literal Rule Interpretation:

The cardinal rule in interpreting statutes is to interpret them literally and grammatically, giving
words their usual and natural meaning. The Plain Meaning Rule is another name for this rule.
Examining the vocabulary and literal sense of the law is the rst and most important step in the
interpretation process.

The words in the legislation have their very own natural in uence, and the structure of an act is
determined by how they are written. In the construction of laws and their interpretation, there
should be no additions or substitutions of terms.

The most important rule is to view words in their natural context. The de nitions of the words
should be clear in this rule, and only one interpretation can be deduced.

De nition: Lord Atkinson: In the construction of statutes their words must be interpreted in their
ordinary grammatical sense unless there is something in the context or in the object of the statute
in which they occur or in the circumstances in which they are used to show that they were used in
a special sense di erent from their ordinary grammatical sense.

Legislators also provide “de nitions” sections within statutes to prevent ambiguity. These sections
speci cally describe the most relevant words used in the legislation. However, some laws do not
have a de nitions section at all, or (quite generally) fail to describe a phrase.

The plain meaning rule is intended to direct courts when they are faced with a dispute over the
meaning of a phrase not speci ed by the law or a word contained within a de nition.

The rst and most basic rule of construction is that terms and phrases in technical legislation are
assumed to be used in their technical context if they have one, and in their ordinary meaning
otherwise, and the second is that phrases and sentences are to be construed according to
grammar laws.

A statute’s terms must be granted their ordinary sense prima facie. If the statute’s terms are
precise and unambiguous in themselves, nothing more can be done than to explain them in their
normal and ordinary context.
It is a basic concept of statute creation that the de nitions must be read literally. The courts are
required to interpret the terms as the legislature intended them to be understood.
fl
fi
fi
fi
fi
ff
fi
fi
fi
fl
fi
fi
fi
fi
 Conditions:

1. A term’s special meaning can be given by statute, which is generally found in the
interpretation section.

2. If the law does not specify otherwise, technical terms are provided their ordinary technical
de nition.

3. By implication, no words would be added.

4. In the course of time, the sense of words changes.

5. It’s important to note that the meaning of words is determined by their context.

It was once observed by Lord Diplock “where the meaning of the statutory words is plain and
unambiguous it is not then for the judges to invent the fancied ambiguities as an excuse for failing
to give e ect to its plain meaning because they consider the consequences for doing so would be
inexpedient or even unjust or immoral.”

Rules:

1. Noscitur A Sociis: The meaning of the rule “noscitur a sociis” is de ned by: Privy Council: “it is
a legitimate rule of construction to construe words in an act of Parliament with reference to the
words found in immediate connection with them.”

Justice Gajendragadhkar: “This rule according to Maxwell means that when two or more
words which are susceptible of analogous meaning are coupled together, they are understood
to be used in their cognate sense. They take as it were their colour form each other i.e. the
more general is restricted to a sense analogous to a less general.”

‘It’s important to remember that noscitur a sociis is merely a construction law, and it won’t
apply in cases where it’s obvious that the broader terms were intentionally used to expand the
meaning of the given term. The current rule of construction can be usefully extended only
when the legislature’s purpose in associating broader terms with words of narrower meaning
is questionable or otherwise unclear.

2. Casus Omissus: This rule states that an error in law cannot be remedied by judicial
construction and, in general, cannot be remedied by interpretation. The court’s only power is
to correct factual errors in the statute’s terms and phrases, as well as the legislature’s
meaning. The court tends to read the statute based on the language used rather than inserting
a new phrase.

It is an extension of the same principle that the court cannot provide for a matter that should
have been provided for in a statute because doing so would be law rather than construction.
However, no assumption exists that this rule exists, and the wording allowing the court to do
so should be avoided.

3. Ejusdem Generis: When general terms follow speci c words that belong to the same class or
group, the general words must be interpreted in light of the speci c words. It denotes a similar
nature or form. The terms of law must be interpreted in context, particularly when they are
used in a summarizing or exhaustive manner, according to this concept. If there is some
uncertainty, the term must be understood in light of the terms that came before it.

4. Expressio Unius Est Excusio Alterius: Whenever a person or thing is speci cally included,
another one is explicitly excluded. There is no room for enforcing the rule in which the
legislative terminology is explicit and the meaning is clear. If a term or expression has two
possible meanings, mentioning one of them in a similar manner automatically eliminates the
other. However it is not appropriate to treat this rule as an obligatory rule of law, it may be
used to indicate the Legislature’s goal or purpose.
fi
ff
fi
fi
fi
fi
Criticism and Limitations of Literal Rule of Interpretation:

1. Ambiguity: When a word or phrase used in a statute has several meanings, it is unclear which
particular meaning it represents in which sense or context in such a situation ambiguity arises.
To determine the scope of the statute, the court would have to go beyond the statute while
remaining true to its literal language.

2. Injustice: The words are meaningless without the context in which they are used. Blind
obedience to this rule may result in injustice and, on occasion, there might be consequences
that are very contrary to the statute’s general purpose or common sense.

3. Incompleteness: It indicates that the law contains a gap or omission that prevents it from
conveying a full concept, or that it is logically incomplete. In such cases, the court has the
responsibility to make up for the defect by adding or changing something, but it is not
permitted to do more. It’s only legal if the statutes are inapplicable in their current, incomplete
form.

4. Absurdity: Often the court will interpret a statute in a way that the legislature never intended.

5. Restriction on courts: The conventional rule of literal interpretation prohibits the court from
assigning any context other than the obvious. It e ectively shuts down all judicial creativity.

6. Not suitable for changing times: The laws cannot be read in accordance with the ordinary
sense of terms made long ago due to changes in policies and regulations.

7. Erroneous Assumption of words: The mistaken belief that words have a xed meaning is
emphasized by the law. In reality, words are imprecise, leading judges to apply their own
biases to interpret statutes.

Conclusion:

The primary rule is the literal rule of interpretation. Courts view statutes in a literal and ordinary
way under this law of interpretation. They apply a universal interpretation of the statute’s terms.
The court is required to use the grammatical sense.

The statutes should be interpreted as though there were no other interpretation than the literal
meaning. It’s an age-old and well-established law of interpretation. It is used not only in England,
but also in India, where it originated. Courts must keep a few things in mind when interpreting
statutes.

It must understand that a clause is only vague if it includes a word or expression that has several
meanings. It is unclear if the interpretation is susceptible to di erent interpretations in one
context, but it is plain if it is susceptible to di erent meanings in di erent contexts.
ff
ff
ff
ff
fi
 Question 2: Explain the Golden Rule w decided cases.
Ans: Introduction: Interpretation is the method by which the true sense or the meaning of the word
is understood. The meaning of an ordinary word of the English language is not a question of law.
The proper construction of a statute is a question of law. The purpose of the interpretation of the
statute is to unlock the locks put by the legislature. For such unlocking, keys are to be found out.
These keys may be termed as aids for interpretation and principles of interpretation.

De nition:

Gary: 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 conventional way of interpreting a statute is to seek the intention of its makers, facts of the
case at hand. An interpretation of the statutory provision which defeats the intent and purpose for
which the statute was enacted should be avoided.

Badsha Mia v. Rajjab Ali:

The primary object in interpreting a statute is always to discover the intention of the legislature
and in England, the rules of interpretation, developed there, can be relied on to aid the discovery
because those whose task is to put the intention of the legislature into language, fashion their
language with those very rules in view.

Since framers of statutes couch the enactments in accordance with the same rules as the judicial
interpreter applies, application of those rules in the analysis of a statute naturally brings up the
intended meaning to the surface. It is at least doubtful whether, in a case of framers of Indian
statutes of the present times, especially of the provincial legislature, the same assumption can
always be made.

Interpretation is of two kinds – grammatical and logical. Grammatical interpretation is arrived at by

reference to the laws of speech to the words used in the statute; in other words, it regards only
the verbal expression of the legislature.

Logical interpretation gives e ect to the intention of the legislature by taking into account other
circumstances permissible according to the rules settled in this behalf. ‘Proper construction’ is
not satis ed by taking the words as if they were self-contained phrases. So considered, the words
do not yield the meaning of a statute.

According to Gray, grammatical interpretation is the application to a statute of the laws of speech;
logical interpretation calls for the comparison of the statute with other statutes and with the whole
system of law, and for the consideration of the time and circumstances in which the statute was
passed. It is the duty of the judicature to ascertain the true legal meaning of the words used by
the legislature.

Becke v. Smith:

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 modi ed 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
adherence to their literal meaning.

Rules of Interpretation: Golden Rule:

The golden rule of interpretation is a modi cation of the literal rule of interpretation. Where the
fi
fi
ff
fi
fi
 literal rule lays emphasis on the literal meaning of the words used in legal language, the golden
rule interprets the words in such a way that the absurdities and anomalies of literal interpretation
are avoided. The golden rule modi es the language as well as the grammar of the words used in
statutes and other documents of interpretation, thus providing the actual meaning of the words. It
brings forth the context in which the words have been used in a particular stance.

It must be kept in mind that the golden rule of interpretation can only be used when there is no
correct grammatical construction possible. The legal language is sometimes composed of such
words that do not provide a noticeable meaning, and to determine the latent meaning the golden
rule is used. The judges of the courts must be aware of the consequences of interpreting the
statutes using the golden rule, and it must only be used where it is absolutely necessary.

New India Sugar Mills Ltd. v. Commissioner of Income Tax, Bihar:

The Supreme Court held that the enactments within a statute must ordinarily be understood in a
way that furthers the object of the statute as well as that of the legislature, and if two
constructions of the same enactment exist, the court will adopt the one that advances remedy
and suppresses any mischief. If the literal rule of interpretation were to be considered every time,
it would result in irregularity and uncertainty because a word can have di erent meanings when
put in di erent contexts.

Also, what other words are used with that word also de ne or reduce its meaning variably. This
would result in ambiguity, or multiple meanings of a single word. It can also result in absurdity,
which means that the accurate meaning of the word as mentioned in the statute is completely
opposite of what is being deduced from literal constructions. In such cases, the statute becomes
questionable. Thus, these situations call for the application of the golden rule of interpretation.

Interpretation Procedure:

There are various methods suggested by experts in determining the meaning of statutes.
According to Austin, the interpretive process consists of three steps:

a. discovering the rule,

b. ascertaining the intention of the legislature, and

c. extending the statute to cover all those cases that fall within its scope.

De Sloovere also stated three steps of interpretation, with the rst being choosing the proper
statutory expression, followed by interpretation of that expression in a technical way, and applying
the so found interpretation, or meaning, to the case(s) given.

It is well settled that if the words of a statute themselves deliver a clear and unambiguous
meaning, there is no need to employ the golden rule of interpretation to modify the already
existing correct meaning. It is also evident that where the words so used in a statute are not those
which could give a precise meaning to the expression in question, it is important to apply the
golden rule of interpretation, in such a way that the true intention of the words is not reversed or
modi ed in any way.

Application of Golden Rule:

Nokes v. Doncaster Amalgamated Collieries Ltd:

Observed that where two constructions are possible, the court will avoid the one that would
prevent the object of the statute from being achieved, thus defeating the intent of the legislature.
One should always adopt that meaning which gives a reasonably clear meaning to the expression.

Nyadar Singh v. Union of India:

Rule 11(IV) of the Central Services (Classi cation, Appeal and Control) Rules, 1965, imposed
fi
ff
fi
fi
fi
fi
ff
 penalty ‘reduction to a lower time-scale pay grade, post or service. This rule was given a strict
interpretation, and the Supreme Court held that a person appointed to a high post or pay grade-
scale cannot be later on reduced to a lower post or pay grade-scale. If this rule were to be
accorded a wider interpretation, any person appointed to a higher post may lack the necessary
quali cation for a lower post.

U. P. Bhoodan Yagna Samiti v. Brij Kishore:

The Apex Court held that the meaning of the term ‘landless person’ under Section 14 of the
Bhoodan Yagna Act, 1953, signi ed ‘landless labourers’ only, and not ‘landless businessmen’.
The object of the Act was to provide land to labourers engaged in agriculture, and not to
businessmen.

Ramji Missar v. State of Bihar:

The Supreme Court in construing the age of the o ender as per Section 6 of the Probation of
O enders Act, 1958, held that the date according to which the age of the o ender has to be
determined is not the date of commission of o ence but the date of pronouncement of the
sentence.

Criticism of Golden Rule of Interpretation:

Even though the golden rule of interpretation proves to be useful over the literal rule, there may be
instances where application of this rule may lead to further unclarity. It does not point out whether
an anomaly actually exists in a legislative expression or not.

It also does not determine the extent of such anomaly, even if one were to exist. It also puts the
judges in a sort of dilemma, where they are left with nothing but to apply their own understanding
of the expression, which renders justice in biased hands. This may or may not be intentionally
done, but the fact that every judge can have a special opinion cannot be negated.

The golden rule of interpretation puts the judiciary under heavy responsibility of nding out the
intention of the legislature behind each legislative expression. In fact, every rule of interpretation
brings with itself some lacuna which needs to be looked into and adjusted accordingly.

The ultimate obligation of the courts is to deliver justice, without defeating the provisions of the
legislation. Unless a construction renders an enactment absurd, it should be given its natural
meaning.
ff
fi
fi
ff
ff
ff
fi
Question 3: Explain the Mischief Rule of statutory
construction with decided cases
Ans: Introduction: Quite often interpretation and construction are assumed to have the same
meaning, but there lies a thin line of distinction between the two. As established before, in the
legal context, one may consider interpretation to be the process of determining the true sense
underlying the statute. It is often confused with ‘construction’.

Construction means drawing conclusions in relation to the case, that lie beyond the expression of
the legal text. Interpretation helps resolving the ambiguity pertaining to the intention revolving
around the enactment of the statute. Construction helps one in ascertaining the legal e ect of a
text.

Meaning: Often referred to as Haydon’s Rule, the Mischief Rule of Interpretation is one of the most
important rules of interpretation. In legal parlance, the word mischief is normally understood to be
a kind of speci c injury or damage resulting from another person’s action or inaction. But in
relation to rules of interpretation, mischief means to prevent the misuse of provisions of a statute.
It is widely known as the mischief rule primarily because it focuses on curing the mischief.

As per the Mischief Rule of Interpretation, a statute must be construed in such a way as to
suppress the Mischief. Mischief should not have a place in the statute. If an attempt is made to
add Mischief in any statute, then it must be prevented by the Mischief Rule of interpretation.

Smit v Huge:

Revolved around the Street O ences Act, 1959. The statute was enacted to prohibit prostitutes
from solicitating on roads to the passing public. Post the enactment of the said Act, the
prostitutes began soliciting from their windows and balconies. Since, this defeated the intention of
the legislation, some prostitutes were charged under Section 1(1) of the said Act which read as:

“It shall be an o ence for a person aged 18 or over (whether male or female) persistently to loiter
or solicit in a street or public place for the purpose of prostitution.”

In response to these charges, the prostitutes pleaded that they were not soliciting from “the
streets”. Due to the misrepresentation of the meaning and intention of the said Act by the
prostitutes, the court rejected their argument and applied the mischief rule of interpretation by
stating that the inducement by them from the windows and balconies of their houses is also
prohibited under the Act.

The court justi ed this by stating that the purpose of the Act was to prevent prostitution. Hence,
due to the application of the mischief rule, the court held that ‘the windows and balconies of their
homes would count for an extension of the word and would come within the ambit of the word
‘street’.

Sewantilal v. Income Tax Commissioner:

The Supreme Court held that “it is a sound rule of interpretation that a statute should be so
construed as to prevent the mischief and to advance the remedy according to the true intention of
the makers of the statute.”

Haydon’s Case:

Mischief rule of interpretation can be traced back to Haydon’s Case It is considered to be a

landmark judgment for the Mischief Rule of Interpretation because the Mischief Rule seemed to
have evolved from this case. In the aforementioned case, it was held that there are four criterion
which have to be met for the true interpretation of all the statutes in general. They are as follows: –

1. What was the common law before the making of the Act/statute?
fi
ff
fi
ff
ff
 2. What was the mischief for which the present statute was enacted?

3. What remedy did the Parliament sought or had resolved and appointed to cure the disease
of the commonwealth?

4. The true reason of the remedy.

The core purpose behind the rule is to suppress the mischief and advance the remedy. Therefore,
there lies a duty upon the Courts of Law to construct the statute in a way such that it suppresses
the mischief and promotes the remedy in accordance with the intention of the legislature.

The Commissioner of Income Tax – Madhya Pradesh and Bhopal v. Sodra Devi:

Justice Bhagwati stated that “It is clear that unless there is any such ambiguity it would not be
open to the court to depart from the normal rule of construction which is that the intention of the
Legislature should be primarily gathered from the words which are used.”

Therefore, it is evident that the rule established in Heydon’s case can be applied only when the
words in question are ambiguous and are reasonably capable of having two or more meanings.

Case Laws:

1. Regional Provident Fund Commissioner v. Sri Krishna Manufacturing Company, 1962 AIR
1536

In this case, the factory listed as respondent comprised of 4 units for manufacturing. The 4
units operated as paddy mill, our mill, saw mill and copper sheet units. The number of
employees there were more than 50. By the application of the provisions of the Employees
Provident Fund Act 1952, the Regional Provident Fund Commissioner directed the factory to
furnish the employees with bene ts.

On the contrary, the respondent refused to comply on the ground that, separately, each of the
4 units comprised of less than 50 employees. Arguing on the aforesaid grounds, he stated that
the provisions of the Act did not apply to him. Nonetheless, the court was of the opinion that
the mischief rule needed to be applied in this case. Therefore, considering all the 4 units to be
one industry.

2. Pyarali K. Tejani v. Mahadeo Ramchandra Dange & Ors (1974 AIR 228):

In this case, the accused was being prosecuted under The Prevention of Food Adulteration
Act as he was selling supari that was sweetened with arti cial sweetener. Although the
accused argued that supari could not be considered as ‘food’ under the said Act, the Apex
Court by emphasizing on the application of the mischief rule of interpretation, rejected this
argument and held supari to be an ‘article of food’ under the Act. Hence, validating his
prosecution under the provisions of the said Act.

3. Kanwar Singh v. Delhi Administration [1965 SCR (1) 7]

The Licensing O cer of the Delhi Corporation along with members of a raiding party, under
the power vested in him in Section 418(1) of Delhi Municipal Corporation Act, 1957, took a few
cattle belonging to the appellant into their custody. According to Section 418(1), the
corporation or any other o cer authorized by him could impound the abandoned cattle.

The appellant contended that those cattle belonged to him, therefore, it they couldn’t be
considered abandoned as the word abandoned means ‘the loss of ownership’. The court, by
applying the mischief rule of interpretation in order to elucidate the meaning of the word
abandoned in the Act, stated “It is the duty of the court in construing a statute to give e ect to
the intention of the legislature. Therefore, giving a literal meaning to a word used by the
draftsman, particularly in a penal statute, would defeat the object of the legislature, which is to
suppress a mischief, the court can depart from the dictionary meaning or even the popular
ffi
ffi
fl
fi
fi
ff
 meaning of the word and instead give it a meaning which will ‘advance the remedy and
suppress the mischief’.”

The court while explaining the meaning of the word ‘abandoned’ elucidated on the intention of
the legislature behind using the it in the said Section. The court stated the abandoned does
not mean that the cattle must be ownerless. Therefore, the meaning of the word abandoned in
section 418 (1) means ‘let loose’ or ‘left unattended’. Consequently, the appeal was
dismissed.

Conclusion:

As and when necessary, the courts while rendering a judgement, taking into account the facts and
issues of the case along with the particular statute in question, must apply the rules of
interpretation. Maxwell in his Interpretation of Statutes was of the opinion that there lies a duty
upon the Courts as regards the interpretation of statutes and that the courts should do
construction in a way such that the mischief got no place in it. Hence, the courts must help in
setting precedents by suppressing the mischief and encouraging the remedy.
 Question 4: “Statue must be read as a whole in its
context.” Elucidate.
Ans: Meaning: While interpretation of a legal provision is always dependent of the fact of any
given case, the application of a statutory provision would always depend on the exact facts of a
given case. As per Salmond, ‘By interpretation or construction is meant, the process by which the
courts seek to ascertain the meaning of the Legislature through the medium of authoritative forms
in which it is expressed.

Interpretation di ers from Construction. The former is the art of nding out the true sense of any
form of words, which also means the sense that the author intends to convey. It may also be
understood as the process by which the courts determine the meaning of a statutory provision for
the purpose of applying it to the situation before them. Construction on the other hand, is the
drawing of conclusions, respects subjects that lie beyond the direct expression of the text from
elements known from and given in the text.

Intention of the legislature:

A statute is an edict of the Legislature and the conventional way of interpreting or construing a
statute is to seek the ‘intention’ of its maker. It is to be understood according to the intent of its
maker, with the guidance furnished by the accepted principles of interpretation.

South Asia Industries (Pvt.) Ltd. S. Sarup Singh, AIR 1966 SC 346

“The object of interpreting a statute is to ascertain the intention of the Legislature enacting it”

Words in any language are not scienti c symbols having any precise or de nite meaning, and
language is but an imperfect medium to convey one’s thought, to an audience consisting of
persons of various shades of opinion. The function of courts too, is only to expound, and not to
legislate.

The problem of interpretation, is a problem of meaning of words and their e ectiveness as a

medium of expression to communicate a particular thought. Words and phrases are symbols that
stimulate references to referents. But words of any language are capable of referring to di erent
referents in di erent contexts or times. However, there always lies the di culty of borderline cases
within or outside the connotation of a word. Language, therefore, has high chances of
misunderstanding.

The law is a pragmatic instrument of social order and an interpretative e ort must be imbued with
the statutory purpose. A construction that would promote the purpose or object of an Act, even if
not expressed, is to be preferred.

Jane Straford Boyse v. John T. Rassborough

“There is no possibility of mistaking midnight for noon; but at what precise moment twilight
becomes darkness is hard to determine.”

Thus, the courts, although conscious of such a dividing line,, do not attempt to draw it for reasons
of practical impossibility; however, sometimes, attempts it after laying down a working line;
howsoever pragmatic, it may or may not be.

There is a marginal area in which the courts mould or creatively interpret legislation and thus nish
or re ne legislation which comes to them in a state requiring varying degrees of re nement. Since,
interpretation always implies a degree of discretion and choice, creativity, a degree which is
especially high in certain areas such as constitutional adjudication.

Some judges proclaim that they perform creative functions even in interpretation, however, this
may sometimes lead to conclusions which have a strong legislative avor. Interpretation should
fi
ff
ff
fi
fi
fl
ffi
ff
fi
ff
fi
ff
fi
 not be regarded as a search for the purpose of the Legislature or even for the purpose of the
statute, but as one of ‘attribution of purpose’, in venturing to do justice.

The rst and primary rule of construction is that the intention of the Legislature must be found in
the words used by the Legislature itself. The question is not what may be supposed to have been
intended but what has been said. The key to the opening of every law is the reason and spirit of
the law. Each word, phrase or sentence, is to be construed in the light of the general purpose of
the Act itself. Interpretation must depend on the text and the context, as they are the bases of
interpretation.

If the text is the texture, context gives the colour. Neither can be ignored. A particular clause or
expression is construed by construing the whole instrument and any dominant purposes that it
may express. The Legislative function cannot be usurped under the disguise of interpretation, and
the danger of an priori determination of the meaning of a provision based on the preconceived
notions of ideological structure or scheme should be avoided.

Caution is all the more necessary. The correct interpretation is one that best harmonizes the
words with the object of the statute. A right construction of the Act can only be attained if its
whole scope and object together with an analysis of its wording and the circumstances in which it
is enacted are taken into consideration. It s all about interpretation and not about interpolation.

The rules of interpretation are not rules of law; they are guides and such of them which serve no
useful purpose, can be rejected and new rules can be evolved in their place. They are aids to
construction, presumptions or pointers. The shift towards use of plain language has attached with
it, a lot of controversy. The language of our legislation cannot be reduced to baby talk for
consumption of the masses, and the attainment of precision, and accuracy.

A good draft contains a clear expression of intent, uses a consistent terminology throughout,
avoids passive voice and aspirational statements The terms de ned are either authoritatively
de ned in the draft or by judicial interpretation.Sentences are short.

Simple words commonly used in ordinary speech are preferred. Convoluted sub-division is
avoided and so is repetition. Di erence between purposive and literal construction: The di erence
is in truth of one degree only. The real distinction lies in the balance to be struck in the
particular case between literal meaning of the words on the one hand and the context and
purpose of the measure in which they appear on the other.

Statue must be read as a whole in its context:

The statute as a whole, the previous state of the law, other statutes in pari materia, the general
scope of the statute, and the mischief it is to remedy, is the basic context of any statute.
The elementary rule states that the intention of the Legislature must be found by reading the
statute as a whole.

Every clause needs to be construed with reference to the context and other clauses of the Act, to
make a consistent enactment of the whole statute or series of statutes relating to the subject-
matter. It is the most natural and genuine exposition of a statute.

The conclusion that the language is plain or ambiguous can only be truly arrived at by studying
the statute as a whole. How far and to what extent each component in uences the meaning of the
other , would be di erent in each given case. Each word, must however, be allowed to play its
role, however signi cant or insigni cant it may be. in achieving the legislative intent.

Each section must be construed as a whole, whether or not one of the parts is a saving clause or
a proviso. They may be interdependent, each portion throwing light, if need be on the rest. A
question of construction only arises when one side submits that a particular provision of an Act
covers the facts of the case and the other submits that it does not or it may be agreed it applies,
but the di erence arises to its application.
fi
fi
ff
fi
ff
ff
fi
fi
fl
ff
Statute to be construed to make it e ective and workable:

However plain the meaning be The interpretation should be construed to make the statute
workable, which secures the object, unless crucial omissions or clear direction makes that end
unattainable. The doctrine of purposive reconstruction may be taken recourse to for the purpose
of giving it full e ect to the statutory provisions. The meaning of the statute must be considered
rather then the rendering the statute a nullity.

Appraisal of the principle of plain meaning

Plain words require no construction. This starts with the premise that the words are plain and that
the conclusion can be arrived at after construing the words. This also means that once the
conclusion has been arrived at, that the words/ sentence can bear only one meaning, the e ect to
that meaning is to be given.

Language which on its construction results in absurdity, inconsistency, hardship or strange

consequence is not readily accepted as unambiguous. Here unambiguous means ‘unambiguous
in its context.

So ambiguity need not necessarily be a grammatical ambiguity, but one of appropriateness of the
meaning in a particular context. Also, di erence of judicial opinion as to the true meaning of
certain words need not necessarily lead to the conclusion that those words are ambiguous.

Bhavnagar University v. Palitana Sugar Mill

“Statutory enactment must ordinarily be construed according to its plain meaning and no words
shall be added, altered or modi ed unless it is plainly necessary to do so to prevent a provision
from being unintelligible, absurd, unreasonable, unworkable or totally irreconcilable with the test
of the statute.”
ff
fi
ff
ff
ff
Question 5: Explain the importance of the Doctrine of
Harmonious Construction.
Ans: Introduction: Law has a very important place as an agent for social evolution. In a
democratic system of governance, there are numerous intersections among social evolution and
legal order. The law has its source in legislation is called Statute law. It is quickly made, de nite
and does not have to wait for recognition by the courts. The courts recognize a statute because it
is law, not law merely because the courts recognize it.

The word ‘Law’ in the context of Article 300-A of the Constitution must mean an Act of Parliament
or of a State Legislature, a rule, or a statutory order, having the force of law, that is positive or
State-made law.i In the United Motors case, when the Supreme Court construed Article 286(1) of
the Constitution, their interpretation was deemed to be the correct interpretation of that article
from the day itself.

The consequential e ects owing from the law so laid down should necessarily follow the subject
of course to the law of limitation or special rules such as res judicata in civil cases or autre fois
acquit or convict in criminal cases provided in the special statutes.ii Statutes are not always
rational (change this word to direct/literal) and it may not be within the province of the court to
import rationality in an enactment under the guise of interpretation.

This is where interpretation becomes crucial. The enacted law must be seen as an attempt to
reconcile, to harmonize, to adjust the overlapping and often con icting claims and demands, so
that the sacri ce of the con icting provisions is seldom made.

Now, one of the most important doctrines for the interpretation of statutes, which is also the topic
for this article will be discussed in detail.

Doctrine of Harmonious Construction:

This rule is used to avoid any inconsistency and repugnancy within a section or between a section
and other parts of a statute. The rule follows a very simple premise that every statute has a
purpose and intent as per law, and should be read as a whole. The interpretation which is
consistent with all the provisions and makes the enactment consistent shall prevail. The doctrine
follows a settled rule that an interpretation that results in injustice, hardship, inconvenience, and
anomaly should be avoided. The interpretation with the closest conformity to justice must be
picked.

The Supreme Court laid down 5 main principles of the ‘Doctrine of Harmonious Construction:

• The courts must avoid a ‘head of clash’ of contradictory provisions and they must construe
the contradictory provisions so as to harmonize them.

• When it is not possible to completely reconcile the di erences in contradictory provisions, the
court must interpret them in such a way so as to give e ect to both provisions as much as
possible.

• Courts must keep in mind that the interpretation which reduces one provision to a useless
standing is against the essence of ‘Harmonious Construction’.

• To harmonize the provisions is not to render them fruitless or destroy any statutory provision.

• The provision of one section cannot be used to render useless the other provision, unless the
court, despite all its e orts, nds a way to reconcile the di erences.

The approach that is mostly used by the courts is to nd out which provision is more general in
nature so as to construe the more general provision and exclude the speci c one. The maxims
fi
ff
ff
fl
fl
fi
ff
fi
ff
ff
fl
fi
fi
Generalia Specialibus Non-Derogant, and Generalia Specialibus Derogant catches the essence of
the doctrine. The former means that general things do not derogate from special things, and the
latter means that special things derogate from general things.

Further, this principle is also used to resolve con icts between two separate acts and in the
making of statutory orders and rules. But if a person has two remedies, one being general and the
other being speci c, they continue to hold good for the concerned person until he elects one of
them.

Landmark Decisions:

M.S.M. Sharma v. Krishna Sinha:

The doctrine was applied to resolve the con ict between Articles 19(1)(a) and Article 194(3) of the
Constitution and it was held that the right to freedom of speech as guaranteed under Article 19(1)
(a) is to be read as subjects of powers and privileges of the House of the Legislature which is
similar to those of the House of Commons of the United Kingdom as declared under Article
194(3).

But, after the above judgment, in Special Reference No. 1 of 1964 it was decided that Article
194(3) was subordinate to Articles 21, 32, 211, and 226. This conclusion was also reached
through the recourse of Harmonious Construction.

Venkataramana Devaru v. the State of Mysore:

The Supreme Court applied the doctrine in resolving a con ict between Articles 25(2)(b) and 26(b)
of the Constitution and it was held that the right of every religious denomination or any section
thereof to manage its own a airs in matters of religion [Article 26(b)] is subject to provisions made
by the State providing for social welfare and reform or opening of Hindu religious institutions of a
public character to all classes and sections of Hindus [Article 25(2)(b)].

The principle of ‘Harmonious Construction’ is also applicable in the case of construction of

provisions relating to subordinate legislation.

Sirsilk Ltd. v. Govt. of Andhra Pradesh:

A very important question was answered. Various disputes arose between the employer and the
workmen and it was further referred to an industrial tribunal. After the adjudication was over, the
government sent its award to the government for publication.

However, before the publication of the award, the parties to the dispute came to a settlement, and
wrote a letter to the government jointly, that the dispute has been settled and the award shall not
be published. The government refused to withhold the publication and in turn, the parties further
moved the High Court. The High Court rejected the writ petition.

The parties further moved the Supreme Court through a special leave petition.The main premise
of the appellants was that Section 17 of the Industrial Disputes Act, 1947 was directory in nature
and not mandatory.Ordinarily, the words ‘shall’ and ‘must’ are mandatory, and the word ‘may’ is a
directory, although using them interchangeably in legislation is common.

Section 17(1) of the Act states, ‘‘Every award shall within a period of thirty days from the date of
its receipt by the appropriate government be published in such manner as the appropriate
government thinks t.” The court read the Section 17 and 17A and declared that the duty cast on
the government to publish the award is mandatory and not a directory. Thus, the contention of the
appellants did not hold good.

But on further observation by the court, Section 18 was scrutinized. Section 18 (1) provides that a
settlement arrived at by agreement between the employer and the workmen otherwise than in the
course of conciliation proceeding shall be binding on the parties to the agreement.
fi
fi
ff
fl
fl
fl
The Supreme Court observed that in the present case, the duty of the government under Section
17 of the Industrial Disputes Act, 1947 and settlement under Section 18 are in con ict with each
other. Finally, it was held that where a settlement has been arrived at between the parties before
the tribunal after the award has been submitted to the government but before its publication, no
dispute is left to be resolved. So, the government should refrain from publishing the award.

Thus, in the above case, Harmonious Construction was employed. This is a ne example of how
enforcement of one provision can be implemented without rendering the other provision useless
or dead.

How to apply Doctrine of Harmonious Construction:

After analysing various case laws, the Courts have devised certain steps for the better
applicability of the said doctrine:

• Giving full e ect to both the provisions and reducing the contrary nature and/or con ict
between them.

• Both the provisions that are con icting in nature or are repugnant to each other are to be
read as a whole and the entire enactment in question must be considered.

• Of the two con icting provisions, choose the one that is wider in scope.

• Compare the wider provision with the narrow provision and then try to interpret the wider
provision to see further consequence. If the consequence is as reasonable as to harmonize
both the provisions, and it gives their full e ect separately, no further inquiry is needed.

One important aspect to be kept in mind is that the legislature while framing the provisions
was fully aware of the situation which they entered to cover and therefore all provisions
enacted require to be given their full e ect on scope.

• When one section of an Act takes away powers conferred by another Act, a non-obstante
clause must be used.

• It is imperative that the Court must try to nd out the extent to which the legislature has
intended to give one provision an overriding power over another provision.

Eastbourne Corporation v. Fortes Ltd.: It was held that if two contradictory sessions cannot
be reconciled, then the last section must prevail. Though this is not a universal rule.

Importance of Interpretation Of Statues:

Every court is assigned a task of statutory interpretation and it should be performed with utmost
care and caution. The court can always interpret legislation in its own way and the responsibility
to understand the intent of the legislature while applying the doctrine also stands solely with the
court. The interpretation of di erent statutes di er in nature and it is imperative that the
interpretation comes out in a clear and unambiguous way.

But, if both the provisions are unclear, there will be no interpretation. They will only interpret when
the words are clear and in the case of any ambiguity the court will look into enacting provisions of
the statute. The court here will only apply the Literal interpretation and apply the popular meaning.
Regarding the law, every word has a meaning and the interpretation will become the scope and
beyond the reach of objectives and reasons for which the statute was enacted in the legislature.

Hence, the court should understand the importance of the ‘Doctrine of Harmonious Construction’
and interpretation of statutes in general with its ever increasing scope in the present times.
ff
fl
ff
fl
ff
ff
fi
ff
fi
fl
fl
 Question 7: Explain rules of interpretation of mandatory
and directory provisions.
Ans: Introduction: No universal rule can be laid down as to whether mandatory enactments shall
be considered directory only or obligatory with an implied nulli cation for disobedience. Courts of
justice must try to get the real intention of the Legislature by carefully understanding the intent of
the statute.

The Supreme Court of Indian has pointed out on many occasions that the question as to whether
a statute is mandatory or directory depends upon the intent of the Legislature and not upon the
language in which the intent is clothed. The meaning and intention of the Legislature must govern,
and these are to be ascertained not only from the phraseology of the provision but also by
considering its nature, its design, and the consequences which would follow from construing it
the one way or the other.

According to Crawford 3:

“A statute, or one or more of its provisions, may be either mandatory or directory. While usually in
order to ascertain whether a statute is mandatory or directory, one must apply the rules relating to
the construction of statutes; yet it may be stated, as a general rule, that those whose provisions
relate to the essence of the thing to be performed or to matters of substance, are mandatory, and
those which do not relate to the essence and whose compliance is merely a matter of
convenience rather than of substance, are directory”.

DA Koregaonkar v State of Bombay:

It was held that one of the important tests that must always be employed in order to determine
whether a provision is mandatory or directory in character is to consider whether the non-
compliance of a particular provision causes inconvenience or injustice and, if it does, then the
Court would say that, the provision must be complied with and that it is obligatory in its character.

Di erences Between Mandatory and Directory Provisions:

Sutherland: “The di erence between mandatory and directory statutes is one of e ect only. The
question generally arises in a case involving a determination of rights as a ected by the violation
of, or omission to adhere to, statutory directions. This determination involves a decision of
whether or not the violation or omission is such as to render invalid Acts or proceedings pursuant
to the statute, or rights, powers, privileges or immunities claimed there under. If the violation or
omission is invalidating, the statute is mandatory; if not, it is directory”.

Rules for Determination of Mandatory and Directory Provisions:

1. Intention of Legislature: In determination of the question, whether a provision of law is

directory or mandatory, the prime object must be to ascertain the legislative intent from a
consideration of the entire statute, its nature, its object and the consequences that would
result from construing it in one way or the other, or in connection that with other related
statutes, and the determination does not depend on the form of the statute.

Hari Vishnu Kamath v Ahmad Ishaque

The Supreme Court observed that the various rules for determining when a statute might be
construed as mandatory and when directory are only aids for ascertaining the true intention of
the Legislature which is the determining factor, and that must ultimately depend upon the
context. An enactment, mandatory in form, might in substance be directory. The use of word
'shall' does not conclude the matter.
ff
ff
fi
ff
ff
 2. Purpose Behind Statue: Chandrika Prasad Yadav v State of Bihar:

It was held that, the question as to whether a statute is directory or mandatory would not
depend upon the phraseology used therein. The principle as regards the nature of the statute
must be determined having regard to the purpose and object the statute seeks to achieve.

Sutherland:

"It can be stated as a general proposition that, as regards the question of mandatory and
directory operation, the courts will apply that construction which best carries into e ect the
purpose of the statute under consideration. To this end, the Court may inquire into the
purpose behind the enactment of the legislation, requiring construction as one of the rst
steps in treating the problem. The ordinary meaning of language may be overruled to
e ectuate the purpose of the statute".

Lila Gupta v Laxmi Nariain:

The Court was interpreting the proviso to section 15 of the Hindu Marriage Act 1955 (which
was repealed in 1976). The expression read as follows- "Provided that it shall not be lawful for
the respective parties to marry again unless at the date of such marriage at least one year has
elapsed from the date of the decree in the court of the rst instance". The Court observed that
when a statute prohibits a certain thing being done, thereby making it unlawful without
providing for the consequence of the breach, it was not legitimate to say that such a thing
when done was void because that would be tantamount to saying that every unlawful act is
void. On the basis of this reasoning, the Court held that a marriage in violation of the proviso
would not be a nullity, irrespective of the use of the word 'shall' in the provision.

3. Use of Prohibitory Words: State of Himachal Pradesh v MP Gupta:

The Court was interpreting section 197 of the Code of Criminal Procedure 1973, which
provided 'that no court shall take cognizance of any o ence alleged to have been committed
by a public servant, judge, magistrate, or member of the armed forces'. It was held that the
use of the words 'no' and 'shall' make it abundantly clear that the bar on the exercise of
power of the Court to take cognizance of any o ence is absolute and complete.

Mandatory and Permissive Words:

Sidhu Ram v Secretary Railway Board:

“Where the penalty of dismissal, removal from service, compulsory retirement, reduction in rank or
withholding of increment has been imposed, the appellate authority may give the railway servant
either at his discretion or if so, requested by the latter a personal hearing, before disposing of the
appeal.”

The Court has to consider whether the obligation to give a personal hearing was mandatory or
directory. On plain reading of the Rule, the Court held that if the expression 'may' were to be read
as 'must', it would impose a duty on the appellate authority to give a right of personal hearing in
each case. In the opinion of the Court, if that was the intendment of the Legislature, it would have
expressed it in much simpler and explicit terms. Hence, the Court held that the provision was
directory and not mandatory. In arriving at this decision, the Court observed—

"Ordinarily the words 'shall' and 'must' are mandatory and the word 'may' is directory although
they are often used interchangeably. It is this use, without regard to the literal meaning, that
generally makes it necessary for the Court to resort to construction in order to ascertain the real
intention of the draftsman.

Nevertheless, it is generally presumed that the words are intended to be used in their natural
meaning. Law reports do show that when a statute deals with the right of the public, or where a
third person has a claim in law to the exercise of the power, or something is directed to be done
for the sake of justice of public good, or when it became necessary to sustain the constitutionality
ff
ff
ff
fi
ff
fi
 of a statute, the word ‘may’ is sometimes used as ‘must’. In the nal analysis, it is always a matter
of construction of the statute in question”

It may, however, be noted that the presumption that the Legislature used mandatory and
permissive terms in their primary sense is a rebuttable one. The intention of the Legislature will
control and prevail over the literal meaning of these words. The literal and ordinary meaning of
imperative and permissive terms will give way when the interpretation of the statue according to
the literal meaning of its words leads to absurd, inconvenient, or unreasonable results.

Use of Word ‘May’:

It is well settled that the use of the word 'may' in a statutory provision would not by itself show
that the provision is a directory in nature. In some cases, the Legislature may use the word 'may'
as a matter of pure conventional courtesy and yet intent a mandatory force. In order, therefore, to
interpret the legal import of the word 'may'.

The Court has to consider various factors, namely the object and the scheme of the act, the
context and the background against which the words have been used, the purpose and the
advantages sought to be achieved by the use of this word, and the like.

It is equally well-settled that where the word 'may' involves a discretion coupled with an obligation
or where it confers a positive bene t to a general class of subjects in a utility Act, or where the
Court advances a remedy and suppresses the mischief, or were giving the words a directory
signi cance would defeat the very object of the act, the word 'may' should be interpreted to
convey a mandatory force.

Alcock, Ashdown & Company Ltd v Chief Revenue Authority:

The appellants claimed exemption from excess pro t duty, but this contention was rejected. They
applied to the High Court for an order directing the respondent to state a case of the opinion of
the High Court and the question was whether the High Court had jurisdiction to do so.

Section 15 of the Excess Pro ts Duty Act 1919 made section 51 of the Indian Income Tax Act
1918 applicable to proceedings under the former act. Section 51 of the latter Act provides that if
— " in the course of any assessment a question has arisen with reference to the interpretation of
any of the provisions of the act, the Chief Revenue Authority may draw up a statement of the case
and refer it to the High Court.

It was held that it was true that 'may' does not mean 'shall' but when a capacity or power is given
to a pubic authority, there may be circumstances which couple with the power a duty to exercise
it. In their Lordships' view, always supposing that there is a serious point of law to be considered,
there does lie a duty upon the Chief Revenue Authority to state a case for the opinion of the
Court, and if he does not appreciate that there is such a serious point, it is in the power of the
Court to control him and to order him to state a case.

Use of Word Shall:

The word 'shall' is not always decisive. Regard must be had to the context, subject matter and
object of the statutory provision in question in determining whether the same is mandatory or
directory. No universal principle of law could be laid in that behalf as to whether a particular
provision or enactment shall be considered mandatory or directory. It is the duty of the Court to
try to get at the real intention of the Legislature by carefully analysing the whole scope of the
statute or section or a phrase under consideration.

Statues Relating to Judicial Duties and Proceedings:

A statutory requirement relating to a matter of practice or procedure in the Court should be

interpreted as mandatory if it confers upon a litigant a substantial right, the violation of which will
injure him or prejudice his case. On the other hand, a statutory provision regulating a matter of
fi
fi
fi
fi
fi
 practice or procedure will generally be read as a directory when disregard of it or the failure to
follow it exactly will not materially prejudice a litigant's case or deprive him of a substantial right.

Kasi Bishwanath Dev v Paramananda Routrai:

The matter before the Court was whether, under 35B of Civil Procedure Code, the payment of
costs would be a mandatory condition precedent to the proceedings of the suit. The relevant
portion of the provision read as follows—

"The Court may for reasons to be recorded, make an order requiring such party to pay to the
other party such costs as would, in the opinion of the Court, be su cient to reimburse the other
party in respect of the expenses incurred by him in attending the Court on that date and such
order shall be condition precedent to the further prosecution of"

The Court held that the cause of justice was paramount, and a procedural law could not be raised
to the pedestal of a mandatory provision as would take away the Court's right in a given vase to
exercise its discretion in the interest of justice. Hence, the language in which section 35B of the
Civil Procedure Code had been expressed must be considered to be directory.

Conclusion:

1. When the Legislature used 'must' instead of 'shall' it uses a word which is most strongly
imperative.

2. In some cases the word 'must' or the word 'shall' may be substituted for the word 'may' but
only for the purpose of giving e ect to the clear intention of the Legislature.

3. Normally, however, the word 'may' must be taken in it naturally, that is, permissive sense and
not in its obligatory sense.

4. In matters of procedure, mandatory words may be construed as directory.

5. 'May and 'shall' are generally used in contradistinction to each other and normally should be
given their natural meaning especially when they occur in the same section. But in phrases
like, it "shall be lawful for the court', 'shall be liable to pay costs' and "shall be liable to be
forfeited', the meaning is not mandatory.

The rst expression means the Court has discretion; the second expression gives a discretion
to the Court to award costs or interest, and the third not that there should be an absolute
forfeiture but a liability to forfeiture which might or might not be enforced.

6. Similarly, it may happen that in an Act the word 'may' is used in such a way as to create a duty
that must be performed.
fi
ff
ffi
 Question 9: Discuss the consequences of a repeal of a
statue.
Ans: Introduction: In general, the term repeal stands for to cancel or to revoke. But in the context
of law, it means to “abolish statutes”. Repeal of statutes means the abolition of the law, and once
if any statute is abolished then it is considered void and possesses no e ects. In addition, there is
no basic di erence between amendment and repeal. Both the term amendment and repeal is
used for stating a similar expression that is the substitution or omission or addition.

As per Halsbury’s Laws of England, the term repeal stands for revoking and abolishing an act and
all its e ects which cause it to cease to be a part of statutes of books or body of law.

According to the Black’s law dictionary, the term repeal means a legislative act which abrogates
or obliterates an existing statute.

There exist two types of statutes temporary and perpetual. Temporary statutes tend to have
e ects for a speci c period of time. They have no e ects after the expiry of the speci c period,
however, the permanent or the perpetual statute is the one in which the statute remains e ective
until it is substituted or repealed by the legislative act.

The power to repeal a statute is conferred to the legislature is similar to the powers it has for the
enactment of a statute. For example, the Companies Act, 2013 repealed the Companies Act
1956, the Criminal Procedure Code, 1973 repealed the previous Criminal Procedure Code, etc.

Such power of repealing a statute is similar and coextensive to the power of making or enacting a
law. Both the union and the state legislature are empowered with such power however they are
restricted to delegate the power of repealing.

Objectives of Repealing Act:

The primary object of this act is to bring necessary changes in the existing law for changing
socio-economic and cultural conditions from time to time. The purpose of this Act is to remove
the outdated or obsolete matter from the body of law.

After the removal of obsolete matter, it is the court that decides whether the new provision meets
its goal and has di erent intentions or not. This act is the editorial revision by abolishing obsolete
and unnecessary matter of the statute and adding new and proper information in the books of the
statute.

Kinds of Repeal:

1. Express Repeal: Express repeal is an expression which means the abolition of the previously
enacted statute by the newly enacted provisions of a statute through expressed words
embedded under the new statute enacted.

The statute which has been repealed is called repealed statute and the one which replaces the
earlier statute is called the repealing statute. In general, when an earlier statute or some of its
provisions are repealed through express words embedded under the newly enacted statute
stating that the provisions are now of no e ect is called the express repeal.

Essential Features of Express Repeal:

• The rst and foremost feature is that there must be a repealing statute.
• The earlier statute must be repealed by the new enacting or repealing statute.
• The enacted statute must have clear intention showing the e ect of the repeal.

So it is understood that any earlier statute or provision of the statute can be removed or
repealed by the enacted statute showing incompatibility with the previous one.
ff
fi
ff
ff
ff
fi
‌
‌
ff
ff
ff
ff
fi
ff
 2. Implied Repeal:

The term implied means implicit or hinted. So when a statute becomes obsolete and it is
inferred that it is no longer and shall be repealed with the newly enacted statute then this
process of repealing is called implied repeal.

For example, if we enter a car showroom it is intended that we are there to buy cars. It is
implied, similarly, if there arises any inconsistency in the statute and due to certain
circumstances it becomes necessary to repeal the statute with the new one though such
situation is not expressly stated, then it is implicit for the implication of repeal.

When the reference is not direct then the matter is decided through the meaning and nature of
the words enshrined under the repeal clause. During the absence of provisions relating to
express repeal the continuance of any statute or legislation is presumed.

In the case of implied repeal, the burden lies over the person who asserted the implication of
repeal. However, it has also been mentioned that if the newly enacted statute shows no clear
intention or is inconsistent with the provisions of the earlier act then such an assertion or
presumption is rebutted and the act of repeal is done by inferring necessary implications.

The concept of implied repeal is loosely based on the following maxim “Leges posteriores
priores contrarias abrogant”. This means that the earlier or previously enacted law shall be
obliterated or abolished by the new one.

Under the following circumstances, the implied repeal is inferred:

• The rst circumstance is when both the subsequent and the earlier enacted acts are
inconsistent with each other one of the two can remain e ective.

• When the subject of the earlier act is covered by the act and is intended to substitute.

Test of Implied Repeal:

There is the assertion against the repeal by implication. The reason for making such an assertion
is that legislature while making or enacting the law has full knowledge about the current laws on
the subject matters. If the legislature has no provision regarding the repeal of the statute then it
is asserted that the legislature has no intention to repeal the existing statute.

Municipal council, Palari v. T.J. Joseph:

In the instant case, it was held that if an act or provision enacted is inconsistent from the act
previously enacted and one of the acts must be obliterated. The presumption, in this case,
rebutted and the implied repeal is inferred.

For the implied repeal of a statute following points are to be considered:

• Whether the previously enacted laws are in direct contradiction to the later enacted laws.

• The con ict between the laws is of such a nature that can’t be resolved and reconciliation
between the laws is not possible.

• Whether the newly enacted act is not consistent with the previously enacted act and one has to
be obliterated.

• When both the laws are of such a nature that occupy and deals with the same eld.

Delhi Municipality V. Shivshanker:

In the instant case it was held by the supreme court of India that the test which is applied in
case of repugnancy under Article 254 of the Indian constitution while resolving the con icts
fi
fl
ff
fi
‌
‌
‌
‌
fl
 arising between the laws enacted by the parliament and the laws created by the state
legislature, this test of determining repugnancy shall be applied in case of implied repeal of a
statute. This test includes:

• Whether there exists a direct contradiction between the two statutes or provisions.

• When the law tends to occupy the same eld.

• When the legislature explicitly focused on the code of the particular subject matter replacing the
earlier law.

Repeal by Desuetude:

As it has been already stated that there are two types of statutes namely temporary statute and
the permanent statute. There exists a very thin line di erence between both the statutes. A
temporary statute is enacted for speci c purposes and for a speci c time period and gets
repealed after the expiry of that particular period or ful lment of that purpose. A permanent
statute which is also known as a perpetual statute is enacted with a long term goal and gets
repealed by the subsequent statute.

There are certain acts which possess the nature of permanent statute but remains inoperative or
ine ective for a long period of time as they are not applied or taken into consideration by the
court for a long period of time. Due to this, the statute loses its recognition and its applicability.
Such disobedience of act is known as Repeal by Desuetude.

E ects or repeal with respect to common law:

• Common law is commonly known as the law made by the judge. It contains the following e ect
regarding the repeal of the statute.

• The rst e ect is that the statute repealed is abolished and obliterated and becomes dead as if
the enactment of the statute.

• All the rights created and enshrined under the repealed act is removed.

• The repealed portion gets resuscitate if the repealing act is repealed by the new subsequent act
and such an act shows its intentions.

General consequences of repeal:

• A newly enacted law repudiate the existing one.

• The statute after getting repealed becomes ine ective.

• Statute repealed is abolished by the repealing statute as if it had never been made by the
legislature.

• Except for a saving clause, each and every part of the statute is considered unconstitutional.

• In order to validate a transaction made under a repealed statute, the law can retrospectively
amend the statute even after it is obliterated.

E ects embedded under the General Clause Act, 1987:

If any act made after the incorporation and commencement of this Act, repeals any statute made
until now then until a di erent intention or object appears between the act and the repeal shall
not- e ects the operation commenced under the provision of this Act.
ff
ff
ff
fi
ff
ff
ff
fi
fi
ff
ff
fi
fi
ff
 Conclusion:

It can be concluded that the Repeal of statutes means the abolition of the law, and once if any
statute is abolished then it is considered void and possesses no e ects. In addition, there is no
basic di erence between amendment and repeal.

Both the term amendment and repeal is used for stating similar expression that is the substitution
or omission or addition. Both the union and the state legislature are empowered with such power
however they are restricted to delegate the power of repealing.

The primary object of this act is to bring necessary changes in the existing law for changing
socio-economic and cultural conditions from time to time. The purpose of this act is to remove
the outdated or obsolete matter from the body of law.

After the removal of obsolete matter, it is the court that decides whether the new provision meets
its goal and has a di erent intention or not. This act is the editorial revision by abolishing obsolete
and unnecessary matter of the statute and adding new and proper information in the books of the
statute.
ff
ff
ff
 Question 10: Explain the principles of interpreting
statutes a ecting jurisdiction of courts.
Ans: A. The Extent of Exclusion

Construction of exclusionary clauses: The extent of exclusion will largely depend upon a
construction of the provision enacted for that purpose but in case of doubt it is a familiar
approach to correlate the section excluding civil court's jurisdiction with other sections in the
same statute providing special remedies, for a contrary construction would lead to a vacuum.

Absence of a provision to enable an authority or tribunal for holding an inquiry on a particular

question is indicative that jurisdiction of civil courts on that question is not excluded; whereas the
very provision setting up hierarchy of judicial tribunals for the determination of a question, is
su cient in most cases for inferring that the jurisdiction of the civil courts to try the same matter is
barred.

But when with the object of speedy adjudication of certain matters which are widely de ned,
jurisdiction is conferred on tribunals or special courts and jurisdiction of normal courts is
excluded, the wide language used cannot be narrowly construed and it is now a well established
principle that the jurisdiction of a court created specially for reduction of disputes of certain kinds
should be construed liberally.

Further, when jurisdiction of civil courts on a particular matter is excluded by transferring that
jurisdiction from civil courts to tribunals or authorities, it is presumed that such tribunals or
authorities can draw upon the principles of procedure in civil procedure code, though not
expressly made applicable, to ensure fair procedure and just decision unless such principles are
inconsistent with the provisions of the Act constituting them.

Even in cases where jurisdiction is excluded by use of prima facie comprehensive language, it is
open to civil courts which are courts of general jurisdiction to decide whether a court, or tribunal
or authority having limited jurisdiction, has acted in excess of its statutory powers. In other words,
civil courts can interfere when the order of the tribunal or authority is really not an order under the
Act conferring special jurisdiction but is a nullity.

But on matters on which jurisdiction of the civil court is excluded, neither consent of the parties
nor an order of the special tribunal which has jurisdiction to decide those matters, can confer
jurisdiction on the civil court.

Poona City Municipal Corp v Dattatraya Nagesh Deodhar:

The Supreme Court upheld the maintainability of a suit for recovery of money which the Municipal
Corporation detained as a "tax on octroi refund" on the ground that the Corporation had no power
to levy such a tax. It was further held that the action of the Corporation in levying such a tax was
not "any act done or purported to be done in pursuance or execution or intended execution" of
the Corporation Act.

Bharat Kala Bhandar v Dhamangaon Municipality:

A suit to claim refund of tax on professions, trades and callings levied and collected by the
Municipality in excess of constitutional limits prescribed by section 142A of the Government of
India Act, 1935, and Article 276 of the Constitution, was held to be maintainable.

It was pointed out that the suit did not relate to anything done or purported to be done under the
Act; and the special procedure of notice and limitation prescribed by the Act did not apply.

It was further held that the suit was not barred by a statutory provision in the Act which was to the
e ect: "No objection shall be taken to any valuation, assessment or levy in any other manner or
by any other authority than as provided in this Act."
ff
ffi
ff
fi
 B. Case for Nullity:

It has already been stated that an exclusionary clause in an Act which forbids a challenge to "a
determination or order made under the Act", in a civil court contemplates cases of a real
determination or order and does not protect a determination or order which is a nullity or void.
The question then is: when can an order passed by a tribunal or authority of limited jurisdiction be
held to be a nullity?

It is trite law that an order passed without jurisdiction is a nullity. According to the original or pure
theory of jurisdiction, the jurisdiction of a tribunal is determinable at the commencement of a
proceeding and if jurisdiction is properly assumed any order passed thereafter will be within
jurisdiction and conclusive though it may be erroneous in fact or law.

This theory of jurisdiction reduced judicial control of tribunals to a vanishing point and allowed
them to usurp powers which the Legislature never intended to confer. The pure theory of
jurisdiction, therefore, gave place to the modern theory of jurisdiction according to which defects
of jurisdiction can arise even during or at the conclusion of a proceeding.

The courts make a distinction between jurisdictional questions of fact or law (also called collateral
fact or law) and questions of fact or law which are not jurisdictional. If a question of fact or law is
of the former category, the tribunal though competent to inquire into that question cannot decide
it conclusively, and a wrong determination of such a question results in making the nal decision
in excess of jurisdiction.

But if a question of law or fact is of the latter category, the tribunal's determination is nal and
conclusive. In other words a tribunal cannot by a wrong determination of a jurisdictional question
of fact or law exercise a power which the Legislature did not confer upon it.

Di culty arises in applying this principle because there is no clearcut demarcation between
jurisdictional and non-jurisdictional questions of fact or law. This di culty is further increased as
the Legislature can create a tribunal having power to decide nally even apparently jurisdictional
facts and such a tribunal's determination is not liable to be questioned on the ground that it has
wrongly decided a jurisdictional fact.

In spite of these di culties the modern theory of jurisdiction has "the merit of preserving a exible
control, by which the court can give a sharp check to what it may think a usurpation of power. The
most important thing of all is that legal control of power should be preserved.”

Ujjam Bai v State of UP:

hows that an adjudication by a tribunal of limited jurisdiction is void, when:

1. Action is taken under an ultra vires statute;

2. The subject matter of adjudication is beyond its competence or the order passed is such
which it has no authority to pass;

3. The adjudication is procedurally ultra vires being in violation of fundamental principles of

judicial procedure; and

4. Jurisdiction is assumed by wrongly deciding jurisdictional questions of law or fact.

It has already been seen that violation of fundamental provisions of the Act under which the
tribunal functions and fundamental principles of judicial procedure make the tribunal's order void.

A review of the relevant authorities on the point leads to the following conclusions:

1. An Exclusionary Clause using the formula "an order of the tribunal under this Act shall not be
called in question in any court" is ine ective to prevent the calling in question of an order of
the tribunal if the order is really not an order under the Act but a nullity.
ffi
ffi
ff
fi
ffi
fi
fi
fl
 2. Cases of nullity may arise when there is lack of jurisdiction at the stage of commencement of
enquiry e.g., when (a) authority is assumed under an ultra vires statute; (b) the tribunal is not
properly constituted, or is disquali ed to act; (c) the subject matter or the parties are such over
which the tribunal has no authority to inquire; and (d) there is want of essential preliminaries
prescribed by the law for commencement of the inquiry.

3. Cases of nullity may also arise during the course or at the conclusion of the inquiry. These
cases are also cases of want of jurisdiction if the word "jurisdiction" is understood in a wide
sense. Some examples of these cases are:

• When the tribunal has wrongly determined a jurisdictional question of fact or law;

• When it has failed to follow the fundamental principles of judicial procedure, e.g., has passed
the order without giving an opportunity of hearing to the party a ected;

• When it has violated the fundamental provisions of the Act, eg, when it fails to take into account
matters which it is required to take into account or when it takes into account extraneous and
irrelevant matters;

• When it has acted in bad faith; and

• When it grants a relief or makes an order which it has no authority to grant or make;" as also

• When by misapplication of the law it has asked itself the wrong question.

C: Rule of Conclusive evidence:

The Legislature may make certain matters non-justiciable by enacting rules of conclusive
evidence or conclusive proof. If by a legislative command proof of A is made conclusive evidence
or conclusive proof of B, the moment existence of A is established the court is bound to regard
the existence of B as conclusively established and evidence cannot be let in to show the non-
existence of B. In e ect the existence or non-existence of B after proof of A ceases to be
justiciable.

Section 5 of the Bombay Land Requisition Act, 1948 empowers the State Government to
requisition any building for public purpose, if the owner, landlord or tenant had not resided in the
building for a continuous period of six months prior to the order.

The section further provides that the State Government after holding such enquiry as it may deem
t will make a declaration in the order of requisition that the owner, landlord or the tenant has not
resided for a continuous period of six months prior to the order and that such declaration shall be
conclusive evidence that the owner, landlord or tenant has not so resided.

Similarly, section 6 of the same Act provides that if at the time of issue of a noti cation in respect
of any speci ed area, any premises are vacant or become vacant thereafter, State Government
may requisition the same for public purpose.

The section further provides that at the time of making an order of requisition the State
Government shall make such inquiry as it deems t and make a declaration in the order that the
premises were vacant or had become vacant and such a declaration shall be conclusive evidence
that the premises were or had so become vacant.

Izhar Ahmed v UOI:

The Supreme Court has laid down the test for determining whether a rule of irrefutable
presumption is a rule of evidence or a rule of substantive law. Gajendragadkar J in that
connection said: "In deciding the question as to whether a rule about irrefutable presumption is a
rule of evidence or not, it seems to us that the proper approach to adopt would be to consider
whether fact A from the proof of which a presumption is required to be drawn about the existence
of fact B is inherently relevant in the matter of proving fact B and has inherently any probative or
fi
fi
ff
fi
fi
ff
fi
persuasive value in that behalf or not.

If fact A is inherently relevant in proving the existence of fact B and to any rational mind it would
bear probative or a persuasive value in the matter of proving the existence of fact B then a rule
prescribing either a rebuttable or irrefutable presumption in that behalf would be a rule of
evidence. On the other hand, if fact A is inherently not relevant in proving the existence of fact B
or has no probative value in that behalf and yet a rule is made prescribing for a rebuttable or an
irrefutable presumption in that connection that rule would be a rule of substantive law and not a
rule of evidence."

The aforesaid discussion relating to the e ect of a conclusive evidence clause is subject at least
to two quali cations. A conclusive evidence clause may be held to be invalid as an unreasonable
restriction of the fundamental rights. In such a situation it is obvious that it will have no e ect at
all. Further, the insertion of such clauses in statutes conferring power may fail to shut out basic
defect of jurisdiction in exercise of the power and may also be ine ective to bar an attack on the
ground of fraud or colourable exercise of power
fi
ff
ff
ff
 Question 11: Explain the principles regarding
retrospective operation of statues.
Ans: Introduction: There is a legal maxim; ‘A new law ought to be prospective, not retrospective in
its operations.’ Ordinarily, a legislature has power to make prospective laws, but Art.20 of the
Indian Constitution, 1950 provides certain safeguards to the persons accused of crime and so Art.
20(1) of the Indian constitution imposes a limitation on the law making power of the constitution. It
prohibits the legislature to make retrospective criminal laws however it does not prohibit a civil
liability retrospectively i.e. with e ect from a past date. So a tax can be imposed retrospectively.

Clause (1) of the Article 20 of the Indian Constitution guarantees rights against ex-post facto laws.
It provides that “ no person shall be convicted of any o ence except for violation of a law in force
at the time of the commission of the act charged as an o ence, nor be subjected to a penalty
greater than that which might have been in icted under the law in force at the time of the
commission of the o ence.” The American Constitution also constitutes a similar provision
prohibiting ex-post facto laws both by the Central and State legislatures.

Prospective Operation of Statues:

The dictionary meaning of the word prospective with reference to statutes shows that it is
concerned with or applying the laws in future or atleast from the date of commencement of the
statute.

I.C. Golak Nath Vs. State of Punjab:

In this case Supreme Court held that the Parliament had no power to amend the fundamental
rights. Chief Justice Subba Rao posed the questions as to when Parliament could not a ect
fundamental rights by enacting a bill under its ordinary legislative process even unanimously, how
could it then abrogate a fundamental right with only a two third majority and while amendment of
less signi cant Articles of the Constitution require rati cation by a majority of States of the Union,
how could a fundamental right be amended without this requirement being ful lled.

The learned judge was of the view that the word 'law' Art. 13 (2) means both ordinary law as well
as constitutional law. Consequently, the state was not empowered to make any constitutional
amendment which takes away or abridges fundamental right as 'law' includes 'amendment' as
well.

Thus, while holding that the Parliament was not empowered to amend fundamental rights, the ve
learned judges jointly declared that the principle would operate only in future and it had no
retrospective e ect. Therefore, the name 'prospective overruling'.

The e ect of the decision was that all amendments made with respect to the fundamental rights
till the day of the decision in the case would continue to remain valid and e ective, and after that
date the Parliament would have no power to amend any of the fundamental rights contained in
Part III of the Constitution.

Restrictions on the Applications of the Doctrine of Prospective Overruling:

a. That the principle of prospective overruling would for the time being used in constitutional
matters only;

b. That the Supreme Court alone, and no other court, would have the authority to apply the
principle; and

c. The scope of the prospectively to be imposed is a matter of discretion for the Supreme Court
which is to be moulded in accordance with the justice of the cause or matter before it.
ff
fi
ff
ff
ff
fl
fi
ff
ff
ff
fi
ff
fi
 Thus, the principle of prospective overruling recognises the role of the Supreme Court with
respect to both law and policy making. The area of application of this principle is also quite
narrow in the sense that it has been applied only in respect of constitutional amendment.

The principle also envisages that an overruling decision shall not a ect intermediate transactions
made on the basis of the overruled decision but will apply to future matters. In other words, a law
declared invalid may not have any repercussions on the transactions arid vested rights already
long settled in the past but may operate only with respect to transactions and rights likely to come
up in future, that is to say, after the judicial invalidation.

While retrospective overruling could often result to harsh results when vested rights are interfered
overruling could often result to harsh results when vested rights are interfered with or when
actions have already been taken in accordance with the then existing rules, prospective overruling
does away with such hardships.

Retrospective Operation of Statues:

Retrospective generally means to take a look back at events that already have taken place. The
term is used in situations where the law (statutory, civil, or regulatory) is changed, altered or
reinterpreted, a ecting acts committed before the alteration. When such changes make a
previously committed lawful act unlawful in a retroactive manner, and are known as an ex post
facto law or retroactive law.

Retrospective operation of law therefore means application of law to facts or actions which exist
even prior to the date the said law is promulgated. It takes into its ambit activities existing prior to
the date of the new law and thus operates from a date earlier than the date they come into e ect.

Doctrine Of Retrospective Operation of Statues:

Retrospective operations implies to the application of law to facts or actions which existed prior
to the enactment of the said law. Such laws change or alter the legal consequences of acts which
took place prior to its enactment.

A retrospective law takes away or impairs an existing right by creating or imposing a new liability
for an act committed before the enactment of a law. However retrospective operation of law does
not apply to penal provisions.

A retrospective legislation is contrary to the general principle of prospective operation of law

which regulates future acts without changing the character of past transactions carried on upon
the faith of the then existing law.

Article 20 (1) of the Constitution of India provides protection against retrospective operation of law
commonly known as ex post facto law which changes the legal consequences of actions
committed before the enactment of the law.

The question which is faced during the applicability of retrospectively is whether a statue or law
should be given a retrospective e ect which takes away or impairs an existing right or imposes a
new liability.

Application of Retrospective Operation of States:

In most legal systems, retrospective laws which punish the accused for acts, that were lawful
when committed, are rare and not permissible. More commonly, changes retroactively worsen the
legal consequences (or status) of actions that were committed, or relationships that existed, by
bringing it into a more severe category than it was in when it was committed; by changing the
punishment or recompense prescribed, as by adding new penalties, extending sentences, or
increasing nes and damages payable; or it may alter the rules of evidence in order to make
exoneration more di cult than it would have been.
fi
ff
ffi
ff
ff
ff
 On the other hand, retrospective laws which deal with amnesty may decriminalize certain acts and
grant pardon by reducing punishments or change possible consequences for unlawful acts
retroactively by repealing previous laws and making it no longer applicable to situations to which
it previously was, even if such situations arose before the law was repealed.

A Law does not become retrospective, only because a part of the requisite for its action is drawn
from a time antecedent to its passing. In some cases where a new o ence is created or a penalty
is increased, the legislature is not prevented from enacting an ex post facto law, but if any such
law takes or impairs any vested right acquired under an existing law or creates a new obligation,
imposes a new duty or attaches a new disability in respect to the transactions on considerations
already past, such laws must in express terms state that it is to be applicable retrospectively and
the necessary implication of such retrospectively shall be borne out from the language employed
by the Legislature.

Ex-Post Facto Law:

The term Ex-Post Facto, retroactive and retrospective are synonyms in judicial use and such
terms makes the law look backs on acts which have already taken place. It changes the legal
consequences of past events as if the law had been di erent when the event took place and
imposes retrospectively upon acts already done or increase penalties.

In relation to criminal law, it may criminalize actions that were legal when committed or it may
aggravate the crime by bringing it into a more severe category than it was before or it may
increase the punishment of a crime by adding new penalties or extending the terms or it may alter
the rules of evidence in order to make conviction for a crime more likely than it would have been
at the time of the action for which a defendant is prosecuted.

A law may have an ex post facto e ect without being technically ex post facto. For example,
when a law repeals a previous law, the repealed legislation no longer applies to the situations it
once did, even if such situations arose before the law was repealed. Ex post facto laws are seen
as a violation of the rule of law as it applies in a free and democratic society.

Most jurisdiction do not permit retrospective legislation to come into force, though some have
suggested that judge -made law is retrospective as a new precedent applies to events that
occurred prior to the judicial decision.

The principle of prohibiting the continued application of these kinds of laws is also known as
nullumcrimen, nullapoena sine praevialegepoenali, which means that there exists no crime and no
punishment without a pre -existing penal law.

In some nations that follow the Westminster system of government, such as the United Kingdom,
ex post facto laws are technically possible as the doctrine of parliamentary supremacy allows
parliament to pass any law it wishes. However, in a nation with an entrenched bill of rights or a
written constitution, ex post facto legislation may be prohibited.

Criminal Liability:

Mostly applicability of Ex-post facto laws to criminal liability is frowned upon. A canon of
interpretation of penal provisions does not permit penal provisions to have retrospective e ect of
law. A penal character in certain o ences makes certain o ences punishable as o ences for the
rst time; usually no case is maintainable under such a circumstance as respect to acts done
before the commencement of such an act.

To punish a person for his act which was not an o ence at the time of committing the act, a
subsequent legislation which came into operation after the commission of the act will per se be
unconscionable besides amounting to negation of fair play and justice.
fi
ff
ff
ff
ff
ff
ff
ff
ff
Vijay vs. State of Maharashtra:

The Supreme Court held that a penal statue which creates new o ences are always prospective,
but penal statues which create new disabilities, though ordinarily prospectively are interpreted to
be retrospective in nature where there is a clear intendment that they are to be applied to past
events.

Conclusion:

It is now settled that unless the terms of a statute expressly so provide or necessarily require it,
retrospective operation should not be given to a statute so as to take away or impair an existing
right or create a new obligation or impose a new liability otherwise than as regards matters of
procedure.

The general rule is that all statutes other than those which are merely declaratory or which relate
only to matters of procedure or of evidence are prima facie prospectively and retrospective
operation should not be given to a statute so as to a ect, alter or destroy an existing right or
create a new liability or obligation unless that e ect cannot be avoided without doing violence to
the language of the enactment. If the enactment is expressed in language which is fairly capable
of either interpretation, it ought to be construed as prospective only.

To sum up, it is now settled and con rmed by a Constitution Bench of the Hon‘ble Supreme
Court, that unless the language of the statute expressly so provides it can only be construed to be
prospective in its operation, the only exceptions being in case of declaratory or clari catory
amendments or statutes.
fi
ff
ff
ff
fi
 Question 13: Why should penal statues be constructed
in a strict sense? Examine
Ans: Introduction: A statute may in certain aspects be a penal enactment and in certain others a
counteractive one. In respect of those provisions which are approved on the pain of punishment
for a crime, the rule of strict construction in the limited sense may be applied. At any rate, as
undue e ort to construe such a provision liberally to encourage the bene cent purpose behind it
may be e ectively counterbalanced on deliberation that a breach thereof leads to penal
consequences.

De nition: Salmond: “A process by which the Court seeks the meaning of Legislature through the
medium of authoritative forms in which it expresses”.

The manner, in which the courts have been interpreting penal statutes, has been changing over
time. There was a point where it was believed that a penal statute had to be construed strictly in
favor of the accused. With the ux of time tow, contradictory developments have in uenced the
interpretation of penal statutes.

A Court of law is bound to proceed upon the assumption that a legislature is an ideal person that
does not make mistakes. It is the duty of the Court to interpret the language actually employed
and to determine the intention of the legislature from such language and where there is no
ambiguity about the language actually employed, neither the recommendation if the Law
Commission, nor the aims and objects set out in the Statement of Objects and Reasons can be
brought in aid or can be allowed to in uence the natural grammatical meaning of the statute as
enacted by the Parliament.

The rule of the strict interpretation of penal statutes is said to be founded on the tenderness of the
law for the rights of individuals and on the plain principle that the power to de ne a crime and
ordain its punishment is vested in the legislature and not in the judicial department. It is a
reasonable expectation that the legislature will manifest its intention with reasonable clarity in
penal statutes.

Maxwell: The rule of a strict interpretation of penal statutes manifests itself in four ways[5]—

1. Express language is necessary for the creation of criminal o ences; therefore, no action is to
be deemed criminal unless it is clearly made so by words of the statute concerned. But it is
not necessary that a particular penalty is speci ed in order that an act or omission may
constitute an o ence.

2. The words setting out the elements of an o ence are to be strictly construed. And if there is
any reasonable doubt or ambiguity it will be resolved in favor of the person charged. A
reasonable interpretation which will avoid the penalty must be adopted. If there are two
reasonable constructions the court must give the more lenient one. The court must always see
that the person to be penalized comes fairly and squarely within the plain words of the
enactment.

3. Punishments can be imposed only if the circumstances of the case fall clearly within the
words of the enactment.

4. Similarly, statutes dealing with jurisdiction and procedure are, if they relate to the in iction of
penalties, strictly construed.

The rule that all penal statutes must be strictly construed has been explained by Lord Justice
James in a case speaking for the Privy Council thus

Strict construction of a penal statue means that it is to be construed narrowly in favour of the
person proceeded against. This rule implies a preference for the liberty of the subject in case of
ambiguity in the language of the provision. It is a well-founded principle that if the words used in a
fi
ff
ff
ff
fl
fl
ff
fi
ff
fi
fi
fl
fl
 criminal statute are reasonably capable of two constructions, the construction which is favourable
to the accused should be preferred but in constructing the relevant words it is obviously
necessary to have due regard to the context in which they have been used.

M.U Joshi v M. V Shimpi:

The appellant was convicted under section 16 of the Prevention of Food Adulteration Act 1954 for
selling adulterated butter. He contended that it was not buttered 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. Further, the Act is a penal statute the word butter had to be strictly construed in
favour of the accused.

State of Andhra Pradesh vs. Nagoti Venkatarma:

It has been held by the supreme court that in the interpretation of penal provisions, Strict
construction is required to be adopted and if any real doubt arises, necessarily the reasonable
bene t of the doubt would be extended to the accused.

Seksaria Cotton Mill Limited Company v State of Bombay:

As per a noti cation issued under the Essential Supplies Act 1946, every manufacturer was
required to submit true and accurate information about his dealings; and delivery was de ned to
mean actual physical delivery. The appellant, who had sold some bales to the purchaser who did
not take delivery because of some dispute with the appellant, asked his agent to keep the bales in
godown pending settlement. The appellant entered those bales as delivered in his return book.

The appellant was convicted by the High Court for not giving actual physical delivery. Allowing the
appeal, the Supreme Court said that when two reasonable interpretations are possible of a penal
statute, that which favours the accused should be accepted. It was held that since the goods
were actually delivered to the agent, the requirements under the Act were ful lled without straining
the language.

Chinubhai vs State of Bombay:

Is an important case in this respect. In this case, several workers in a factory died by inhaling
poisonous gas when they entered into a pit in the factory premises to stop the leakage of the gas
from a machine. The question was whether the employer violated section 3 of the Factories Act,
which says that no person in any factory shall be permitted to enter any con ned space in which
dangerous fumes are likely to be present.

The Supreme Court, while construing the provision strictly, held that the section does not impose
an absolute duty on the employer to prevent workers from going into such area. It further
observed that the fact that some workers were present in the con ned space does not prove that
the employer permitted them to go there. The prosecution must rst prove that the workers were
permitted to enter the space to convict the accused.

Conclusion:

A statute may in certain aspects be a penal enactment and in certain others a counteractive one.
In respect of those provisions which are approved on the pain of punishment for a crime, the rule
of strict interpretation of penal statutes in the limited sense may be applied. At any rate, as undue
e ort to construe such a provision liberally to encourage the bene cent purpose behind it may be
e ectively counterbalanced on deliberation that a breach thereof leads to penal consequences.
ff
ff
fi
fi
fi
fi
fi
fi
fi
fi
 Question 14: Explain the internal aids of interpretation.
Ans: Introduction: In India the power to make laws is given in the hands of the legislature. The
court has the power to implement these laws and serve justice. There is a separation of power
which means that courts cannot play the role of making laws and the legislature cannot play the
role of courts.

It is presumed that that the laws made by the legislature are clear and unambiguous. However in
some case where the meaning of a provision is unclear then court has been given power to nd
the intention of the legislature to form a clear meaning. This brings the role of interpretation.
Internal and External Aids are two forms of interpretation which helps courts in nding out
intention of legislature.

Meaning: Interpretation means the process used to ascertain the meaning of the statute by
ascertaining the intention of the legislature for the enactment of that statute. It is used in case the
meaning of an enactment is unclear and there is a lot of ambiguity. If the meaning of the words in
the enactment is clear then there is no need for interpretation.

Salmond says that “interpretation is the process by which court seeks to ascertain the meaning of
legislature through medium of authoritative form in which it is expressed”.

Need for interpretation: The need of interpretation only arises is cases where meaning of an
enactment is not clear and is ambiguous. This is case where a particular enactment gives more
than one meaning. So by interpretation we can nd the true meaning of enactment. This helps us
in nding iut the true intention of the legislature.

The court has their own discretion while interpretation but they should focus only in nding out the
intention of legislature and should not change the meaning of an enactment according to their
own thinking. This helps in achieving the justice and helps in nding the logical meaning to an
enactment.

Internal Aid: The internal aids to interpretation are those which may be contained in the statute
itself forming a part of it or may not form the part of the statute. They are generally taken as
important aid to interpretation whenever there is ambiguity in the language of the statute and
meaning of the words are not clear. However they have no role to play in case where meaning of
the statute is clear. They are much more valuable than external aid to interpretation.

1. Title: The role of the title is to give some description of the act. It can further be divided into
two parts-

• Short Title: It generally does have any role to play in the interpretation and noting can be
ascertained from it. It only gives us the name of the act and nothing else.

Eg: The Transfer of Property Act, 1882 ,Code of Criminal Procedure, 1973 etc.

• Long Title: It can some use in case where there is the confusion in the meaning of the statute. It
tells us about the general object for which the act has been enacted more like preamble only.

Eg: The Transfer of Property Act, 1882 has a long title saying that-“An Act to amend the law
relating the Transfer of Property by act of parties”.

ManoharLal v. State of Punjab:

It this case it was observed that the scope of the act can be decided with the help of the long
title and help can be taken from it for interpretation.

KedarNath v. State of West Bengal:

It this case court took the help of the long title while interpreting Section 4 of West Bengal
fi
fi
fi
fi
fi
fi
 Criminal Law Amendment Act, 1949 and held that it is the discretion of the State government to
try any o ence under special procedure in special courts.

2. Preamble: The preamble is very useful aid to interpretation as it tells us about the true
intention of the legislature for which the act was enactment. It roles comes into play in case
where the meaning of the enactment is not clear and more than one meaning is formed but
not otherwise.

It doesn’t extend the scope of an enactment nor does it restrict it. Courts in the past had
taken help from the preamble for interpretation however its role has decreased in the recent
times.
For eg.- The Indian Evidence Act, 1872 has preamble saying that “Whereas it is expedient to
consolidate, de ne and amend the law of Evidence; it is hereby enacted as follows”.

Brett v. Brett:

In this case it was observed that preamble can be used to nd the intention of the legislature.
It forms the spirit of the act. It tells us about all the mischiefs that the legislature wants to
remove.

Rashtriya Mill MazdoorSangh v. NTC:

It was observed that preamble help can only be taken when a provision is ambiguous. When a
provision is clear then preamble help cannot be taken for expanding or restricting the scope of
a provision.

3. Marginal Notes: They are inserted generally at the side of the sections and have no useful role
to play interpretation. Most of the time it have been seen that they have not made by the
people who have enacted the provision and are added in the subsequent stages by other
people other than legislators. Courts have refrained from using them for interpretation.

4. Provisos: It only excludes the things from the particular section or provision which would
otherwise would have been included in it. It has no other role to play neither it extends the
meaning or scope of the section. It is restricted only to the section to which it is part and
cannot have e ect on other provisions.

For eg.- Section 55 of The Code of Civil procedure, 1908 tells about arrest and detention but
has some proviso to it such as no arrest can take place after sunset or before sunrise, no out
door of dwelling house should be broken etc.

CIT v. Ajax Products Ltd:

It was observed that the proviso restricts the main provision, however it doesn’t have its own
independent existence and is dependent upon the provision to which it is attached. It should
not be read in con ict with the main provision.

S. SundaramPillai v. V.R. Pattabiraman:

In this it was observed that proviso exclude certain things from the main provision. It is an
integral part of the provision and can impose conditions on it.

5. Headings: Heading are put up at the start of the group of sections relating to a particular
o ence or procedure. Each chapter in an act consists if its own heading which act as a
preamble to it.For eg.- The Indian Evidence Act, 1872 Chapter VII has a Heading of “Burden of
Proof” which tells us the various aspects of burden of proof.

It is useful is cases where the meaning of the provision is not clear but where there is no
ambiguity then it has no role to play. It is as useful as preamble for interpretation of provisions
to which it is headed.
ff
ff
ff
fi
fl
fi
 Iqbal Singh Marwah v. Meenakshi Marwah:

It was observed that headings cannot be used for interpretation when the meaning of a
provision is clear. However the still form an important part of the act and are treated as the
preambles to the provisions to which it is headed.

6. Explanation: Explanations are added to sections so that they can clarify the meaning of certain
words in which uncertainty may arise in future. They do not extend the scope of the section to
which it is attached and is restricted to that section only to which it is part. They do not have
much role in interpretation and only clarify the provision.

Bengal Immunity Company v. State of Bihar

It was observed that the exception should not extend the meaning of the main provision. It
should be read with the main provision. It forms the part of the main provision so it can be
used for ascertaining the intention of the legislature.

7. Exceptions and Savings Clause:

Exceptions are created to exclude certain things from a particular provision which would
otherwise the part of it. They do not expand the scope the scope of section nor add any
di erent meaning to the words. They just take away certain things from a particular provision.

For eg.- Section 300 of Indian Penal Code speci es exception to murder which are murder
done by exercising right of private defence, murder under grave and sudden provocation etc.

Saving clause on the other hand is generally appended where there is a case of repeal and re-
enactment.

8. Illustrations: Illustrations are generally given in the form of examples including situations that
occur in real life. They do not form the part of an enactment but still they are very useful aid to
interpretation. They can help us in understanding the real meaning of an enactment in case
where there is some uncertainty. They illustrate the intention of the legislature in the form of
facts and gives answer to situations arising in those facts. It cannot extend the meaning of an
enactment.

Dagdu v. State of Maharashtra:

There has always been a con ict between the illustration (b) of Section 114 and Section 133 of
the Evidence Act. Section 133 says that accomplice evidence without corroboration is good
enough for conviction whereas Section 114 Illustration (b) says that accomplice evidence
without corroboration is not good enough for conviction.

General rule on this formed by the court is that it is always better to have the evidence of
accomplice corroborated with other evidence for conviction.

9. De nitions: Generally we take the ordinary meaning of the words while determining the
meaning of the words given in the enactment. However in some cases where the de nition
given by the legislatures forms di erent meaning of the words other than the ordinary
meaning. In such cases the de nition given by the legislatures has to be usedand it will
override the ordinary meaning.

Conclusions:
We can conclude that the need of interpretation arises only when then ambiguity in a provision
and not otherwise. While interpretation we determine the intention of the legislature. After
considering all the aids to interpretation we can conclude that internal aid of interpretation is more
reliable source of interpretation than the external aid to interpretation. Internal aid forms the part
of the enactment whereas external aid is separate from the provision. Internal aids are considered
as rst option for interpretation and when they fails only then external aids come into play.
ff
fi
fi
fl
fi
ff
fi
fi
 Question 14: Explain the external aids of interpretation.
Ans: Introduction: In India the power to make laws is given in the hands of the legislature. The
court has the power to implement these laws and serve justice. There is a separation of power
which means that courts cannot play the role of making laws and the legislature cannot play the
role of courts.

It is presumed that that the laws made by the legislature are clear and unambiguous. However in
some case where the meaning of a provision is unclear then court has been given power to nd
the intention of the legislature to form a clear meaning. This brings the role of interpretation.
Internal and External Aids are two forms of interpretation which helps courts in nding out
intention of legislature.

Meaning: Interpretation means the process used to ascertain the meaning of the statute by
ascertaining the intention of the legislature for the enactment of that statute. It is used in case the
meaning of an enactment is unclear and there is a lot of ambiguity. If the meaning of the words in
the enactment is clear then there is no need for interpretation.

Salmond says that “interpretation is the process by which court seeks to ascertain the meaning of
legislature through medium of authoritative form in which it is expressed”.

Need for interpretation: The need of interpretation only arises is cases where meaning of an
enactment is not clear and is ambiguous. This is case where a particular enactment gives more
than one meaning. So by interpretation we can nd the true meaning of enactment. This helps us
in nding out the true intention of the legislature.

The court has their own discretion while interpretation but they should focus only in nding out the
intention of legislature and should not change the meaning of an enactment according to their
own thinking. This helps in achieving the justice and helps in nding the logical meaning to an
enactment.

External aids: The role of external aids to interpretation comes into play in case where internal aid
fails. Internal aid is considered more valuable in interpretation as compared to the external aid.
External aid are doesn’t form a part of the enactment itself like some internal aid and neither they
are connected to any speci c provision.

However in some cases where internal aid fails, help can be taken from external aids to ascertain
the intention of the legislature as generally they talk about the history of an enactment and
reasons for its introduction.

B. PrabhakarRao v. State of Andhra Pradesh:

In this case it was observed that external aid comes into play only when the internal aid fails but
not otherwise. It is for the purpose of the justice the external aids should be used. Legislative
history, committee reports, debates etc may be considered for the same.

1. Dictionaries: Whenever the meaning of a particular word is not clear the help may be taken
from the dictionaries by the court to ascertain the meaning of the word. No strict approach is
used in ascertaining the meaning. The ordinary meaning of the word can to be found with the
use of dictionary.

Alamghir v. State of Bihar:

In this case the interpretation of Article 498 of Indian Penal Code was done. The word “detain”
was under consideration. It was accompanied by other words such as takes or entices or
conceals. Now in ordinary sense the word detain would mean without consent of the person
detained. But the court observed that Section 498 protect the interests of husband. So, detain
would include the case of taking away the wife from her husband even with her consent.
fi
fi
fi
fi
fi
fi
fi
2. Statement of Objections:

This is not considered as a reliable source to interpretation. It tells us about the reasons and
intention for bringing the bill into the legislature. However after the bill has been introduced it
still have to be passed by both the houses due to which there is always a chance that the bill
gets changed along with its intention at certain point of time. Bill goes through many
processes before it gets passed, so the intention at the start for introducing the bill cannot be
relied upon. It also does not show the will of majority.

Thus, if the meaning of a provision is clear then it has no role to play but if it a case where the
meaning is ambiguous then only some help can be taken from it to ascertain the intention of
the legislature.

State of West Bengal v. Union of India:

In this it was observed that when the bill is brought in the Parliament it consist of some
statement of objects and reasons which can be used to understand the background of the Act
and can only be used in a limited sense. It cannot be relied upon as an aid to interpretation
and it doesn’t tell legislative intention.

3. Parliamentary History and Facts:

This includes all the debates in the parliament, reports of committees, letters etc. In traditional
English practise it was considered that parliamentary history cannot be considered while
interpretation. The modern view is di erent which says that parliamentary history and facts
may be considered for interpretation in order to determine the intention of the legislature while
passing an act. However it can also be used in case of ambiguity and not in case where
meaning of a provision is clear.

Express Newspapers Pvt. Ltd. v. Union of India

In this case it was observed that the Parliament history may be considered for the purpose of
the interpretation in case where the meaning of a provision is not clear.

It contains the following things:

• Reports: They are generally not considered as useful tool to interpretation. Courts refrain
from using the reports for interpretation. However in some cases where ambiguity arises in a
provision then court can refer these reports which are formed by committees which advices
the legislature at the passing of an act. They can help in determining the intention of the
legislature.

G. Sekar v. Geetha

In this case the court observed that the reports such as of Law Commission of India can be
considered for interpretation if a provision in ambiguous.

• Parliamentary Debates: These include the debates that take place in the legislature while
passing of the act. In case of ambiguity these can be used by the courts for interpretation to
determine the reasons for which the act was passed and the mischief which the legislature
wanted to cure.

S.R. Chaudhuri v. State of Punjab and Ors

In this case the debates of the Constituent Assembly were taken into consideration for the
determination of provisions. It was stated that through it the intention of the legislature can
be ascertained.

• Bills: This contains the stage of debate before passing of the act by the minister. However
this is not considered as reliable form of interpretation because the bill goes through a lot of
ff
 amendments once it goes through both the houses in parliament and neither it shows the
will of majority. So only some help can be taken from it.

4. Textbooks: Sometimes courts while determining a law takes help from the textbooks. But this
view has been criticized because textbook contains the personal views of the author and
di erent textbooks have di erent opinions. Personal views of the author cannot tell us about
the intention of the legislature. Thus is not a reliable source of interpretation.

5. Foreign Decisions: In case when there is uncertainty regarding a point on law then reference
can be taken from the foreign decisions, where there is same system of law is being followed
on that point of uncertainty as it is followed in India. They will have a binding force upon the
Indian courts.

6. Economic, Scienti c, Political and Social Changes: Today’s environment is more dynamic than
before due to which lot of development and changes occur as time passes by. Many
situations are not anticipated by the legislature at the time of passing of the act which may
arise in future due to these changes. Thus, enough discretion and exibility is given to courts
to interpret according to the needs of the present environment while seeing these changes.

S.P. Gupta v. Union of India:

In this case it was observed that the interpretation of a enactment must always take according
the dynamic environment so that justice can be served and judges must adapt to the changes
in the environment.

Conclusion:

We can conclude that the need of interpretation arises only when then ambiguity in a provision
and not otherwise. While interpretation we determine the intention of the legislature. After
considering all the aids to interpretation we can conclude that internal aid of interpretation is more
reliable source of interpretation than the external aid to interpretation. Internal aid forms the part
of the enactment whereas external aid is separate from the provision. Internal aids are considered
as rst option for interpretation and when they fails only then external aids come into play.
ff
fi
fi
ff
fl
 Question 16: What is temporary statue? Explain the
e ects of expiry of temporary statues.
Ans: Introduction: A statue is either perpetual or temporary. It is perpetual when no time is xed
for its duration, and such a statue remains in force until ti repeal which may be express or implied.
A perpetual statue is not perpetual in the sense that it cannot be repealed; it is perpetual in the
sense that it is not abrogated e ux of time or by non-user.

A statue is temporary when its duration is only for a speci ed time; and such a statue expire on
the expiry of the speci ed time unless it is repealed earlier. Similarly because the purpose of a
statue, as mentioned in its preamble, is temporary, the statue cannot be regarded as temporary
when no xed period is speci ed for its duration.

E ect of Expiry of Temporary Statues:

When a temporary Act expires, section 6 of the General Clauses Act, 1897, which in terms is
limited to repeals, has no application. The e ect of expiry, therefore, depends upon the
construction of the Act itself. The extent of the restrictions imposed and the duration of its
provisions, are matters of construction.

a. Legal proceedings under expired statue:

A question often arises in connection with legal proceedings in relation to matters connected
with a temporary Act, whether they can be continued or initiated after the Act has expired. The
answer to such a question is again dependent upon the construction of the Act as a while.
The Legislature very often enacts in the temporary Act a saving provision similar in e ect to
Section 6 of the General Clauses Act, 1897.

S.Krishnan v State of Madars:

But in the absence of such a provision the normal rule is the proceedings taken against a
person under a temporary statue ipso facto terminate as soon as the statue expires.

A person, therefore, cannot be prosecuted and convicted for an o ence against the Act after
its expiration in the absence of a saving provision; and if a prosecution has not ended before
the date of expiry of the Act, it will automatically terminate as a result of the termination of the
Act.

R v Wicks:

The appellant Wicks was tried and convicted for violating in 1943-44 the Defence (General)
Regulations, 1939, made under the Emergency Powers (Defence) Act, 1939. The trial took
place in May, 1946, when the Emergency Powers (Defence) Act had come to an end because
of it expiry in February, 1946.

Section 11(1) of the act (as amended) read: ‘Subject to the provisions of the section, this Act
shall continue in force until the expiration of the period of six months beginning with the
twenty-fourth day of August, 1945, and shall then expire.

Section 11(3) Provided: The expiry of the Act shall not a ect the operation thereof as respects
things previously done or omitted to be done. The question int the case was whether these
words in section 11(3) authorised the prosecution and conviction of the o ender
notwithstanding the expiration of the Act.

The Court of Criminal Appeal accepted the principle that “but for the provisions in Section
11(3) it could hardly be contended that a person could be convicted of an o ence against the
Act after tis expiration.
ff
ff
fi
fi
fi
ffl
ff
ff
fi
ff
ff
ff
ff
fi
 As to the e ect of section 11(3) it was conceded that the sub-section operated only on
matters past and completed while the Act was in force. Refuting this argument the court said:

“While, no doubt it does cover completed acts or transactions, we think the language is wide
enough to make prisons of the act apply, or, in the language of the section, to operate, in
respect of any act done before the expiration, even though not perfected or completed till
afterwards.”

And proceeding further, it was observed: “We are bound to construe the sub-section as being
that the expiration of the Act is not to a ect the liability or punishment incurred under the
enactment or the prosecution of legal proceedings for the purpose of in icting that
punishment.”

b. Noti cations, Orders, Rules, etc. made under temporary statue:

When a temporary Act expires, the normal rule is that any appointment, noti cation, order,
scheme, rule, from or by-law made or issued under the Act will also come to an end with the
expiry of the Act and will not be continued even if the robins of the expired Act are re-enacted;
the reason being that section 24 of the General Clauses Act, 1897, does not apply to such a
situation.

Similarly, a person’s detention under a temporary statue relation to preventive detain will
automatically come to an end on the expiry of the statue.

c. Expiry does not make the state dead for all purposes:

A temporary statue, even in the absence of saving provision like Section 6 of the General
Causes Act, is not dead for all purposes. The question is essentially one of construction of the
Act. The nature of the right and obligation resulting from the revisions of the temporary Act
and their character, may have to be regarded in deterring whether the said right or obligation
is enduring or not.

Thus, a person who has been prosecuted and sentenced during the continuance of a
temporary Act for violating its provisions cannot be released before he serves out his
sentence, even if the temporary Act expires before the expiry of full period of the sentence.

Under section 4 of VI Geo. 4, c. 133, every person who held a commission or warrant as
surgeon or assistant surgeon became entitled to practice as an apothecary without having
passed the usual examination.

This statue was temporary and expired on 1st August, 1826. it was held that a person who
had acquired a right to practice as an apothecary under the Act without passing the usual
examination was not deprived of that right on expiration of the Act.

Gooderham & Worts v C.B. Corporation:

A decision of the Privy Council, in an appeal form Ontario, also illustrates that a temporary
Act, after its expiry is not to be treated for all purposes as if it had even been enacted. In that
case the power of the Canadian Radio Broadcasting Commission to acquire existing private
stations by lease was curtailed by a temporary Act, in that the power was expressly made
subject to the approval of the Governor in Council.

A lease was challenged after the expiry of the Act in a legal proceeding, on the ground the the
lease was invalid being not in accordance with the approval of the Governor in Council as
required by the expired Act.

This plea, though resisted on the ground that it could not be raised after expiry of the Act, was
sustained by the Privy Council on the view that the temporary Act was not for all purposes to
be treated as if it had never bene enacted.
fi
ff
ff
fi
fl
d. Repeal by a temporary statue:

When a temporary statue e ects a prepay of an existing statue, a question arises whether the
repealed statue revives on the expiry of the releasing statue. Section 11(1) and Section 38(2)(a)
of the Interpretation Act, 1899, in terms are limited to cases of repeals of a repealing
enactment and have no application to a case of the expiry of a repealing Act. As regards the
General Clauses Act, 1897, section 6(a), which corresponds to section 38(2)(a) of the
Interpretation Act, is also in terms limited to replies; and therefore has no application on expiry
of a repealing statue.

However, in section 7 of the General Clauses Act, which corresponds to Section 11(1) of the
Interpretation Act, the language is slimly di erent. By having regard to the context and the
setting of the section it appears also to be inapplicable to a case of expiry of the repealing
statute, will depend upon the construction of the repealing state.

State of Orissa v Bhupendra Kumar:

As regards the e ect of the repealing of an earlier Act made by a temporary Act, observed
Gajendragadakar,J: “The interior of the temporary Act in repealing the earlier Act will have to
be considered and no general or in exible rule in that behalf can be laid down.”

Gooderham & Worts v C.B. Corporation

In the Privy Council case already noticed, there are observations to the e ect that a real by a
temporary Act is prima facie only a temporary repeal by a temporary Act is prima Facie only a
temporary repeal resulting in revival of the replied provisions after the expiry of the repelling
Act. Those observations can be further observed in:

“The result is that on 31st March, 1936, the temporary legislation continued in the rst Act of
1933 replacing provisions of the principle Act of 1932 and substituting other provisions came
to an end not by the repeal of the temporary legislation by try the e ux of the prescribed time.

No question, as to the revival of the temporary replied provisions of the principal Act of 1932
by the repeal of repelling legislations, arises. The repeal, e ected by the temporary legislation,
was only a temporary repeal. When by the fair of Parliament the temporary repeal expired. the
original legislation automatically resumed its full force. No enactment of it was required.”

R.C.Jall v Union of India

But when a permanent Ordinance imposing a cess on coal was repealed by a temporary
Ordinance which speci cally applied the prisons of Section 6, general Classes Act, it was held
that the provisions of the replied Ordinance, which were continued for enforcing the right
acquired and obligations incurred before the repeal, did not expire with the expiry of the
repaying Ordinance. It seems to have been assumed n this case that the repeal, ought
brought about by a temporary Ordinance, was a permanent repeal.
ff
fi
ff
fl
ff
ff
ffl
ff
fi
Question 18: Explain the concept of pain and pleasures
as laid down by Jeremy Bentham.
Ans: Introduction: Jeremy Bentham is the person who propounded the principles of moral
legislations.

Meaning of Moral Legislations:

‘the rules of behaviour an individual or a group may follow out of personal conscience and that are
not necessarily part of legislated law in the United States.

Moral law is a system of guidelines for behaviour. These guidelines may or may not be part of a
religion, codi ed in written form, or legally enforceable. For some people moral law is synonymous
with the commands of a divine being. For others, moral law is set of universal rules that should
apply to everyone.

Concept of Pleasures and Pains and their Kinds:

Having represented what belongs to all sorts of pleasures and pains alike, we come now to
exhibit, each by itself, the several sorts of pains and pleasures. Pains and pleasures may be called
by one general word, interesting perceptions. Interesting perceptions are either simple or
complex. The simple ones are those which cannot any one of them be resolved into more:
complex are those which are resolvable into divers simple ones. A complex interesting perception
may accordingly be composed either,

1. Of pleasures alone:
2. Of pains alone: or,
3. Of a pleasure or pleasures, and a pain or pains together.

What determines a lot of pleasure, for example, to be regarded as one complex pleasure, rather
than as divers simple ones, is the nature of the exciting cause. Whatever pleasures are excited all
at once by the action of the same cause, are apt to be looked upon as constituting all together
but one pleasure.

The several simple pleasures of which human nature is susceptible, seem to be as follows:

1. The pleasures of sense seem to be as follows:

• The pleasures of the taste or palate; including whatever pleasures are experienced in satisfying
the appetites of hunger and thirst.

• The pleasure of intoxication.

• The pleasure of the organ of smelling.

• The pleasure of touch.

2. By the pleasures of wealth may be meant those pleasures which a man is apt to derive from
the consciousness of possessing any article or articles which stand in the list of instruments of
enjoyment or security, and more particularly at the time of his rst acquiring them; at which
time the pleasure may be styled a pleasure of gain or a pleasure of acquisition: at other times
a pleasure of possession.

3. The pleasures of skill, as exercised upon particular objects, are those which accompany the
application of such particular instruments of enjoyment to their uses, as cannot be so applied
without a greater or less share of di culty or exertion.
fi
ffi
fi
 4. The pleasures of amity, or self-recommendation, are the pleasures that may accompany the
persuasion of a man's being in the acquisition or the possession of the good-will of such or
such assignable person or persons in particular: or, as the phrase is, of being upon good
terms with him or them: and as a fruit of it, of his being in a way to have the bene t of their
spontaneous and gratuitous services.

5. The pleasures of a good name are the pleasures that accompany the persuasion of a man's
being in the acquisition or the possession of the good-will of the world about him; that is, of
such members of society as he is likely to have concerns with; and as a means of it, either
their love or their esteem, or both: and as a fruit of it, of his being in the way to have the
bene t of their spontaneous and gratuitous services. These may likewise be called the
pleasures of good repute, the pleasures of honour, or the pleasures of the moral sanction.

6. The pleasures of power are the pleasures that accompany the persuasion of a man's being in
a condition to dispose people, by means of their hopes and fears, to give him the bene t of
their services: that is, by the hope of some service, or by the fear of some disservice, that he
may be in the way to render them.

7. The pleasures of piety are the pleasures that accompany the belief of a man's being in the
acquisition or in possession of the good-will or favour of the Supreme Being: and as a fruit of
it, of his being in a way of enjoying pleasures to be received by God's special appointment,
either in this life, or in a life to come. These may also be called the pleasures of religion, the
pleasures of a religious disposition, or the pleasures of the religious sanction.

8. The pleasures of benevolence are the pleasures resulting from the view of any pleasures
supposed to be possessed by the beings who may be the objects of benevolence; to wit, the
sensitive beings we are acquainted with.

9. The pleasures of expectation are the pleasures that result from the contemplation of any sort
of pleasure, referred to time future, and accompanied with the sentiment of belief. These also
may admit of the same distinctions.

10. The pleasures of association are the pleasures which certain objects or incidents may happen
to a ord, not of themselves, but merely in virtue of some association they have contracted in
the mind with certain objects or incidents which are in themselves pleasurable.

Such is the case, for instance, with the pleasure of skill, when a orded by such a set of
incidents as compose a game of chess. This derives its pleasurable quality from its
association partly with the pleasures of skill, as exercised in the production of incidents
pleasurable of themselves: partly from its association with the pleasures of power.

Such is the case also with the pleasure of good luck, when a orded by such incidents as
compose the game of hazard, or any other game of chance, when played at for nothing. This
derives its pleasurable quality from its association with one of the pleasures of wealth; to wit,
with the pleasure of acquiring it.

Farther on we shall see pains grounded upon pleasures; in like manner may we now see
pleasures grounded upon pains. To the catalogue of pleasures may accordingly be added the
pleasures of relief: or, the pleasures which a man experiences when, after he has been enduring a
pain of any kind for a certain time, it comes to cease, or to abate. These may of course be
distinguished into as many species as there are of pains: and may give rise to so many pleasures
of memory, of imagination, and of expectation.

1. Pains of privation are the pains that may results from the thought of not possessing in the time
present any of the several kinds of pleasures. Pains of privation may accordingly be resolved
into as many kinds as there are of pleasures to which they may correspond, and from the
absence whereof they may be derived.

2. There are three sorts of pains which are only so many modi cations of the several pains of
privation. When the enjoyment of any particular pleasure happens to be particularly desired,
ff
fi
fi
ff
ff
fi
fi
 but without any expectation approaching to assurance, the pain of privation which thereupon
results takes a particular name, and is called the pain of desire, or of unsatis ed desire.

3. Where the enjoyment happens to have been looked for with a degree of expectation
approaching to assurance, and that expectation is made suddenly to cease, it is called a pain
of disappointment.

4. A pain of privation takes the name of a pain of regret in two cases:

• Where it is grounded on the memory of a pleasure, which having been once enjoyed, appears
not likely to be enjoyed again:

• Where it is grounded on the idea of a pleasure, which was never actually enjoyed, nor perhaps
so much as expected, but which might have been enjoyed (it is supposed,) had such or such a
contingency happened, which, in fact, did not happen.

The several pains of the senses seem to be as follows:

- The pains of hunger and thirst: or the disagreeable sensations produced by the want of suitable
substances which need at times to be applied to the alimentary canal.

- The pains of the taste: or the disagreeable sensations produced by the application of various
substances to the palate, and other superior parts of the same canal.

- The pains of the organ of smell: or the disagreeable sensations produced by the e uvia of
various substances when applied to that organ.

- The pains of the touch: or the disagreeable sensations produced by the application of various
substances to the skin.

- The simple pains of the hearing: or the disagreeable sensations excited in the organ of that
sense by various kinds of sounds: independently (as before,) of association.

- The simple pains of the sight: or the disagreeable sensations if any such there be, that may be
excited in the organ of that sense by visible images, independent of the principle of association.

- The pains resulting from excessive heat or cold, unless these be referable to the touch.
- The pains of disease: or the acute and uneasy sensations resulting from the several diseases
and indispositions to which human nature is liable.

- The pain of exertion, whether bodily or mental: or the uneasy sensation which is apt to
accompany any intense e ort, whether of mind or body.

5. The pains of awkwardness are the pains which sometimes result from the unsuccessful
endeavour to apply any particular instruments of enjoyment or security to their uses, or from
the di culty a man experiences in applying them.

6. The pains of enmity are the pains that may accompany the persuasion of a man's being
obnoxious to the ill-will of such or such an assignable person or persons in particular: or, as
the phrase is, of being upon ill terms with him or them: and, in consequence, of being
obnoxious to certain pains of some sort or other, of which he may be the cause.

7. The pains of an ill-name, are the pains that accompany the persuasion of a man's being
obnoxious, or in a way to be obnoxious to the ill-will of the world about him. These may
likewise be called the pains of ill-repute, the pains of dishonour, or the pains of the moral
sanction.

8. The pains of the memory may be grounded on every one of the above kinds, as well of pains
of privation as of positive pains. These correspond exactly to the pleasures of the memory.
ffi
ff
fi
ffl
 Of the above list there are certain pleasures and pains which suppose the existence of some
pleasure or pain, of some other person, to which the pleasure or pain of the person in question
has regard: such pleasures and pains may be termed extra-regarding. Others do not suppose any
such thing: these may be termed self-regarding. The only pleasures and pains of the extra-
regarding class are those of benevolence and those of malevolence: all the rest are self-regarding.

Of all these several sorts of pleasures and pains, there is scarce any one which is not liable, on
more accounts than one, to come under the consideration of the law. Is an o ense committed? It
is the tendency which it has to destroy, in such or such persons, some of these pleasures, or to
produce some of these pains, that constitutes the mischief of it, and the ground for punishing it.

It is the prospect of some of these pleasures, or of security from some of these pains, that
constitutes the motive or temptation, it is the attainment of them that constitutes the pro t of the
o ense. Is the o ender to be punished? It can be only by the production of one or more of these
pains, that the punishment can be in icted.
ff
ff
fl
ff
fi
 Question 18: Explain the principle of utility as the source
of legislation.
Ans: The principle of utility states that actions or behaviours are right in so far as they
promote happiness or pleasure, wrong as they tend to produce unhappiness or pain. Hence,
utility is a teleological principle. This once again raises some of the same basic issues of
associated with hedonism, as discussed in the earlier section on Teleological Theories.

Recall that a hedonist believes that the good life consists solely in the pursuit and experience of
pleasure or happiness. The feelings of pleasure and pain are biological events involving our
central nervous system, which are controlled by our cerebral cortex.

We obviously experience pleasure when we perform certain acts that ful ll biological functions
such as eating, drinking, and having sex. We also experience pleasure when we perform certain
intellectual activities, such as reading a philosophy textbook, playing guitar, or drawing a picture.

We sometimes, but not always, experience pleasure when we do the right thing. Conversely, we
experience pain when these functions are left unful lled.

Many utilitarians believe that pleasure and pain are objective states and can be, more or less,
quanti ed. Hedonistic terms like intensity, duration, fecundity, and likelihood, imply that pleasure
can be measured quantitatively, perhaps on a scale from 1-10, as part of a hedonistic calculus.

Classic Utilitarianism:

If you are a hedonist, the most important question is: "Whose pleasure counts the most?"
Classical utilitarians are altruists to the extent that they believe that the standard of right or wrong
is not the agent's own greatest happiness, but the greatest amount of happiness for the greatest
number of people. Therefore, the "Good" increases the number of persons experiencing pleasure
among members of a speci c group. The "Bad" increases the number of persons experiencing
pain. There are several interesting problems here:

A few years back, Cincinnati government o cials had a community vote on whether to use the
proceeds from a proposed sales tax increase to build two new sports stadiums for the Reds and
the Bengals. A classical utilitarian would have to examine how that expenditure would e ect
everyone in the community.

This determination entailed calculating beforehand the amount of pleasure and pain that the
various members of the community would experience as a result of building those stadiums; then
decide whether the bene ts (pleasures) outweigh the costs (pains)? Of course the primary
bene ciaries of the larger more modern stadiums would be the wealthy team owners, players,
perhaps a few downtown restaurant owners, parking lot owners etc. If the levy fails, at least one
of the teams will probably move to another city.

That would cause pain to some members of the community including fans, venders, parking lot
attendants etc. Defenders of the tax argued that even the retailers in the suburban malls
would bene t economically from keeping the sports teams. If they move they will lose customers
on game days.

The fundamental problem for utilitarianism is justifying the altruistic principle of self-sacri ce in
order to bene t others. Since, I do not attend the games played at the stadium, and will not
bene t from hot dog revenues, why should I contribute to either project? Under classical
utilitarianism, at least some members of the community must sacri ce his/her own interests for
the interests of others without bene ting personally. Indeed it is often the case that what turns out
to be in the public interest con icts with the private interests of some individuals. How can one
justify such altruism based on utilitarian principles?
fi
fi
fi
fi
fi
fi
fi
fl
fi
ffi
fi
fi
fi
fi
ff
 Sometimes, it is possible for an act to provide a large amount of quanti able pleasure for a few
persons at the cost of a small amount of quanti able pain for everyone else. Suppose, for
example, we have a small, but signi cant number of homeless children that could be helped by
imposing a small tax on everyone in Cincinnati.

A utilitarian would not be able to justify imposing that tax, unless it could be shown that more
people are helped than harmed. One way to get around this would be to count not only the
number of persons that experience pleasure and pain, but also weigh the intensity, duration,
fruitfulness, and likelihood of the pleasures involved. Hence, we might argue that if we weigh the
amount of pleasure that homeless children experience, as the result of providing them shelter,
against the minimal pain that tax payers experience, then we might rationally justify building that
shelter at public expense.

The problem with this approach is that at any given time, many individuals might bene t from a
speci c policy. Suppose that only the wealthy team owners would substantially bene t from
building the stadium and that the tax was very small, wouldn't we be able to justify building the
stadium for that wealthy team owner at the cost of a majority?

If so, on what basis could we justify building the shelter and not the stadium? Therefore, if
utilitarianism assigns weight to particular pleasures and pains, rather than merely merely count
heads, then we would be obligated provide bene ts to a host individuals and minorities,
regardless of need. How about a tax to buy a new Volvo for every philosophy professor in
Cincinnati? Obviously, the economics of the debate turn out to be enormously complicated. This
inherent complexity undermines at least one of the major attractions of utilitarianism, its purported
simplicity.

Utilitarianism faces ve serious puzzles:

1. First, of all it is by no means clear as to whether pain and pleasure are really as objective and
measurable as the utilitarians claim.

2. Second, is the fact that we are often faced with moral decisions where we cannot predict how
an action might impact others. We often just don't know whether one act or policy will
promote more pain than pleasure. But what about those cases where we just aren't certain?
What do we do, guess? In cases of uncertainty, like the sports stadiums, it would seem that
the utilitarian would have to resort to intuitionism or some other principle

3. Third, most deontological theorists say that utilitarianism often con icts with our moral
intuitions. For example, if I were an extraordinarily clever shop-lifter, I could justify my theft
based on the fact that I probably would not get caught or that the store might not keep
accurate enough inventory to detect the loss.

4. Fourth, utilitarians, and all altruists, cannot explain why we should be morally obligated to act
in the public interest at the expense of our private interests. If the utility of moral self-sacri ce
is its only justi cation, then it would seem to follow that each of us would be more likely to
approve of self sacri ce in others before we would approve of it for ourselves

5. Fifth, utilitarianism seems to have a built in bias (or sometimes a preference) against
individuals and minorities. What happens when it seems to be in the public interest to in ict
extreme hardship on an individual or minority in order to advance the public interest?

For example, based on utilitarian reasoning, Japanese Americans were hoarded into detention
camps during World War II because the government feared that some of them might support
Japan and perhaps engage in terrorist activities. Indeed, the greatest happiness principle has
often been used in support of totalitarian schemes in which the price paid for collective
happiness has been personal freedom.

That’s why there is a consensus among contemporary philosophers that utilitarianism cannot
operate without other principles, especially justice. But once utilitarians admit this, the
doctrine loses even more of the simplicity that attracted us to it in the rst place.
fi
fi
fi
fi
fi
fi
fi
fi
fl
fi
fi
fi
fi
fl
Conclusion:

Although the principle of utility is di cult to apply and often leads to immorality, it is, nevertheless,
an important moral principle propounded by Jeremy Bentham.

ffi
 Question 21: Explain non-obstante and saving clauses.
Ans: Introduction: Under very basic terms, a non-obstante clause is a xed to a section with an
outlook to furnish the enacting part of that particular provision, in case a con ict arises, an
overruling e ect over that particular provision either in that same act only, or any other act, as
mentioned in that non-obstante clause.

This particular de nition is correspondent in saying that notwithstanding the provisions or the act
mentioned in the non-obstante clause the provision subsequent to it shall have its complete
operation, or the provisions envisaged in the non-obstante clause shall not poise a hindering
e ect for the functioning of the particular provision in which the non-obstante clause occurs. The
basic de nition of a non-obstante clause was furnished by the Apex Court in

For instance, Section 129 of the Central Goods and Services Tax (CGST) Act, 2017 states that,
“notwithstanding anything contained in this act where any person transports any goods or stores
any goods while they are in transit in contravention of the provisions of this Act or the rules made
thereunder, all such goods and conveyance used as a means of transport for carrying the said
goods and documents relating to such goods and conveyance shall be liable to detention or
seizure and after detention or seizure, shall be released”. Thus, the Act has a non-obstante clause
which subsequently overrides the whole of CGST Act, 2017.

One or more non-obstane cause:

When there are two or more provisions, or laws for that matter, which are operating in the same
eld and each holds a non-obstante clause asserting that its provisions will have an overriding
e ect over those of any other provisions of law, restorative and intricate problems of interpretation
arise. In settling these problems of interpretation, no cleared principles can be applied other than
to refer to the purpose and object of each of the two provisions, containing the non-obstante
clause. A non-obstante clause present in two provisions in the same act calls for a harmonious
interpretation of the two apparent con icting provisions of the same act. This particular exercise is
not that simple, and there are proper considerations which are involved in giving e ect to the
object and purpose of the two provisions involved and the language used in each of them, as
seen in the case of Shri Swaran Singh &Anr. v. Shri Kasturi Lal.

Non-obstante clause a/u the Constitution of India:

In a landmark case of RS Raghunath v State of Karnataka, the Apex Court held that “a provision
beginning with words, ‘not withstanding anything in this constitution’ added in the Constitution by
a Constitution Amendment Act cannot be construed as taking away the provision outside the
limitations on the amending power and it has to be harmoniously construed consistent with the
founding principles and the basic features of the Constitution”.

Although with regards to this limitation, contemporary laws as under such provisions cannot be
held null and void only on the basis that they infringe any provision of the Constitution including
Article 13 for the non-obstante clause will preclude any such attack.

The most important case which should be mentioned here, is the case of Chief Information
Commissioner v. High Court of Gujarat and Anr., of the Apex Court, wherein, it held that “a special
enactment or rule cannot be held overridden by a later general enactment simply because the
latter opens up with a non-obstante clause, unless there is a clear inconsistency between the two
legislations”.

The paragraph 27 of the Apex Courts’ judgment clearly postulates that “if the High Court Rules
framed under Article 225 provide a mechanism for invoking the right to information in a particular
manner, the said mechanism should be preserved and followed. The said mechanism cannot be
abandoned or discontinued merely because the general law – RTI Act has been enacted”.

The object of the RTI Act itself recognizes the need to protect the institutional interest and also to
make optimum use of limited scal resources and preservation of con dentiality of sensitive
information. The procedure to obtain certi ed copies under the High Court Rules is not
fi
ff
ff
fi
ff
fi
fi
fl
fi
ffi
fi
fl
ff
cumbersome and the procedure is very simple – ling of an application/a davit along with the
requisite court fee stating the reasons for seeking the information. Furthermore, the Apex Court
held that “the non-obstante clause of the RTI Act does not mean an implied repeal of the High
Court Rules and Orders framed under Article 225 of the Constitution of India; but only has an
overriding e ect in case of inconsistency.

“A special enactment or rule cannot be held to be overridden by a later general enactment simply
because the latter opens up with a non-obstante clause, unless there is clear inconsistency
between the two legislations” as explained by the Apex Court in paragraph 36 of the judgment.

Conclusion:
Conclusively, the clauses of non-obstante are not always to be considered as rescinding clauses
nor as those clauses which partially or completely replace any other provision of the law, but
merely as those clauses which remove all barriers which might arise out of the any other law in the
way of operating the principle provision, to which the particular non-obstante clause is attached.
ff
fi
ffi
 Question 21 A: Short Notes: Ejusdem generis
Ans: De nition: Ejusdem generis is latin for "of the same kind." When a law lists lists classes of
persons or things, this concept is used to clarify such a list.

For example, if a law refers to automobiles, trucks, tractors, motorcycles, and other motor-
powered vehicles, a court might use ejusdem generis to hold that such vehicles would not include
airplanes, because the list included only land-based transportation.

Overview: Circuit City Stores Inc., v. Adams:

The American Supreme Court de ned ejusdem generis as a situation in which "general words
follow speci c words in a statutory enumeration, the general words are construed to embrace
only objects similar in nature to those objects enumerated by the preceding speci c words."

Limits of Ejusdem Generis:

The dissent in Adams, however, stated that when there are good reasons not to abide by ejusdem
generis, then a court will set aside its use.

The American Supreme Court stated in N. & W. Ry. v. Train Dispatchers, 499 U.S. 117 (1991)
that ejusdem generis does not apply "when the whole context dictates a di erent conclusion."
fi
fi
fi
ff
fi
Question 21 B: Short Notes: Preamble
Ans: The preamble of a statute like the long title is a part of the Act and is an admissible aid to
construction. Although not an enacting part, the preamble is expected to express the scope,
object and purpose of the Act more comprehensively than the long title. It may recite the ground
and cause of making the statute, the evils sought to be remedied or the doubts which may be
intended to be settled.

The preamble usually mentions the general object and intention of the legislature in passing
enactment, and is considered as a key to the understanding of it. The preamble may be in brief
and simple form or its recitals it may set out the main objects of the Act, its scope and purpose
and the mischief to be remedied. It is an admissible aid to construction when a provision is
ambiguous, obscure, inde nite, it cannot however, control plain meaning of provision. It is to be
noted that the preamble serves as a preface to the Act. It is a part of the Act but not an enacting
part. Preamble is said to be a necessary but not an indispensable part for there are Acts which do
not contain preamble.

In Brett v. Brett, (1826) 162 ER 456:

Sir John Nicholl observed: “It is to the preamble more speci cally that we are to look for the
reason or spirit of every statute, rehearsing this, as it ordinarily does, the evils sought to be
remedied, or the doubts purported to be removed by the statute, and so evidencing, in the best
and most satisfactory manner, the object or intention of the Legislature in making or passing the
statute itself.”

In Powell v. Kempton Park Racecourse Co., (1899) A.C. 143, 157:

Lord Halsburry L.C. made the following pronouncement on the subject: one that preamble a ords
useful light as to what a statute intends to reach, and another that if an enactment is itself clear
and unambiguous, no preamble can qualify or cut down the enactment.

In Burakar Coal Co. Ltd. v. Union of India, AIR 1961 SC pp.954, 956, 957:

Mudholkar J. enunciated the principle and observed: “It is one of the cardinal principles of
construction that where the language of an Act is clear, the preamble may be resorted to explain
it. Again, where very general language is used in an enactment which, it is clear must be intended
to have a limited application, the preamble may be used to indicate to what particular instances,
the enactment is intended to apply. We cannot, therefore, start with the preamble for construing
the provisions of an Act, though we could be justi ed in resorting to it, nay, we will be required to
do so, if we nd that the language used by Parliament is ambiguous or is too general though in
point of fact parliament intended that it should have a limited application.”

In Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461:

Wherein the apex court strongly relied on the Preamble to the Constitution of India in reaching a
conclusion that the power of the Parliament to amend the constitution under Article 368 was not
unlimited and did not enable the Parliament to alter the Basic Structure of the Constitution. The
Court observed: “If the language in an ordinary statute is not plain and clear, then the preamble
may have e ect either to extend or restrict the language used in the body of the enactment.

In Rashtriya Mill Mazdoor Sangh v. NTC (South Maharashtra), AIR 1996 SC 710 case,

the Supreme Court while interpreting certain provisions of the Textile Undertakings (Take over of
Management) Act, 1983 held that when the language of the Act is clear, preamble cannot be
invoked to curtail or restrict the scope of an enactment.
ff
fi
fi
fi
fi
ff
 Limitation of Preamble as Internal Aid:

• The preamble can be resorted to only when the language of a provision is reasonably capable of
alternative construction. i.e. when the provision is ambiguous, obscure, inde nite.

• The preamble cannot either restrict or extend the meaning and scope of the words used in the
enacting part.

• In case of con ict between Preamble and a section, the section shall prevail over the preamble.

• The preamble cannot be regarded as a source of any substantive power or of any prohibition or
limitation.

• A preamble retrospectively inserted into an earlier Act is not of much assistance for gathering
the intention of the original Act. Similarly, it seems the repeal of a preamble simpliciter will not
a ect the construction of the Statute.

The Preamble of the Constitution of India:

The Preamble of the Constitution like the Preamble of any statute furnishes the key to open the
mind of the makers of the Constitution more so because the Constituent Assembly took great
pains in formulating it so that it may re ect the essential features and basic objectives of the
Constitution. The Preamble is a part of the Constitution. The Preamble embodies the
fundamentals underlining the structure of the Constitution.

The Constitution, including the Preamble, must be read as a wholeand in case of doubt
interpreted consistent with its basic structure to promote the great objectives stated in the
preamble.

In Indira Nehru Gandhi (Smt.) v. Raj Narain, AIR 1975 SC 2299:,

The Court held that the Preamble can neither be regarded as the source of any substantive power
nor as a source of any prohibition or limitation.

In Kesavananda v. State of Kerala, AIR 1973 SC 1461, and Minerva Mills Ltd. v. Union of India,
AIR 1980 SC pp.1789, 1798, 1806:,

The Court strongly relied upon the Preamble in reaching the conclusion that the power of
amendment conferred by Article 368 was limited and did not enable Parliament to alter the basic
structure or framework of the Constitution.

Conclusion:
The preamble sets out the main objects of the Act, its scope and purpose and the mischief to be
remedied. It is an admissible aid to construction when a provision in enactment is ambiguous,
obscure, inde nite, it cannot however, control plain meaning of provision. In case of con ict
between Preamble and a section, the section shall prevail over the preamble.
ff
fl
fi
fl
fi
fl
 Question 21 C: Short Notes: Reddendo Singula Singulis
Ans: Introduction: Reddendo Singula Singulis is a Latin term that means by referring each to each;
referring each phrase or expression to its corresponding object. In simple words, “Reddendo
Singula Singulis” means that when a list of words has a modifying phase at the end, the phrase
refers only to the last.

It is a rule of construction used typically in distributing property. The phrase ‘Reddendo Singular
Singulis’ indicates that di erent words in one part of the statute are to be applied respectively to
the other portions or sentence to which they respectively relate, even if strict grammatical
construction should demand otherwise.

Where there are general words of description, following a record of particular things, such general
words are to be construed distributing each word or phrase, and if the general words will apply to
some things and not to others, the general words are to be applied to those things to which they
will, and not to those to which they will not apply; that is to say, each phrase, word or expression
is to be referred to its suitable objects.

Examples of Reddendo Singula Singulis:

1. The best example of Reddendo Singula Singulis is quoted from Wharton’s Law Lexicon, “If
anyone shall draw or load any sword or gun, the word draw is applied to sword only and the
word load to gun only, the former verb to former noun and latter to latter, because it is
impossible to load a sword or to draw a gun, and so of other applications of di erent sets of
words to one another.”

2. Another example, the phrase “men and women may become members of fraternities and
sororities” is ambiguous as to how the terms should be matched. However, Reddendo Singula
Singulis implies that the subject “men” should be applied to the object “fraternities” since they
are both rst in the lists, and that “women” should be matched with “sororities” since these
terms both come second. There may also be an implied distribution that can be leveraged (i.e.
“frat” comes from brother), and context and social policies may assist the argument.

3. An example to understand this can be done with the help of Bishop v. Deakin (Eng. CA) case.
The defendant here, had been elected as a “municipal councillor” in the United Kingdom. She
had been convicted of perjury and sentenced to more than three months in prison, two years
before the election. The opposition party brought this fact to light and sought to remove the
councillor from o ce, eight months after the election. The relevant legislation said that “a
person shall be disquali ed from being elected or being a member of a local authority if he …
has within ve years before the day of election or since his election been convicted in the
United Kingdom … of any o ence and ordered to be imprisoned for a period of no less than
three months”.

There was a six-month limitation period in play. In this case, algebraically speaking, the Court
decided that X = disquali ed from being elected, A = disquali ed from being a member, Y =
within ve years before the day of election and B = since his election. The Court found that
because the councillor was already a member (A) that this should be matched with “since his
election” (B). Since she hadn’t been convicted since her election, she was allowed to remain in
o ce.

Reddendo Singula Singulis Cases:

1. Reddendo Singula Singulis has been applied in the case of Koteshwar Vittal Kamat v. K.
Rangappa Baliga, in the construction of the Proviso to Article 304 of the Constitution which
reads, "Provided that no bill or amendment for the purpose of clause (b), shall be introduced
or moved in the legislature of a state without the previous sanction of the President". It was
held that the word introduced applies to bill and moved applies to amendment.
ffi
fi
fi
fi
ffi
fi
fi
ff
ff
fi
ff
2. In P. Chandra Mouli & Ors. v. Union of India, it was held that the rule of Reddendo Singula
Singulis is to be invoked while interpreting a section or a statute when di erent words of the
section or statute have reference to di erent situation, or person, which problem may almost
entirely be eliminated if short sentences with a single subject and single object are used.

3. In S.A. Aneesh, Kollam v. The Ombudsman for Local Self Government Institutions,
Represented by Its Secretary, Thiruvananthapuram & Others, it was held that all di culty can
be avoided by applying the well-known method of construction commonly known as
Reddendo Singula Singulis; and applying the rst disquali cation mentioned to rst case dealt
with, and the second disquali cation to the second case dealt with-.

4. In Registrar of Companies, Gujarat v. Adani Exports Ltd., it was held that the principles of
Reddendo Singula Singulis would be applicable. The said principle says that a particular
phrase or subject is to be connected with or read with another provision or another qualifying
statement for getting a legal result.

Conclusion:

The Reddendo Singula Singulis principle concerns the use of words distributively. Where a
complex sentence has more than one subject, and more than one object, it may be the right
construction to render each to each, by reading the provision distributively and applying each
object to its appropriate subject. A similar principle applies to verbs and their subjects, and to
other parts of speech.

A typical application of this principle is where a testator says, 'I devise and bequeath all my real
and personal property to B'. The term devise is appropriate only to real property. The term
bequeath is appropriate only to personal property. Accordingly, by the application of the principle
Reddendo Singula Singulis, the testamentary disposition is read as if it were worded, 'I devise all
my real property, and bequeath all my personal property, to B'.
fi
ff
fi
fi
ff
fi
ffi