INTERPRETATION OF STATUTES

SEM 6 TYLLB

& SEM 10 BLS-LLB

BY

ADV. MANISHA PATHAK

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 Interpretation of Statutes

Interpretation meaning

The term has been derived from the Latin term ‘interpretari’, which means to explain,
expound, understand, or to translate. Interpretation is the process of explaining,
expounding and translating any text or anything in written form. This basically involves
an act of discovering the true meaning of the language which has been used in the
statute. Various sources used are only limited to explore the written text and clarify
what exactly has been indicated by the words used in the written text or the statutes.

Interpretation of statutes is the correct understanding of the law. This process is

commonly adopted by the courts for determining the exact intention of the legislature.
Because the objective of the court is not only merely to read the law but is also to apply
it in a meaningful manner to suit from case to case. It is also used for ascertaining the
actual connotation of any Act or document with the actual intention of the legislature.
There can be mischief in the statute which is required to be cured, and this can be done
by applying various norms and theories of interpretation which might go against the
literal meaning at times. The purpose behind interpretation is to clarify the meaning of
the words used in the statutes which might not be that clear. According
to Salmond, “Interpretation” is the process by which the court seeks to ascertain the
meaning of the legislature through the medium of authoritative forms in which it is
expressed.

Construction meaning

In simple words, construction is the process of drawing conclusions of the subjects

which are beyond the direct expression of the text. The courts draw findings after
analysing the meaning of the words used in the text or the statutes. This process is
known as legal exposition. There are a certain set of facts pending before the court and
construction is the application of the conclusion of these facts.

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The objective is to assist the judicial body in determining the real intention of the
legislature. Its aim is also to ascertain the legal effect of the legal text.

Difference between Interpretation and Construction

Interpretation Construction

1. In law, interpretation refers to

exposing the true sense of the1. 1. Construction, on the other hand, refers to
provisions of the statutes and to drawing conclusions from the written texts
understand the exact meaning of which are beyond the outright expression of
the words used in any text. the legal text.
2. Interpretation refers to the 2. The purpose of construction is to
linguistic meaning of the legal determine the legal effect of words and
text. the written text of the statute.
3. In the case where the simple 3. In the case where the literal meaning of
meaning of the text is to be the legal text results in ambiguity then the
adopted then the concept of concept of construction is adopted.
interpretation is being referred to.

A statute must be read as a whole in its context-

"It is well-settled principle that while interpreting a statute, the interpretative function
of the court is to discover the true legislative intent. A statute is best interpreted when
we know why it was enacted. It must be read, first as a whole, and then section by
section, clause by clause, phrase by phrase and word by word and therefore, taking into
consideration the contextual connotation and the scheme of the Act, its provisions in
their entirety. The key to the opening of every law is the reason and spirit of the law, it
is the animus imponentis, the intention of the law maker expressed in the law itself,
taken as a whole.

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Whenever the question arises as to the meaning of a certain provision in a statute, it is
proper and legitimate to read that provision in its context. This means that the statute
must be read as a whole. What was the previous state of the law, study of other statutes
in pari materia i.e., on the same matter, if there are any, what is the general scope of the
statute and what is the mischief which it wanted to remedy, all these questions are to be
considered here.

Lord Greene, M.R. said, ‘To ascertain the meaning of a clause in a statute the courts
must look at the whole statute, at what precedes and at what succeeds and not merely at
the clause itself and the method of construing statutes that I prefer, is to read the statute
as a whole and ask oneself the question: In this state, in this context, relating to this
subject- matter, what is true meaning of that word?’ In the words of Lord Halsbury, “I
agree that you must look at the whole instrument in as much as there may be inaccuracy
and inconsistency; you must, if you can, ascertain what is the meaning of the instrument
taken as a whole in order to give effect, if it be possible to do so, to the intention of the
framer of it.’ It is now firmly established as a rule that the intention of the Legislature
must be found by reading the statute as a whole.

Classification of Statutes

Codifying statutes

The purpose of this kind of statute is to give an authoritative statement of the rules of
the law on a particular subject, which is customary laws. For example- The Hindu
Marriage Act, 1955 and The Hindu Succession Act, 1956.

Consolidating statutes

This kind of statute covers and combines all law on a particular subject at one place
which was scattered and lying at different places. Here, the entire law is constituted in
one place. For example- Indian Penal Code or Code of Criminal Procedure.

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Declaratory statutes

This kind of statute does an act of removing doubts, clarifying and improving the law
based on the interpretation given by the court, which might not be suitable from the
point of view of the parliament. For example- the definition of house property has been
amended under the Income Tax (Amendment) Act, 1985 through the judgement of the
Supreme Court.

Remedial statutes

Granting of new remedies for enforcing one’s rights can be done through the remedial
statutes. The purpose of these kinds of statutes is to promote the general welfare for
bringing social reforms through the system. These statutes have liberal interpretation
and thus, are not interpreted through strict means. For example- The Maternity Benefits
Act, 1961, The Workmen’s Compensation Act, 1923 etc.

Enabling statutes

The purpose of this statute is to enlarge a particular common law. For example- Land
Acquisition Act enables the government to acquire the public property for the purpose
of the public, which is otherwise not permissible.

Disabling statutes

It is the opposite of what is provided under the enabling statute. Here the rights
conferred by common law are being cut down and are being restrained.

Penal statutes

The offences for various types of offences are provided through these statutes, and these
provisions have to be imposed strictly. For example- Indian Penal Code, 1860.

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Taxing statutes

Tax is a form of revenue which is to be paid to the government. It can either be on

income that an individual earns or on any other transaction. A taxing statute thus, levies
taxes on all such transactions. There can be income tax, wealth tax, sales tax, gift tax,
etc. Therefore, a tax can be levied only when it has been specifically expressed and
provided by any statute.

Explanatory statutes

The term explanatory itself indicates that this type of statute explains the law and
rectifies any omission left earlier in the enactment of the statutes. Further, ambiguities
in the text are also clarified and checked upon the previous statutes.

Amending statutes

The statutes which operate to make changes in the provisions of the enactment to change
the original law for making an improvement therein and for carrying out the provisions
effectively for which the original law was passed are referred to as amending
statutes. For example- Code of Criminal Procedure 1973 amended the code of 1898.

Repealing statutes

A repealing statute is one which terminates an earlier statute and may be done in the
express or explicit language of the statute. For example- Competition Act, 2002
repealed the MRTP Act.

Curative or repealing statutes

Through these statutes, certain acts which would otherwise be illegal are validated by
curing the illegality and enables a particular line of action.

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Need of 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 find the true meaning of enactment. This helps us
in finding iut the true intention of the legislature.

The court has their own discretion while interpretation but they should focus only in
finding 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 finding 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.

Some important internal aid to interpretation are-

Title

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

1. 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.

For eg. The Transfer of Property Act, 1882 ,Code of Criminal Procedure, 1973 etc.

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 2. 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.

For 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 Criminal Law Amendment Act, 1949 and held that it is the discretion of the
State government to try any offence under special procedure in special courts.

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, define 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 find 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.

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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.

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.

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 effect 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 conflict 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.

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Headings

Heading are put up at the start of the group of sections relating to a particular offence
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.

Explanations

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.

Exceptions and Saving Clauses

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 different meaning to the words. They just take away certain things from a
particular provision.

For eg.- Section 300 of Indian Penal Code specifies 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.

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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.

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.

Definitions

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 definition given
by the legislatures forms different meaning of the words other than the ordinary
meaning. In such cases the definition given by the legislatures has to be used and it will
override the ordinary meaning.

Schedules-

It helps in the working of an enactment properly and it forms the part of the enactment.
When meaning of an enactment is not clear help can be taken from it to ascertain the
meaning.

Punctuations

It doesn’t have much of a role to play in the interpretation and is not taken as useful tool
to ascertain the meaning of an enactment. The role played by it is to separate the
sentences and nothing else.

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 External Aid to Interpretation

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 specific 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.

Some important external aids are-

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.

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Statement of Object and Reasons

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.

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 different 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.

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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
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.

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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
different textbooks have different opinions. Personal views of the author cannot tell us
about the intention of the legislature. Thus is not a reliable source of interpretation.

Travaux préparatoires :-

Travaux préparatoires is the name used to describe the documentary evidence of the
negotiation, discussions, and drafting of a final treaty text. It is the most commonly used
name for these types of documents, but they may sometimes also be referred to as:

 negotiating history
 drafting history
 preparatory documents

According to the Vienna Convention on the Law of Treaties, these documents can be
used to supplement the interpretation of a treaty when the meaning is ambiguous or
obscure when reading the treaty alone.

There are a number of sources you can use when trying to locate travaux préparatoires:

 Sometimes, the work of locating these documents has been done for you and the
documents have been compiled and published in a book or on a website.
 The Historical Archives section of the Audiovisual Library of International
Law is an excellent source for finding selected travaux préparatoires for UN
multilateral treaties.
 Ask DAG also has a number of FAQs related to the travaux préparatoires for
specific treaties and conventions.
 Many official documents of Diplomatic Conferences in which treaties are
negotiated can be found on the UN's Diplomatic Conferences website.

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  The Analytic Guide of International Law Commission provides you with the
documents related to the study of a particular international law topic at the
International Law Commission.

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.

Economic, Scientific, 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 flexibility 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.

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 first option for interpretation
and when they fails only then external aids come into play.

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 Rules of interpretation

The Court is not expected to interpret arbitrarily and therefore there have been certain
principles which have evolved out of the continuous exercise by the Courts.

These principles are sometimes called ‘rules of interpretation’

Rules of Interpretation

1. Primary Rules –

Literal or Grammatical Rule

To construe the provisions literally and grammatically giving the words their ordinary
and natural meaning; Also known as plain meaning rule; There should be no additions
or substitution of words in the construction of statutes and its interpretation; Only one
meaning should be derived from the statute.

Literal meaning is subject to the following conditions-

Statute may itself provide for a special meaning for a term, which is usually to be found
in the interpretation section. Technical words are given ordinary technical meaning if
the statute has not specified any other. Words will not be inserted by implication. Words
may undergo shifting in the course of time. It should be remembered that the words
acquire significance from their context. It is the first rule of interpretation.

According to this rule, the words used in this text are to be given or interpreted in
their natural or ordinary meaning. After the interpretation, if the meaning is completely
clear and unambiguous then the effect shall be given to a provision of a statute
regardless of what may be the consequences.

The basic rule is that whatever the intention legislature had while making any provision
it has been expressed through words and thus, are to be interpreted according to the rules
of grammar.

It is the safest rule of interpretation of statutes because the intention of the legislature
is deduced from the words and the language used.

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According to this rule, the only duty of the court is to give effect if the language of the
statute is plain and has no business to look into the consequences which might arise.
The only obligation of the court is to expound the law as it is and if any harsh
consequences arise then the remedy for it shall be sought and looked out by the
legislature.

Case Laws

Maqbool Hussain v. State of Bombay,

In this case, the appellant, a citizen of India after arriving at the airport did not declare
that he was carrying gold with him. During his search was carried on, gold was found
in his possession as it was against the notification of the government and was
confiscated under section 167(8) of Sea Customs Act.

Later on, he was also charged under section 8 of the Foreign Exchange Regulations Act,
1947. The appellant challenged this trial to be violative under Article 20(2) of the
Indian Constitution. According to this article, no person shall be punished or prosecuted
more than once for the same offence. This is considered as double jeopardy.

It was held by the court that the Seas Act neither a court nor any judicial tribunal. Thus,
accordingly, he was not prosecuted earlier. Hence, his trial was held to be valid.

2. The Mischief Rule/Purposive construction

A rule of statutory interpretation that attempts to determine the legislator’s intention –

to determine the mischief and defect – to give ruling to implement the effective remedy.

Mischief Rule was originated in Heydon’s case in 1584. It is the rule of purposive
construction because the purpose of this statute is most important while applying this
rule. It is known as Heydon’s rule because it was given by Lord Poke in Heydon’s case
in 1584. It is called as mischief rule because the focus is on curing the mischief.

In the Heydon’s case, it was held that there are four things which have to be followed
for true and sure interpretation of all the statutes in general, which are as follows-

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1. What was the common law before the making of an act.

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 purpose of this rule is to suppress the mischief and advance the remedy.

Case laws

Smith v. Huges, 1960 WLR 830, in this case around the 1960s, the prostitutes were
soliciting in the streets of London and it was creating a huge problem in London. This
was causing a great problem in maintaining law and order. To prevent this problem,
Street Offences Act, 1959 was enacted. After the enactment of this act, the prostitutes
started soliciting from windows and balconies.

Further, the prostitutes who were carrying on to solicit from the streets and balconies
were charged under section 1(1) of the said Act. But the prostitutes pleaded that they
were not solicited from the streets.

The court held that although they were not soliciting from the streets yet the mischief
rule must be applied to prevent the soliciting by prostitutes and shall look into this issue.
Thus, by applying this rule, the court held that the windows and balconies were taken
to be an extension of the word street and charge sheet was held to be correct.

Pyare Lal v. Ram Chandra, the accused in this case, was prosecuted for selling the
sweeten supari which was sweetened with the help of an artificial sweetener. He was
prosecuted under the Food Adulteration Act. It was contended by Pyare Lal that supari
is not a food item. The court held that the dictionary meaning is not always the correct
meaning, thereby, the mischief rule must be applicable, and the interpretation which
advances the remedy shall be taken into consideration. Therefore, the court held that
the word ‘food’ is consumable by mouth and orally. Thus, his prosecution was held to
be valid.

Kanwar Singh v. Delhi Administration, AIR 1965 SC 871.

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Issues of the case were as follows- section 418 of Delhi Corporation
Act, 1902 authorised the corporation to round up the cattle grazing on the government
land. The MCD rounded up the cattle belonging to Kanwar Singh. The words used in
the statute authorised the corporation to round up the abandoned cattle. It was contended
by Kanwar Singh that the word abandoned means the loss of ownership and those cattle
which were round up belonged to him and hence, was not abandoned. The court held
that the mischief rule had to be applied and the word abandoned must be interpreted to
mean let loose or left unattended and even the temporary loss of ownership would be
covered as abandoned.

3. The Golden Rule

It is a form of statutory interpretation that allows a judge to depart from a word’s normal
meaning in order to avoid an absurd result.

It is a compromise between the rule of interpretation and the rule of mischief. To be

used in two ways-

It is applied most frequently in a narrow sense where there is some ambiguity or

absurdity in the words themselves. It is used in a wider sense to avoid a result that is
obnoxious to the principles of public policy.

It is known as the golden rule because it solves all the problems of interpretation. The
rule says that to start with we shall go by the literal rule, however, if the interpretation
given through the literal rule leads to some or any kind of ambiguity, injustice,
inconvenience, hardship, inequity, then in all such events the literal meaning shall be
discarded and interpretation shall be done in such a manner that the purpose of the
legislation is fulfilled.

The literal rule follows the concept of interpreting the natural meaning of the words
used in the statute. But if interpreting natural meaning leads to any sought of
repugnance, absurdity or hardship, then the court must modify the meaning to the extent
of injustice or absurdity caused and no further to prevent the consequence.

This rule suggests that the consequences and effects of interpretation deserve a lot more
important because they are the clues of the true meaning of the words used by the
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legislature and its intention. At times, while applying this rule, the interpretation done
may entirely be opposite of the literal rule, but it shall be justified because of the golden
rule. The presumption here is that the legislature does not intend certain objects. Thus,
any such interpretation which leads to unintended objects shall be rejected.

Important aspects of this rule

The court must construe the contradictory provisions so as to harmonize them.

The provision of one section cannot be used to defeat the provisions in another unless
the Court, despite all its efforts, is unable to find a way to reconcile their differences.

When it is impossible to reconcile the differences in contradictory provisions

completely, the court must interpret them in such a way so as that effect is given to both
the provisions as much as possible.

It is not a harmonious construction if the interpretation reduces one provisions to be

useless and not to destroy it or render it to loose.

Case laws

Tirath Singh v. Bachittar Singh, AIR 1955 SC 850

In this case, there was an issue with regard to issuing of the notice under section 99 of
Representation of People’s Act, 1951, with regard to corrupt practices involved in the
election.

According to the rule, the notice shall be issued to all those persons who are a party to
the election petition and at the same time to those who are not a party to it. Tirath Singh
contended that no such notice was issued to him under the said provision. The notices
were only issued to those who were non-parties to the election petition. This was
challenged to be invalid on this particular ground.

The court held that what is contemplated is giving of the information and the
information even if it is given twice remains the same. The party to the petition is
already having the notice regarding the petition, therefore, section 99 shall be so
interpreted by applying the golden rule that notice is required against non-parties only.

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 4. Harmonious Construction

When there is a conflict between two or more statutes or two or more parts of a statute
then this rule is to be adopted.

If it is not possible to harmonize the two statutes, then the court is to decide the same
and it shall prevail. There should be consistency.

According to this rule of interpretation, when two or more provisions of the same statute
are repugnant to each other, then in such a situation the court, if possible, will try to
construe the provisions in such a manner as to give effect to both the provisions by
maintaining harmony between the two. The question that the two provisions of the same
statute are overlapping or mutually exclusive may be difficult to determine.

The legislature clarifies its intention through the words used in the provision of the
statute. So, here the basic principle of harmonious construction is that the legislature
could not have tried to contradict itself. In the cases of interpretation of the Constitution,
the rule of harmonious construction is applied many times.

It can be assumed that if the legislature has intended to give something by one, it would
not intend to take it away with the other hand as both the provisions have been framed
by the legislature and absorbed the equal force of law. One provision of the same act
cannot make the other provision useless. Thus, in no circumstances, the legislature can
be expected to contradict itself.

Cases –

Ishwari Khaitan Sugar Mills v. State of Uttar Pradesh, in this case, the State
Government proposed to acquire sugar industries under U.P Sugar Undertakings
(Acquisition) Act, 1971. This was challenged on the ground that these sugar industries
were declared to be a controlled one by the union under Industries (Development and
Regulation) Act, 1951. And accordingly, the state did not have the power of acquisition
of requisition of property which was under the control of the union. The Supreme Court
held that the power of acquisition was not occupied by Industries (Development and
Regulation) Act, 1951. The state had a separate power under Entry 42 List III.

22
Rule of reasonable construction

This rule stresses upon the intention of the legislature to bring up the statute and sensible
and not the prima facie meaning of the statute.

This helps to clear the error caused due to the faulty draftsmanship.

Rule of beneficial construction

Beneficial construction is a tendency and not a rule.

This principle is based on human tendency to be fair, accommodating and just.

In one case the Tribunal awarded more number of paid leaves to the workers than stated
in section 79(1) of the Factories Act. This has been challenged. The Supreme Court held
that the enactment being welfare legislation for the workers had to be beneficially
constructed in favor of the workers.

Rule of exceptional construction

It stands for the elimination of statutes and words in a statute which defeats the real
objective of the statute or makes no sense. ‘and’ ‘or’, ‘may’, ‘shall’, ‘must’.

2. Secondary Rules –

1. Noscitur a sociis –

It can be used wherever a statutory provision contains a word or phrase that is capable
of bearing more than one meaning.

Noscere means to know and sociis means association.

Thus, Noscitur a Sociis means knowing from association. a doctrine or rule of

construction: the meaning of an unclear or ambiguous word (as in a statute or contract)
should be determined by considering the words with which it is associated in the
context.

The meaning of an unclear word or phrase should be determined by the words

immediately surrounding it. In other words, the meaning of a word is to be judged by

23
the company it keeps. The questionable meaning of a doubtful word can be derived
from its association with other words.

This rule is explained in Maxwell on the interpretation of statutes (12th edition ) in

following words – When two or more words susceptible of analogous meaning are
coupled together, they are understood to be used in their cognate sense. The words take
their colour from and are quantified by each other, the meaning of the general
words being restricted to a sense analogous to that of the less general.

When a word is ambiguous, its meaning may be determined by reference to the rest of
the statute.

Thus, under the doctrine of “noscitur a sociis” the questionable meaning of a word or
doubtful words can be derived from its association with other words within the context
of the phrase.

Relying on the above,

The apex court in Pradeep Agarbatti with reference to the Punjab Sales Tax Act held
that the word, “perfumery’’ means such articles as used in cosmetics and toilet goods
viz, sprays, etc but does not include ‘Dhoop’ and ‘Agarbatti’. This is because in
Schedule ‘A’ Entry 16 of Punjab Sales Tax Act reads as “cosmetics, perfumery & toilet
goods excluding toothpaste , tooth powder kumkum & soap.”

Delhi Tribunal in the case of, Parsons Brinckerhoff India (P.) Ltd. vs. Asstt. DIT (Int.
Tax) applying the rule of Noscitur a Sociis held that, the words ‘model’ and ‘design’
cannot fall under definition of ‘royalty’ under Explanation 2 to section 9 (I) (VI) of the
Income Tax Act. They have to take colour from the other words surrounding them, such
as, patent, invention, secret formula or process or trade mark, which are all species of
intellectual property.

Noscitur a sociis cannot prevail in case where it is clear that the wider words have been
deliberately used in order to make the scope of the defined word correspondingly wider.

24
It can also be applied where the meaning of the words of wider meaning import is
doubtful; but, where the object of the Legislature in using wider words is clear and free
from ambiguity, the rule of construction cannot be applied.

This doctrine is broader than the doctrine of ejusdem generis because this rule puts the
words in context of the whole phrase and not just in relation to the nearby words.

The language of the phrase can be used as a guide to arrive at the true meaning of the
word.

2. Ejusdem Generis – When a list of two or more specific descriptors are followed by
more general descriptors, the otherwise wide meaning of the general descriptors must
be restricted to the same class, if any, of the specific words that precede them e.g.
vehicles in “cars, motorbikes, motor powered vehicles” would be interpreted in a
limited sense and therefore cannot be interpreted as including air planes.

The ejusdem generis, or ‘of the same genus’ rule, is similar though narrower than the
more general rule of noscitur a sociis.

According to this rule, when particular words pertaining to a class or a genus are
followed by general words, the general words are construed as limited to the things of
the same kind as those specified by the class or the genus. The meaning of an expression
with wider meaning is limited to the meaning of the preceding specific expressions.

However, for this rule to apply, the preceding words must for a specific class or genus.

Further, this rule cannot be applied in the words with a wider meaning appear before
the words with specific or narrow meaning.

In UP State Electricity Board vs Harishankar, AIR 1979, SC held that the following
conditions must exist for the application of this rule –

1. The statue contains an enumeration of specific words

2. The subject of the enumeration constitute a class or a category

3. The class or category is not exhausted by the enumeration

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4. A general term is present at the end of the enumeration

5. There is no indication of a different legislative intent

Justice Hidayatullah explained the principles of this rule through the following example
– In the expression, “books, pamphlets, newspapers, and other documents”, private
letters may not be held included if “other documents” be interpreted ejusdem generis
with what goes before. But in a provision which reads, “newspapers or other documents
likely to convey secrets to the enemy”, the words “other documents” would include
documents of any kind and would not take their meaning from newspaper.

This was also illustrated in the case of Ishwar Singh Bagga vs State of Rajasthan 1987,
where the words “other person”, in the expression “any police officer authorized in this
behalf or any other person authorized in this behalf by the State government” in Section
129 of Motor Vehicles Act, were held not to be interpreted ejusdem generis because the
mention of a single species of “police officers” does not constitute a genus.

It can be seen that this rule is an exception to the rule of construction that general words
should be given their full and natural meaning. It is a canon of construction like many
other rules that are used to understand the intention of the legislature.

This rule also covers The rank principle, which goes as follows – Where a string of
items of a certain rank or level is followed by general residuary words, it is presumed
that the residuary words are not intended to include items of a higher rank than those
specified.

By specifying only items of lower rank the impression is created that higher ranks are
not intended to be covered. If they were, then their mention would be expected a fortiori.
For example, the phrase “tradesman, artificer, workman, labourer, or other person
whatsoever” was held not to include persons above the artisan class. Similarly, the
phrase “copper, brass, pewter, and tin, and all other metals” in a local Act of 1825 was
held not to include precious metals such as gold and silver.

26
3. Reddendo Singula Singulis – When a list of words has a modifying phrase at the end,
the phrase refers only to the last word, e.g., firemen, policemen, and doctors in a
hospital. Here, “in a hospital” only applies to doctors and not to firemen or policemen.
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
singular 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’.

This rule has been applied in the case of Koteshwar Vittal Kamatvs K Rangappa Baliga,
AIR 1969, 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.

Use of “May’, ‘shall’ and ‘must”

The words ‗may‘, ‗shall‘ and ‗must‘ should initially be deemed to have been used in
their natural and ordinary sense.

May signifies permission and implies that the authority has been allowed discretion.

In state of UP v Jogendra Singh, the Supreme Court observed that “there is no doubt
that the word ‘may’ generally does not mean ‘must’ or ‘shall’.

But it is well settled that the word ‘may’ is capable of meaning ‘must’ or ‘shall’ in the
light of context. It is also clear that when a discretion is conferred upon a public
authority coupled with an obligation, the word ‘may’ should be construed to mean a
command (Smt. Sudir Bala Roy v West Bengal).

27
‘May’ will have compulsory force if a requisite condition has to be filled. Cotton L.J
observed that ‘May’ can never mean ‘must’ but when any authority or body has a power
to it by the word ‘May’ it becomes its duty to exercise that power.

‘Shall’ in the normal sense imports command.

It is well settled that the use of the word ‘shall’ does not always mean that the enactment
is obligatory or mandatory. It depends upon the context in which the word ‘shall’ occurs
and the other circumstances. Unless an interpretation leads to some absurd or
inconvenient consequences or contradicts with the intent of the legislature the court
shall interpret the word ‘shall’ in mandatory sense.

‘Must’- is doubtlessly a word of command.

In procedural statutes both negative and affirmative are mandatory. Aids to construction
for determination of the character of words can be used.

Same word, same meaning: Where a Legislature uses the same expression in the same
statute at two places or more, then the same interpretation should be given to that
expression unless the context otherwise requires. But the application of the rule of
"same word, same meaning" may be excluded by the context. If one construction will
lead to an ambiguity while another will give effect to what common sense would show
as obviously intended, the construction which would defeat the ends of the Act must be
rejected even if same words used in the same section or the same sentence have to be
construed differently. This involves a presumption that is used in the same sense
throughout the statute. The presumption is at its weakest when word in question is of
the kind that readily draws its precise import, its range of meanings from its immediate
setting or the nature of the subject with regard to which it is employed.

• Use of different words: When different words are used in the same statute,
presumption is that they are not used in the same sense. Example – “at the end of the
previous year” and “in the course of such previous year” appearing in section 23A of
Income Tax Act, 1922 will be interpreted differently.

28
• Rule of Last Antecedent: The last antecedent rule is another doctrine of interpretation
by which referential and qualifying phrases, where no contrary intention appears, refer
solely to the last antecedent." The rule is typically bound by "common sense" and is
flexible enough to avoid application that "would involve an absurdity, do violence to
the plain intent of the language, or if the context for other reason requires a deviation
from the rule.

• Non-Obstante Clause: A non-obstante clause is generally appended to a section with

a view to give the enacting part of the section, in case of conflict, an overriding effect
over the provision in the same or other Act mentioned in the non-obstante clause. It is
equivalent to saying that in spite of the provisions or Act mentioned in the non-obstante
clause, the provision following it will have its full operation or the provisions embraced
in the non-obstante clause will not be an impediment for the operation of the enactment
or the provision in which the non-obstante clause occurs. Such a clause begins with
“Notwithstanding anything contained in this Act or in some particular provision in the
Act or in some particular Act or in any law for the time being in force” In such cases,
later enactment prevails over the former and special enactment prevails over the general
one.

• Legal Fiction: When a statute enacts that something shall be deemed to have been
done, which in fact and in truth was not done, the court is entitled and bound to ascertain
for what purposes and between what persons the statutory fiction is to be resorted to.
Full effect must be given to the statutory fiction and it should be carried to its logical
conclusion. A legal fiction created in terms enacted “for the purposes of this Act is
normally restricted to that Act and cannot be extended to cover another Act.” Hence, a
legal fiction is a fact assumed or created by courts which is then used in order to help
reach a decision or to apply a legal rule and decisions taken through a legal fiction derive
their legitimacy from tradition and precedent as opposed to the word of the law.

• Mandatory and Directory Provisions: A mandatory enactment must be obeyed or

fulfilled exactly but it is sufficient if a directory enactment be obeyed or fulfilled
substantially. The use of word “shall” generally indicates an imperative provision unless
context shows otherwise. The use of word “may” indicates a directory or enabling

29
provision. It can also be said that the word “must” is a stronger version of shall. For
example, when consequences of nullification or failure are provided in the statute, the
statute can be called mandatory. The use of negative phrases like not less than three
months’ notice” also indicate a clear mandatory provision. 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 first 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.

• Use of “Or” and “And”: “Or” is normally disjunctive and “And” is conjunctive, but at
times they are read as vice versa. A departure from this is not available unless the aim
and purpose of the statute requires so. Certain examples in which the interpretation of
the word ‘or’ as disjunctive and the word ‘and’ as conjunctive can been foregone to
prevent injustice or to give effect to the real purpose of the statute are when there is a
need to prevent arbitrary powers, to prevent crime and to ensure fulfilment of
duty. In Union of India v. in-swift laboratories ltd. the apex court emphasised the need
to interpret ‘or’ and ‘and’ in a manner that ensures the manifest intent of the legislature.

Every nation has its own judicial system, the purpose of which to grant justice to all.
The court aims to interpret the law in such a manner that every citizen is ensured justice
to all. To ensure justice to all the concept of canons of interpretation was expounded.
These are the rules which are evolved for determining the real intention of the
legislature.

It is not necessary that the words used in a statute are always clear, explicit and
unambiguous and thus, in such cases it is very essential for courts to determine a clear
and explicit meaning of the words or phrases used by the legislature and at the same
time remove all the doubts if any. Hence, all the rules mentioned in the article are
important for providing justice

30
On the basis of the above description of the rules of interpretation, it can rightly be
concluded that the above rules of interpretation are like the tools of carpenter or
sculptor. To a great extent their value depends on the fact that with what care or skill
they are used. Actually , it depends upon the wisdom and care which the judges take in
interpreting the statutes by applying the above rules of interpretation.

Presumption in statutory interpretation

1. PRESUMPTION REGARDING JURISDICTION :

There is a strong presumption that a statute should not be given such an interpretation
as takes away the jurisdiction of the courts unless the language of the statute
unambiguously so states. The presumption is that since the legislature ordinarily does
not intend that justice should be out of bounds for the subjects, the courts must be
presumed to have jurisdiction unless the legislature by clear words or by clear necessary
implications have ousted jurisdiction. Since jurisdiction is bestowed in a court by
legislation, legislation alone can take away the same. The parties to a dispute can neither
create by mutual consent jurisdiction of a court to try their dispute nor can they take it
away by mutual consent if in fact a court is vested with jurisdiction in the matter. Mutual
consent of parties, however, can create an arbitrator and the arbitrator may be a judge
also.

There is a strong presumption that civil courts have jurisdiction to decide all questions
of civil nature. The exclusion of jurisdiction of civil courts is therefore not to be readily
inferred and such exclusion must either be explicitly expressed or clearly implied. It is
a principle by no means to be whittled down and has been referred to as a fundamental
rule. As a necessary corollary of this rule, provisions excluding jurisdiction of civil
courts and provisions conferring jurisdiction on authorities and tribunals other than civil
courts are strictly construed. The rule that the exclusion of jurisdiction of civil courts is
not to be readily inferred is based on the theory that civil courts are courts of general
jurisdiction and the people have a right, unless expressly or implicitly debarred, to insist
for free access to the courts of general jurisdiction of the State.
31
Indeed, the principle is not limited to civil courts alone, but applies to all courts of
general jurisdiction including criminal courts. Exclusion of jurisdiction of ordinary
criminal courts can be brought about by setting up courts of limited jurisdiction in
respect of the limited field, only if the vesting and the exercise of that limited
jurisdiction is clear and operative and there is an adequate machinery for the exercise
of the limited jurisdiction. But the rule against exclusion of jurisdiction of courts like
other rules of construction is attached only where two or more reasonably possible
construction are open on the language of the statute and not where the legislative intent
is plain and manifest to oust the jurisdiction. The Supreme Court stated that the first and
the primary rule of construction is that the intention of the legislature must be found in
the words used by the legislature itself. If the word used are capable of one construction
only then it would not been open for the courts to adopt any other hypothetical
construction on the ground that such a construction is more consistent with the alleged
object and policy of the Act. The words used in the material provisions of the
statue must be interpreted in their plain grammatical meaning and it is only when such
words are capable of two constructions that the question of giving effect to the policy,
or object of the Act can legitimately arise. When the material words are capable of two
constructions, one of which is likely to defeat or impair the policy of the Act whilst the
other is likely to assist the achievement of the said policy, then the courts would prefer
to adopt the latter construction. It is only in such cases that it becomes relevant to
consider the mischief and defect which the Act purposes, to remedy and correct.

The superior court can in a proper case exercise its jurisdiction even in favour of a
petitioner who has allowed the time to appeal to expire or has not perfected his appeal,
for example, by furnishing security required by the statute, when an inferior court or
tribunal by discarding all principles of natural justice and all accepted rules of procedure
arrived at a conclusion which shocks the sense of justice and fairly or the inferior court
or tribunal acts wholly without jurisdiction or patently in excess of jurisdiction.

32
The Supreme Court has held the jurisdiction of the Court was not excluded and laid
down the following principles :

1. Where the state gives finality to the orders of the special tribunals the jurisdiction
of the civil court must be held to be excluded if there is adequate remedy to do what the
civil courts would normally do in a suit. Such provision, however, does not exclude
those cases where the provisions of the particular Act have not been complied with or
the statutory tribunal has not acted in conformity with the fundamental principles of
judicial procedure.

2. Where there is an express bar of the jurisdiction of the court, an examination of

the scheme of the particular Act to find the adequacy or the sufficiency of the remedies
provided may be relevant but is not decisive to sustain the jurisdiction of the civil court,
where there is no express exclusion, the examination of the remedies and the scheme of
the particular Act to find out the amendment becomes necessary and the result of the
inquiry may be decisive. In the latter case, it is necessary to see if the statute creates a
special right or a liability and provides for the determination of the right or the liability
and further lays down that all questions about the said right and liability shall be
determined by tribunals so constituted, and whether remedies normally associated with
actions in civil courts are prescribed by the said statute or not.
3. Challenge to the provisions of the particular Act as ultra vires cannot be brought
before the tribunals constituted under that Act. Even the High Court cannot go into that
question on a revision or reference from the decision of the tribunals.
4. Where a provision is already declared unconstitutional or the constitutionality of
any provision is to be challenged, a suit is open. A writ of certiorari may include a
direction for refund if the claim is clearly within the time prescribed by the Limitation
Act, but it is not a compulsory remedy to replace a suit.
5. Where the particular Act contains no machinery for refund of tax collected in
excess of the constitutional limits or illegally collected, a suit lies.
6. Questions of the correctness of the assessment apart from its constitutionalties
are the decisions of the authorities and a civil suit does not lie if the orders of the
authorities are declared to be final or there is an express prohibition in the particular Act

33
in either case, the scheme of the particular Act must be examined because it is a relevant
inquiry.

7. An exclusion of the jurisdiction of the civil court is not to be readily inferred unless
the conditions above set down apply. The Industrial Disputes Act, 1947 also furnishes
an example of an Act which creates new rights and obligations and provides machinery
for adjudication of disputes pertaining to them. The Supreme Court has held that if an
industrial dispute relates to the enforcement of a right or an obligation created under the
Act then the only remedy available to the suit is to get an adjudication under the Act.
This case was followed in holding that for wrongs created by the Act
the only remedy is what is provided in the Act.

2. Presumption of prospective operation of statute

The operation of statutes is of two types, i.e. the Prospective operation which seeks to
govern current activities, events & the Retrospective operation of statutes which seeks
to govern past acts, events as to impair an existing right or obligation. The use of
expression retrospective operation of statutes is at times vague & misleading. In a broad
sense it may be right to say that statute has enactment retrospective operation when it
purports to touch facts or events which took place before the enactment come in to force
it is sometime used in different sense when vested right are sought to be affected . it is
some time loosely used in context of certain functions of law which the law maker
deems it necessary to introduce in existing laws for the purpose of setting certain matters
right or avoiding certain mischief which might possible but for change in law; &this is
done by laying down that certain facts or things which did not exists fact exists shall be
deemed to have existed. In this project I have discussed concept of retrospective
operation of statutes, general principals relating to retrospective operation of statutes &
retrospectively of other statutes with special reference to penal laws statutes with the
help of recent case laws & with reference to some basic rules enunciated by prominent
authors on the construction of statutes.

34
CONCEPT OF RETROSPECTIVE OPERATION OF STATUTES

The word ‘retrospective’ is somewhat ambiguous. It literally means looking

backwards; having reference to a state of things existing before the Act in question. A
retrospective statute contemplates the past and gives to a previous transaction some
different legal effect from that which it had under the law when it occurred or transpired.

“A statute is to be deemed retrospective which takes away or impairs any vested right
acquired under existing laws, or creates a new obligation, or imposes a new duty, or
attaches a new disability in respect of transactions or considerations already past.”

In Maxwell on the Interpretation of Statutes, 12th Edition, the statement of law in this
regard is stated thus: "Perhaps no rule of construction is more firmly established than
thus - that a retrospective operation is not to be given to a statute so as to impair an
existing right or obligation, otherwise than as regards matters of procedure, unless that
effect 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. The rule has, in fact, two aspects, for it,
"involves another and subordinate rule, to the effect that a statute is not to be construed
so as to have a greater retrospective operation than its language renders necessary.”

It is well settled that the Union as well as the State Legislatures have plenary powers of
legislation and can legislate prospectively as well as retrospectively Hajee Abdul
Shukoor & Co. vs. State of Madras in this case court observes that Such retrospective
legislation may either be made by express words or by necessary intendment. It,
therefore, depends on the wording of the statute, where express words do not exist,
whether by necessary intendment retrospectively should be inferred and how far
backwards. Prospective or retrospective General rule of construing statute to have
prospective effect Exceptions to It does not apply to disqualifying, curative or
clarificatory statutes If on a plain or literal reading legislative intendment is clear that it
is to have retrospective effect and it does not produce any absurdity or ambiguity
thereby, court will give effect thereto Statute which takes away a right under the existing

35
law is retrospective in nature Statute enacted for the benefit of the community as a whole
may be construed to have retrospective operation.

POWER TO MAKE RETROSPECTIVE LAWS

The Union Parliament and State Legislatures have plenary powers of legislation within
the fields assigned to them and subject to certain constitutional and judicially
recognized re¬strictions'2 can legislate prospectively as well as retrospectively.
Competence to make a law for a past period on a subject depends upon present
competence to legislate on that subject. By retrospective legislation, the Legislature
may make a law which is operative for a limited period prior to the date of its coming
into force and is not operative either oh that date or in future 3. The power to make
retrospective legislation enables the Legislature to obliterate an amending Act
completely and restore the law as it existed before the amending Act.4 This power has
also been often used for validating prior executive and legislative acts by retrospectively
curing the defect which led to their invalidity and thus even making ineffective
judgments of competent courts declaring the invalidity. It is not necessary that the
invalidity must be cured by the same Legislature which had passed the earlier invalid
Act. Thus if a state Legislature passes an Act subject which fails outside its competence
and within the competence of Parliament and is for that reason held invalid, Parliament
can by passing retrospective Act which incorporates the State Act cure the invalidity .

STATUTES DEALING WITH SUBSTANTIVE RIGHTS:

It is a cardinal principle construction that every statute is prima facie prospective unless
it is expressly or by necessary implication made to have retrospective operation. But the
rule in general is applicable where the object of the statute is to affect vested rights or
to impose new burdens or to impair Existing obligations. Unless there are words in the
statute sufficient to show the intention of the Legislature to affect existing rights, it is
"deemed to be prospective only 'nova constitutio futurisformam imponere debet non
praeteritis’

36
In the words of LORD BLANESBURG, "provisions which touch a right in existence at
the passing of the statute are not to be applied retrospectively in the absence of express
enactment or necessary intendment."8 LOPES, L.J. observed that "Every statute which
takes away or im¬pairs vested rights acquired under existing laws, or creates a new
obligation or imposes a new duty, or attaches a new disability in respect of transactions
already past, must be presumed to be intended not to have a retrospective effect”

As a logical corollary of the general rule, that retrospective operation is not taken to be
intended unless that intention is manifested by express words or necessary implication,
there is a subordinate rule to the effect that a statute or a section in it is not to be
construed so as to have larger retrospective operation than its language renders
necessary.9 In other words close attention must be paid to the language of the statutory
provision for determining the scope of the retrospectively intended by Parliament.;10
But if he liter reading of the provision giving retrospectively produces absurdities and
anomalies, a case not prima facie within the words may be taken to be covered, if the
purpose of the provision indicates that the intention was to cover it.

It has been said that "the basis of the rule is no more than simple fairness which ought
to be the basis of every legal rule."

It is not necessary that an express provision be made to make retrospective and the
presumption against retrospectively may be rebutted by necessary. Implication
especially in a case where the new law is made to cure an acknowledged evil for the
benefit of the community as a whole.

The rule against retrospective construction is not applicable to a statute merely "because
a part of the requisites for its action is drawn from a time antecedent to its passing". If
that were not so, every statute will be presumed to apply only to persons born and things
come into existence after its operation and the rule may well result in virtual
nullification of most of the statutes. An amending Act is, therefore, not retrospective
merely because it applies also to those to whom pre-amended Act was applicable if the
amended Act has operation from the date of its amendment and not an anterior date.

37
Another principle flowing from presumption against retrospectivity is that "one does
not expect rights conferred by the statute to be destroyed by events which took place
before it was passed."

In certain cases, a distinction is drawn between an existing right and a vested right and
it is said that the rule against retrospective construction is applied only to save vested
rights and not existing rights. The distinction, however, has not been maintained in other
cases. The word retrospective' has thus been used in different senses causing a certain
amount of confusion.15 The real issue in each case is as to the scope of particular
enactment having regard to its language and the object discernible from the statute read
as a whole.

STATUTES DEALING WITH PROCEDURE:

In contrast to statutes dealing with substantive rights, statutes dealing with merely
matters of procedure are presumed to be retrospective unless such a construction is
textually inadmissible.16 As stated by LORD DENNING: "The rule that an Act of
parliament is not to be given retrospective effect applies only to statute' which affect
vested rights. It does not apply to statutes which only alter the form of procedure or the
admissibility of evidence, or the effect which the courts give to evidence". If the new
Act affects matters of procedure only, then, prima facie, "it applies to all actions pending
as well as future". In stating the principle that "a change in the law of procedure operates
retrospectively and unlike the law relating to vested right is not only prospective".

The Supreme Court has quoted with approval the reason of as expressed
in MAXWELL: "NO person has a vested right in any course of procedure. He has only
the right of prosecution or defence in the manner prescribed for the time being by or for
the court in which the case is pending and if by an Act of Parliament the mode of
procedure is altered he has no other right than to proceed according to the altered mode”.

A change of forum except in pending proceedings 55 is a matter of procedure and,

therefore, if a new Act requires certain types of original proceedings to be instituted
before a special tribunal constituted under the Act to the exclusion of civil courts, all

38
proceedings of that type whether based on old or new causes of action will have to be
instituted before the tribunal.

The non-executability of a decree passed by an Indian court against a foreigner at a

place in foreign country is also a matter of procedure and the decree becomes executable
if the place where it is being executed ceases to be a foreign country and becomes part
of India and the Indian Code of Civil Procedure is extended to that place.

Section 45B the Employees' State Insurance Act, 1948, which enables the Employees'
State Insurance Corporation to recover arrears of contribution from the employers as
arrears of land revenue, has been held to be procedural and applicable to arrears falling
due before coming into force of the SECTION on January 28, I968.The reason is that
statutes providing for new remedies for enforcement of an existing right are treated as
procedural and apply to future as well past causes of action.

Maxims of statutory interpretation

1. Delegatus Non-Potest Delegare

The legal maxim ‘Delegatus Non-Potest Delegare’ does not lay down a rule of law. It
merely states a rule of construction of a statute. Generally, sub-delegation of legislative
power is impermissible, yet it can be permitted either when such power is expressly
conferred under the statute or can be inferred by necessary implication. This is so
because there is a well-established principle that a sub-delegate cannot act beyond the
scope of power delegated to him.

The practice of sub-delegation has been subjected to considerable criticism by jurists.

The position is well established that the maxim ‘Delegatus Non-Potest Delegare’
applies in the area of delegated legislation also and sub-delegation of power is not
permissible unless that power is conferred either expressly or impliedly.

39
There arises the question of the publication of sub-delegated legislation. It may,
however, be pointed out that by the decision of the Supreme Court in Narendra Kumar
v. Union of India, the publication of sub-delegated legislation has been declared to be
necessary to give it legal force when the Parent statute contains the formula i.e requiring
the notification of rules in Gazzette.

2. Expressio Unius Est Exclusio Alterius

The explicit mention of one (thing) is the exclusion of another.

The legal maxim simply means that if one of the two possibilities of an event is talked
about expressly, then the second possibility is kicked out by default. Since simultaneous
occurrence of both possibilities of a single event is undesirable and not valid under the
law. In order, to make a particular outcome valid and admissible, the other aspect has
to be completely knocked out. It can also be understood as; when one or more things of
a class are expressly mentioned others of the same class are excluded. The legal maxim
forms the basis of the statutory provisions of law and states that inclusion of a specific
category or class, excludes the other, completely. Since inclusion of two contradictory
statements is violative of the principle of natural justice. It is also a prominent
characteristic of law that an implied exclusion argument lies whenever there is reason
to believe that if the legislature had meant to include a particular thing within the ambit
of its legislation, it would have referred to that thing expressly. Because of this
expectation, the legislature’s failure to mention the thing becomes grounds for inferring
that it was deliberately excluded. Although there is no express exclusion, the exclusion
is implied. The doctrine is useful not only in determining the extents of contracts but
also plays an important role in the construction of statutes.

It can be interpreted as- Where certain persons or things are specified in the law, contract
or will, an intention to exclude all others from its operation shall be inferred. In such a
case, the reference to the assignment to a financial institution excludes assignment to
any other entity. It is pertinent to note that, the express inclusion of one (maybe an act,

40
a statute, or a provision), leads to exclusion of the other. This is a well-established
condition, that express inclusion of one means implied exclusion of others.

Let us assume that, initially, A and B enter into a written contract over a certain matter,
then, later on, B cannot depute C on his behalf to execute the contract. Therefore, it can
be observed that entering an express contract between the two parties A and B excludes
any possibility of a third party, C, stepping into the contract during its execution.

Likewise, if a specific act is barred by the law of land, expressly, under any of its
statutes, then its commission is impliedly illegal and punishable. For instance,
smuggling is an illegal act and is expressly barred under the Indian Penal Code, any act
in furtherance of the same act or any other act of this class is illegal and shall lead to
harsh consequences.

Another example is that, the inclusion of an expressions like, ‘notwithstanding anything

contained in this section’ in the provision bars the possibility of inclusion of any other
condition.

3. Expressum facit cessare tacitum –

Express mention of one thing implies the exclusion of other. This doctrine has been
applied by this Court in various cases to enunciate the principle that expression
precludes implication. Union of India v. Tulsiram Patel, AIR 1985 SC 1416. It is always
safer to apply plain and primary rule of construction. The first and primary rule of
construction is that intention of the legislature is to be found in the words used by the
legislature itself. The true or legal meaning of an enactment is derived by construing
the meaning of the word in the light of the discernible purpose or object which
comprehends the mischief and its remedy to which an enactment is directed. (State of
Himachal Pradesh v. Kailash Chand Mahajan, AIR 1992 SC 1277 and Padma Sundara
Rao v. State of T.N., AIR 2002 SC 1334).

It is always important for the Court to keep in mind the purpose which lies behind the
statute while interpreting the statutory provisions. This was stated by this Court in
Padma Sundara Rao’s case (supra) as under:-
41
The first and primary rule of construction is that the intention of the legislation must be
found in the words used by the legislature itself. The question is not what may be
supposed and has been intended but what has been said. “Statutes should be construed,
not as theorems of Euclid”, Judge Learned Hand said, “but words must be construed
with some imagination of the purposes which lie behind them”.

Generalia specialibus non derogant is a Latin maxim. It is a maxim used for statutory
interpretation.

 Generalia stands from general;

 Specialibus stands for special.

When interpreted, it means that general laws do not prevail over special laws or, the
general does not detract from specifics.

Justice Griffith said in R v Greenwood, “The maxim generalia specialibus non derogant
means that, for the purposes of interpretation of two statutes in apparent conflict, the
provisions of a general statute must yield to those of a special one.”

When a law is questioned before the courts, the courts assume that the legislature
enacted the law (under discussion) keeping in mind the welfare of society at heart. Thus,
repealing a law is not favoured and is done only under exceptional circumstances. In
case of conflict of interpretation of statutes, this maxim is applied.

4. In pari delicto potior est conditio possidentis

It is a Latin phrase for "in equal fault, better is the condition of the possessor." This
means, when the parties are equally at wrong, the condition of the possessor is
considered to be better. Simply put, it means a person in a wrongful act cannot sue
another person in the same wrongful act. When two parties have equally wronged,
courts will generally not interfere with the status quo, which is the reason why the
possessor is at benefit. The doctrine is also known as the dirty hands or unclean hands
doctrine.

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 Interpretation with reference to the subject matter and purpose

1. Interpretation of Taxing Statute as Strict Construction and Exemptions

Taxation is statutory filed. No tax can be levied and collected except according to the
authority of law. There is fiscal legislation every year much of it prepared in great
secrecy and under server pressured of time, and it directly affects most people. This
legislation is complicated and elaborated because of intricate prepositions it has to
express, and the verity of circumstances and conditions in which it falls to be applied
and the refined distinctions it embodies in order to attempt to cater expressly for them.
Consequently, the body of tax statues as whole is voluminous and complex in structure
as well as in concept and expression. There is another reason for the fiscal legislation
being complex and complicated. In fact, taxes are as complex as life. The moralist calls
for just taxes, but taxes cannot just be just, if we recall the scheme of special bearer
bonds for mopping up black money. They cannot simply be simple. The businessman
demands practical taxes, but financially history proves that it is impracticable to make
them practical. Exemption Notifications have to be strictly construed; if exemption is
available on complying with certain conditions, conditions have to be complied with;
plea of 'substantial compliance' depends upon facts of each

Principle of Strict Construction - The manner in which the Income-Tax Act has been
drafted leaves great scope for litigation. For this purpose, principles of interpretation
have to be applied. These principles themselves are not infallible and would depend on
the facts of each case. The two well-settled principles of interpretation, as applicable in
taxing statutes, are: (1) There is no equity in tax, and the principle of strict or literal
construction applies in interpreting tax statutes. Hence, on the plain language of the
statute, if the assessee is entitled to two benefits, he has to be granted both these benefits;
and (2) If there are two reasonable interpretations of taxing statutes, the one that favors
the assessee has to be accepted.

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 2. Construction of Remedial Statutes

Remedial statutes and statutes which have come to be enacted on demand of the
permanent public policy generally receive a liberal interpretation. On constructing a
remedial statute the courts ought to give to it ‘the widest operation which its language
will permit. They have only to see that the particular case is within the mischief to be
remedied and falls within the language of the enactment.

The labour and welfare legislations should be broadly and liberally construed and while
construing them due regard to the Directive Principles of State Policy (Part IV) and to
any international convention on the subject must be given by the courts. In MC Mehta
v. State of Tamil Nadu the Child Labour (Prohibition and Regulation) Act, 1986 was
construed. The Court, having regard to the Directive Principles in Arts 39(e), 39(f), 4(i),
45 and 47 of the Constitution, the fundamental rights in Art 24, the International
convention on the right of the child, not only directed a survey of child labour and its
prohibition but also directed payment of Rs. 25,000 as contribution by the employer to
the Child Labour-Rehabilitation-cum-Welfare Fund or alternative employment to
parent/guardian of the child to ameliorate poverty and lack of funds for welfare of the
child which is the main cause of child labour.

3. Construction of Penal Statutes

The principle that a statute enacting an offence or imposing a penalty is to be strictly

construed is not of universal application which must necessarily be observed in every
case. It is now only of limited application and it serves in the selection of one when two
or more constructions are reasonably open. The rule was originally evolved to mitigate
the rigour of monstrous sentences for trivial offences and although that necessity and
that strictness has now almost vanished, the difference in approach made to a penal
statute as against any other statute still persists.

According to Lord Esher, MR, the settled rule of construction of penal sections is that
‘if there is a reasonable interpretation which will avoid the penalty in any particular case
we must adopt that construction. If there are two reasonable constructions we must give
the more lenient one.’

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Interpretation of penal provisions must be in consonance with the principles underlying
fundamental rights. Any provision which visits an accused with adverse consequences
without affording him any remedy to disprove an item of evidence which stands against
his innocence, is inconsistent with the philosophy enshrined in Art 21. It was held by
the Supreme Court that they should so interpret such a provision as to dilute it to make
it amenable to Art 21 of the Constitution.

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

4. mens rea in statutory offences

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

45
“It is of the utmost importance for the protection of the liberty of the subject that a court
should always bear in mind that, unless a statute, either clearly or by necessary
implication, rules out mens rea as a constituent part of a crime, the court should not find
a man guilty of an offence against the criminal law unless he has a guilty mind.”

5. Vicarious liability in statutory offences

Under criminal law also one person can become liable for the act of the other if he is a
party to the offense. For instance, a driver of a car which goes and robs a bank will also
be liable even though the driver did not get out of the car. The principle which is
followed in the criminal law is that a person may be held liable as the principal offender,
even though the actus reus was committed by some other person. The person
committing the act on the instruction of the other will not be considered as innocent and
will also be held liable. The law focuses on the relationship between the two parties and
attributes the act of the one to the other. It should be noted that the concept of vicarious
liability is a civil concept and in the case of criminal law it is an exception rather than a
rule.

Although the doctrine of vicarious liability is generally applicable to civil law, in some
exceptional cases it is applicable in criminal cases also. Section 149 of the IPC.
Under Section 149 of the IPC if any member of an unlawful assembly commits any
offense in furtherance of a common objective, every member of that unlawful assembly
will be held liable for that offense.

Section 154[3] of the IPC relates to occupiers or owner of a land. If such occupier or
owner or any person who has some interest in the piece of land does not inform the
proper public authority about unlawful assembly on that land, or do not take necessary
steps taking place on the land, will also be held liable for such activities. The liability
has been fixed on the assumption that being the owner or the occupier of the land; the
person will be able to control the activities which is happening on their property. Section
155[4] also makes a person vicariously liable on the owner or occupier of the land for

46
the omission of their agent or manager if any activity takes place on the land and the
agent or manager does not prevent illegal activities happening on their property. Section
156[5] imposes personal liability on the agent or the manager if some illegal activity
takes place on the particular property.

Section 268[6] and Section 269[7] deals with public nuisance and makes the master
personally liable if the servant is creating any public nuisance. Section 499[8] of the
IPC also makes the master personally liable in case the servant defames somebody
(provided it falls under the definition of defamation given under this section).

6. Liability of Corporations in Cases of Criminal Wrongs

The earlier view was that a corporation cannot commit a criminal wrong. But that view
has changed in the present scenario. A corporation has a separate legal entity and is an
artificial person. But it cannot work on their own. It works through its agents. So
whenever some act is committed by a company which is not legal, its agents are
punished and hence, the liability is necessarily vicarious. A corporation cannot commit
crimes like rape, murder, perjury, etc. But it has been recognized that a company can
commit activities which have criminal intent.

The legal person, with the exception of the state and the public authorities, is criminally
liable for the crimes committed in the accomplishment of the activity object or in the
interest or on behalf of the legal person. Public institutions are not criminally liable for
the crimes committed in the exercise of an activity that cannot be the subject of the
private domain. The criminal liability of the legal person does not exclude the criminal
liability of the natural person who contributed to the commission of the same deed. The
criminal liability of the legal person is direct and personal, which means that the
eventual right of recourse of the legal person against the natural person who is
responsible for committing the crime is exercisable on the basis of criminal civil
liability.

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 7. Liability of State for Acts of Employees

In England, the state cannot be held liable for the acts which have been committed by
its servant. The principle behind this is based on the doctrine of Rex non-potest
peccare which states that the King can do no wrong.

In India also, the same position existed till 1967 and the State couldn’t be sued for the
action of its servants. But in the judicial pronouncement of Superintendent and
Remembrance of Legal Affairs, West Bengal v Corp. of Calcutta, it was held by the
Court that the principle that the State isn’t bound by any statute is not the law of the
land after the Constitution has come into force. Civil and criminal statues now apply to
citizens and state alike. In the case of Saheli v, Commissioner of Police, the Court was
of the opinion that the concept of sovereign immunity does not hold good with the
evolution of law, and Constitutional Regime and the State can also be made liable.

It can be said that the concept of vicarious liability is a civil one, but with the evolution
of law, the Courts have started to apply the doctrine to criminal cases also. Sometimes
it becomes very important to fix a liability on the principal, so as to protect the interest
of the aggrieved party and also to avoid blame game between the parties, which in turn
may delay justice.

8. EVASION OF STATUTES – CONSTRUCTION TO PREVENT EVASION :

It is permissible to evade an Act of Parliament in the sense that a person may not do
that which the Act prohibits but he is free to do anything which though equally
advantageous to him as that which is prohibited is nevertheless outside the prohibition,
penalty or burden imposed by the Act. It is well established that penal and taxing laws

48
are not to be extended by analogy to cover acts and situations not within the words of
the state on any doctrine of substance of the matter. But this principle has no application
where what is done is really the thing prohibited although under colour or cloak of
different transaction not prohibited by the statute. It is not permissible to evade an Act
of Parliament by resorting to a fraudulent device or by covering the reality by a non-
genuine transaction. The word ‘evade’ is thus ambiguous and is used in two
senses, and in spite of various explanations given by the courts as to the two different
meanings of that word, the position is not very much different from what Lord
Cranworth, LC found in 1855. Lord Chancellor said “I never understood what is meant
by an evasion of an Act of Parliament; either you are within the Act or you are not
within it; if you are not within it you have a right to avoid, to keep out of prohibition. A
citizen is free to so arrange his business that he is able to avoid a law and its evil
consequences so long as he does not break that or any other law. A blatant tax avoidance
scheme which brings profit to a person cannot lead to the taxation of the person on the
ground that he has earned profit by trade unless his activities an the part played by him
in furtherance of the scheme amount to trade in the accepted sense or unless the
legislature enacts a special definition or provision to tax such activities. The taxing laws
have constantly been the subject of evasion in the sense of avoiding something
disagreeable and there are many dicta to the effect that a citizen is entitled to so arrange
his affairs that the tax burden does not fall on him and that there is nothing illegal or
immoral in adopting such a course. Section 195, Code of Criminal Procedure, 1898,
which provides that cognizance of certain offences is not to be taken except on the
complaint in writing made by the relevant court, cannot be evaded by the device of
charging a person with an offence to which that section does not apply and then
convicting him of an offence to which it does apply on the ground that the latter offence
is a minor one of the same character or by describing the offence as punishable
under some other section of the Penal Code, though in reality the offence falls in the
category of offences mentioned in Section 195. The principle, that the courts can go
behind the form and reach the reality, has to be applied with certain reservations in
determining correct amount of duty payable on document under the Indian Stamps Act,
1899. The duty being imposed on instruments and not upon transactions, court can only

49
construe the document as it stands for determining the proper amount of duty, and
although the name given to the document by the parties may not be decisive of its
character, it is not permissible to go behind the document and to hold an enquiry
as to the real nature of the transaction as distinguished from the real nature of the
document.

On the general principle that when alternative constructions are open, a statute should
be so construed as to give effect to its object or policy, the courts to the extent the
language permits, will be slow to adopt such a construction which may lead to large
scale evasion of the Act resulting in its object being defeated.

Statute affecting the crown or the state

The general rule is that a statute does not bind the Crown (ministers, Crown servants,
or, to use the modern terminology, individuals in the public service of the Crown) unless
there is express provision to that effect or it arises by necessary implication (Province
of Bombay v Municipal Corporation of the City of Bombay [1947] AC 58, 61). Lord
Keith of Kinkel favoured the first of these two possibilities, observing that ‘it is most
desirable that Acts of Parliament should always state explicitly whether or not the
Crown is intended to be bound by any, and if so which, of their provisions’ (Lord
Advocate v Dumbarton District Council [1990] 2 AC 580, 604). Increasingly, Acts of
Parliament do exactly that. If a statute is silent on the point, it has become increasingly
difficult to convince a court that it binds the Crown: as Lady Hale PSC has
straightforwardly put it, ‘nothing would have been easier than to insert such a
provision’ (Black, at [48]).

‘The appropriate rule, as I understand it, is that in an Act of Parliament general words
shall not bind the Crown to its prejudice unless by express provision or necessary
implication. That, however, is and has long been regarded as a rule of construction…’
(Lord Macdermott, Madras Electric Supply Corporation v Boarland [1955] AC 667,
685)

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 Whether or not an Act of Parliament binds the Crown is not a question of immunity
from liability but rather one of statutory construction (Madras Electric Supply
Corporation Ltd v Boarland [1955] AC 667, 685). The principal focus is on legislative
purpose, something which is to be ascertained from the statutory language: the Crown
will be bound if a statute’s purpose is otherwise frustrated (R (Revenue and Customs
Commissioners) v Liverpool Coroner [2014] EWHC 1586 (Admin), [2015] QB 481, at
[46]). Importantly, ‘it is not an objection to the Crown being bound that the Act imposes
criminal liability

Principle of Constitutional Interpretation

1. Interpretation of the constitution :-
A written constitution is basically a form of statute and many of the principles of the
ordinary principles of interpretation. The enactment of the Indian Constitution was an
ambitious political experiment whereas the Supreme Court while interpreting the
provisions enshrined primarily focused on the plain meaning of the words. It is
important for the Constitution has to be interpreted in a liberal and broad manner such
that any law does not violate the basic structure of the Constitution. The constitution
of India came into force 70 years ago and there have been different phases of
constitutional interpretation in these seven decades where the Apex Court decided to
take a step back from the political connotations.

The first phase where it was interpreted literally; the second phase where the Courts
began to scrutinize all possible methods of interpretation as a result of which the basic
structure doctrine came into existence; the third phase can be described as phase of
eclecticism where the decisions by the Apex Court were based on fairness; the fourth
phase is the current one where the court has begun to interpret the provision in a
transformative manner. This article will discuss different approaches adopted by the
Court while interpreting the Constitution of India. The approaches are: Doctrinal,
Textualist and Purposive.
At the heart of every constitutional decision is the courts assessment of what the
constitution means, why it exists in the shape and form that it does, and, above all,
51
 what injustices it is meant to remedy. There are a number of principles used by the
courts while interpreting the constitution. The constitution of India as the preamble
suggest is the constitution which the people have given to themselves who is the
beneficiary of its provisions and as described by Churchill as: little man with a little
pencil with a little ballot to vote should never be neglected. It is the responsibility of
the judiciary to apply its mind in the interpreting any provision in question which
affects the individual dignity in any manner. The interpretation by the Judges in an
innovative manner has to be continued keeping in mind the historical growth of the
India’s constitution.

2. Doctrine of Colourable Legislation

The doctrine of colourable legislation basically in common parlance refers to the
question of competency of the legislature while enacting the provisions of law. It
basically suggest the practice carried out by the legislature whereby it enacts a provision
which at the face cannot be authorized by the constitution by the coloring the provisions
with a substitute purpose which indirectly allows the original intention.

This doctrine is based upon the legal maxim Quando aliquid prohibetur ex directo,
prohibetur et per obliqum which means that what cannot be done directly, cannot be
done indirectly. In a nutshell the purpose of this doctrine is to check that the legislature
while framing the laws does not transgress the provisions enshrined under the
Constitution of India.

The Supreme Court of India in the matter of K.C. Gajapati v. State of Odisha, explained
the doctrine and held that:
if the constitution of a State distributes the legislative spheres marked out by specific
legislative entries or if there are limitations on the legislative authority in the shape of
fundamental rights, questions do arise as to whether the legislature in a particular case
in respect to the subject matter of the statute or in the method of enacting it, transgressed
the limits of the constitutional power or not. Such transgression mat be patent, manifest
and direct, but may also be distinguished, covered and indirect and it is the latter class

52
of cases that the expression colourable legislation has been applied in certain judicial
pronouncements.

In our Constitution, this doctrine is usually applied to Article 246 which separates the
legislative competencies of the Parliament and the State legislative assemblies by
stating the different subject under the different lists under Schedule VII upon which the
respective legislature can draft the laws. This doctrine comes into the fore when the
legislature drafts a law which it is not competent to draft and the fate of the same law is
decided by the courts using the doctrine of colourable legislation.

3. Doctrine of Pith and Substance

This doctrine highlights or focuses upon to understand the true nature and characteristic
of law. The doctrine signifies that it is the real subject matter which is to be challenged
and not its incidental effects on another field. The application of this doctrine can be
illustrated through Article 246 which enumerates the legislative competency mentioned
in the lists under the Seventh Schedule. It is pertinent to the fact that the legislature will
make laws on the subject matter enshrined under the lists, but there might be incidental
trespass by the legislature which ultimately result in the declaration of that specific law
as ultra vires. The rationale behind this doctrine that the Central and State Legislature
at any point of time trespass the field protected for each other.
The Supreme Court for the first time applied this doctrine and upheld the same in State
of Bombay v. F.N.Balsara. In brief the facts of the case being that the State of
Maharashtra restricted the sale and possession of liquor by the provisions of the Bombay
Prohibition Act and the same was challenged with the rationale that it was an
interference on the act of importing and exporting of the liquor through the borders. The
apex court held that the impugned legislation was in pith and substance a State subject
even though it incidentally encroached the subject enumerated in List I. The rationale
and the spirit behind being that every law will be declared invalid by citing the reason
of it being in conflict with the subject matter mentioned in another list.

4. Doctrine of Eclipse

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The doctrine of eclipse suggests that when any law made by the Legislature is
derogatory with Part III of the Constitution of India, then that law will be treated as
invalid and inoperative to the extent to which the provisions are inconsistent to the
Fundamental Rights. Article 13(1) emphasizes the fact that the State shall not make any
law which will be inconsistent with the fundamental rights and any such law made will
be void.

The Apex court in the case of the Keshava Menon v. State of Bombay, the facts of the
case being that the petitioner was prosecuted under the Indian Press (Emergency
Powers) Act, 1931 for publishing a pamphlet without seeking prior permission. The
Court held that the provisions mentioned under the Indian Press Act are violative of
Article 19(1) (a) and are void to the extent there lies inconsistency.

In I.C.Golaknath v. State of Punjab, it was held that the Parliament had no power to
dissect or break the fundamental rights and further the court negated with the
absoluteness of Article 368 and concluded that the amending powers under Article 368
are restrictive in nature and therefore Article 368 was eclipsed. However, the
I.C.Golaknath was overruled by the Apex Court after the judgement pronounced in the
famous case of Kesavananda Bharti v. State of Kerela.

5. Doctrine of Severability
This particular means where a particular provision is not in parlance with the
fundamental rights enshrined under Part III of the constitution and when such provision
which is not consistent can be separated and will be declared void by the Court as a
result of which the rest provision remains consistent with the relevant provisions.

While applying this doctrine, the court does not declare the whole statute or act as void
but only the provision or any part violative of the Part III of constitution and which can
be separated from the rest of the provision.

The doctrine was applied by the Apex Court in the case of A.K.Gopalan v. State of

54
Madras, where it was held that Section 14 of the Preventive Detention Act, 1950 was
inconsistent with Article 22 of the Constitution only to the part which prohibited the
person detained to make representation or even disclose the grounds to the court was
ultra vires.

Thus, only the repugnant part of the impugned act will be declared void and not the
whole Act.

Purposive Interpretation
Purposive Interpretation as the name suggests means that the court while interpreting
the statute or the constitution looks into the purpose for which the the provision or the
statute in question was enacted. Thus, the court will delve into the purpose of the
enactment in order to derive the correct interpretation such that it result in delivery of
justice.

The Supreme Court in the case of State (NCT of Delhi) v. Union of India held:
Constitutional provisions are required to be understood and interpreted with an object-
oriented approach and a Constitution must not be construed in a narrow and pedantic
sense. The judiciary must interpret the Constitution having regard to the spirit and
further by adopting a method of purposive interpretation.
The courts take the aid of the committee reports, constituent assembly debates, early
drafts or any materials from the pre-enactment phase.

It is for us not to forget the dissenting judgement by Justice Vivian Bose in the case of
State of West Bengal v. Anwar Ali Sarkar, where he stated that the provisions of the
Constitution are not mathematical formulae which have their essence in mere form.
They constitute a framework of Government written for men of fundamentally differing
opinions and written as much for the future as the present... they are not just dull lifeless
words static hidebound as in some mummified manuscript, but living flames intended
to give life to great nation and order its being, tongues of dynamic fire potent to mould
the future as well as guide the present.

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Textual Approach
Textualism is also called literal interpretation. The general rule of interpretation of
statute is that the Court while interpreting the statute or any part of it would use literal
rule of interpretation. Literal rule means adherence to the words mentioned in the act.
Under this approach the court focuses on the literal meaning of the constitutional
provisions. According to this rule, the words, pharases and sentences of a statute are
ordinarily to be understood in their in their literal and grammatical meaning.

In A.K.Gopalan:

the Supreme Court gave a narrow and literal interpretation to Article 21 of the
Constitution and refused to infuse the concept of procedure established by law with the
principles of natural justice. Another area where the Supreme Court had used the
textualist interpretation was in the interpretation of the word law under Article 13(2)
vis-a-vis the Parliaments power to amend the Constitution under Article 368.

The Constitution was indeed silent on whether this word under Article 13(2) includes a
constitutional amendment or not. In 1951, the Supreme Court made a distinction
between ordinary legislative power and the Constituent power of the Parliament. It was
held that Article 368 empowered the Parliament to amend the constitution without any
exception. However this judgement was overruled by 11 judge bench and held that the
power under Article 368 could not abridge or take away the fundamental rights in Part
III of the Constitution.

The courts interpret the statute or constitution in order to clarify and to see in all cases
the intention expressed by the words used. The courts interpret as to ascertain the mind
of the legislature from the natural and grammatical meaning of the words or phrases
used in the statute. The courts as seen above has adopted different approach to interpret
the provisions of the Constitution in order the serve the purpose of the very the
provision. There have been landmark judgements where courts have used different

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doctrines apart from the primary method of literal interpretation to meet the ends of
justice.

6. The doctrine of incidental or ancillary powers

It developed as one of the interpretive techniques used to help determine the scope of
the powers of the different levels of government. This doctrine has not been specifically
developed in India. However, its traces can be found in various judgments.

“The subjects dealt with in the three legislative lists are not always set out with a
scientific definition. It would be practically impossible for example to define each item
in the Provincial List in such a way as to make it exclusive of every other item in that
list. In the case of some of these categories. the general word is amplified and
explained… while the inclusion of others might not be so obvious. I think however that
none of the items in the Lists is to be read in a narrow or restricted sense, and that each
general word should be held to extend to all ancillary or subsidiary matters which can
fairly and reasonably be said to be comprehended in it.”

This case laid down the way for the doctrine of ancillary or incidental powers in the
Indian legal system. It clarifies that a legislature has the power to make law on matters
which are ancillary or incidental to the main matters of legislation and thus, are essential
to fulfil the object of the law.

Constitutional provisions

The following provisions of the Constitution reflect the power to make law on incidental
matters:

Article 4 provides the power to make law on matters supplemental, incidental, and
consequential to the law providing for adding of states under Article 2 and 3.

Article 110 and 199 define money bill for both the Union and the States. It includes
“any matter incidental to any of the matters specified in sub-clauses (a) to (f)” of the
respective articles.

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Article 145 provides the power to the Supreme Court to make “rules as to the costs of
and incidental to any proceedings in the Court and as to the fees to be charged in respect
of proceedings therein”.

Article 169 provides for the abolition or creation of Legislative Councils in States. This
article includes the power to make rules “as may be necessary to give effect to the
provisions of the law and may also contain such supplemental, incidental and
consequential provisions as Parliament may deem necessary”.

Article 239AAB empowers the President to suspend any provision of Article 239AA
and related provisions. It also empowers him to “make such incidental and
consequential provisions as may appear necessary”.

Article 244A provides for the formation of an autonomous State comprising certain
tribal areas in Assam and the creation of local Legislature or Council of Ministers or
both. It empowers the Parliament to make any “such supplemental, incidental and
consequential provisions as may be deemed necessary.”

Article 289 provides for the exemption of property and income of a State from Union
taxation. It empowers the Parliament to exempt trade “incidental” to the functioning of
the Government.

Article 315 provides for the establishment of Public Service Commissions for the Union
and the States. It provides for the law to contain “any such incidental and consequential
provisions as may be necessary or desirable for giving effect to the purposes of the law”.

Article 323A talks about Administrative Tribunals. It provides that any law made under
clause (1) of this article may include “such supplemental, incidental and consequential
provisions (including provisions as to fees) as Parliament may deem necessary for the
effective functioning of, and for the speedy disposal of cases by, and the enforcement
of the orders of, such tribunals”.

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Article 323B talks of Tribunals for other matters. It empowers the appropriate
Legislature to make law on “any matter incidental to any of the matters specified in sub-
clauses (a) to (i)” of this article.

Article 339 provides for the control of the Union over the administration of Scheduled
Areas and the welfare of Scheduled Tribes. It empowers the President to include in his
order “such incidental or ancillary provisions” as he deems necessary.

Article 356 provides for the provisions in case of failure of constitutional machinery in
States. It empowers the President by Proclamation to make “such incidental and
consequential provisions as appear to the President to be necessary or desirable for
giving effect to the objects of the Proclamation.”

Article 371D provides special provisions for the State of Andhra Pradesh or Telangana.
It empowers the President to make an order for the constitution of an Administrative
Tribunal for the above-mentioned states containing “such supplemental, incidental and
consequential provisions” as he may deem necessary.

7. Doctrine of Incidental Encorachment:

In situations where the said legislature has the competency to enact such laws but in
the process of such enactments it encroaches “incidentally” upon the powers of other
legislative units, then the enactment would not be depicted as invalid. This is known
as the doctrine of ancillary or incidental encroachment.

8. Doctrine of implied powers:

It is embodied in the maxim "Quando lex aliquid alicue concedit concediture etaid
sine quo res ipsa esse non potest." If law gives something to a person it is also
deemed to grant all those powers without which it cannot exist. If an authority is
authorised to do a duty and if it is impossible to perform that duty, without doing
something-else or so , it will have to be presumed that the authority has power to
perform that other thing also. Therefore, what is to be presumed under the doctrine

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 of implied powers is ancillary which may be often procedural in nature and which
will have to be done in order to perform what the law expressly authorised.

9. The doctrine of occupied field

It refers to the legislative entries of state list, which are expressly made to and
corresponding entry in either the union or the concurrent list. This doctrine merely
is concerned with the existence of the legislative power. The Article 254 of the
Indian constitution mentions that as soon as the union law receive descent of the
president it is said to be a law made by the parliament and the actual commencement
of a law is not important for the purpose of attracting doctrine of occupied field. And
as per this doctrine of occupied field, if there is a law existing on a concurrent subject
than the state law cannot override it. This doctrine has nothing to do with the conflict
of laws between the state and centre. In fact, it is merely concerned with the
existence of legislative power whereas repugnance is concerned with the exercise of
legislative power that is shown to exist. The doctrine comes within the picture even
before the union law or the state law has commenced because of the provision in the
constitution. When the Central Legislature makes a law on a particular subject and
thereby occupies the field, the state legislature has no power to enact any law on that
field. In the event of their doing so the State Legislature would, to that extent,
become Unconstitutional.

10. doctrine of repugnancy

Article 254 of the Indian Constitution establishes the doctrine of repugnancy in India.
Before getting to this doctrine, it is quintessential to understand the legislative scheme
and the Centre-State relations set out by the Constitution. `

Article 245 empowers the Parliament to make laws for the whole or any part of India
and the State legislature to make laws for the whole or any part of the State. It also states
that a law made by the Parliament shall not be deemed invalid due to its extraterritorial
application. Further, Article 246 provides the subject-matter of laws that can be made
by the Parliament and Legislature of the States.

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The Parliament has exclusive powers to make laws for all matters given in the Union
List or List I of the Schedule VII of the Indian Constitution.

The Legislature of the State has powers to make laws for such State for all matters given
in the State List or List II of Schedule VII.

Both the Parliament and the State Legislature have powers to make laws for all matters
listed in the Concurrent List or List III of the Seventh Schedule.

The Parliament is empowered to make laws relating to any matter for any part of the
territory of India, not included in a State, notwithstanding if it is enumerated in the State
List.

Repugnancy means a contradiction between two laws which when applied to the same
set of facts produce different results. It is used to describe inconsistency and
incompatibility between the Central laws and State laws when applied in the concurrent
field. The situation of repugnancy arises when two laws are so inconsistent with each
other that the application of any one of them would imply the violation of another.

One of the landmark judgments concerning this doctrine is M. Karunanidhi v. Union of

India. In this case, a constitutional bench of the Apex court considered the question of
repugnancy between a law made by the Parliament and a law made by the State
legislature. It was observed that the following conditions should be satisfied for the
application of the doctrine of repugnancy:

A direct inconsistency between the Central Act and the State Act.

The inconsistency must be irreconcilable.

The inconsistency between the provisions of the two Acts should be of such nature as
to bring the two Acts into direct collision with each other and a situation should be
reached where it is impossible to obey the one without disobeying the other.

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The doctrine of repugnancy, in accordance to Article 254, states that if any part of State
law is repugnant or conflicting to any part of a Central law which the Parliament is
competent to enact, or to any part of a law of the matter of List III, then the Central law
made by the Parliament shall prevail and the law made by the State legislature shall
become void, to the extent of its repugnancy. While considering this doctrine, whether
the central law is passed before or after the State law is immaterial. Hence, this is a
principle to ascertain that when a state law becomes repugnant to the Central law.

Delegated legislation in India

Delegated Legislation In Conformity With Enabling Acts: Legislation by the executive

branch or a statutory authority or local or other body under the authority of the
competent legislature is called “Delegated legislation”. It permits the bodies beneath
parliament to pass their own legislation. It is legislation made by a person or body other
than Parliament. Parliament, through an Act of Parliament, can permit another person
or body to make legislation. An Act of Parliament creates the framework of a particular
law and tends only to contain an outline of the purpose of the Act. By Parliament giving
authority for legislation to be delegated it enables other persons or bodies to provide
more detail to an Act of Parliament. Parliament thereby, through primary legislation
(i.e. an Act of Parliament), permit others to make law and rules through delegated
legislation. The legislation created by delegated legislation must be made in accordance
with the purposes laid down in the Act. The function of delegated legislation is it allows
the Government to amend a law without having to wait for a new Act of Parliament to
be passed. Further, delegated legislation can be used to make technical changes to the
law, such as altering sanctions under a given statute. Also, by way of an example, a
Local Authority have power given to them under certain statutes to allow them to make
delegated legislation and to make law which suits their area. Delegated legislation
provides a very important role in the making of law as there is more delegated
legislation enacted each year than there are Acts of Parliament. In addition, delegated

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legislation has the same legal standing as the Act of Parliament from which it was
created.

Importance:
There are several reasons why “delegated legislation” is important.

Firstly, it avoids overloading the limited Parliamentary timetable as delegated

legislation can be amended and/or made without having to pass an Act through
Parliament, which can be time consuming. Changes can therefore be made to the law
without the need to have a new Act of Parliament and it further avoids Parliament
having to spend a lot of their time on technical matters, such as the clarification of a
specific part of the legislation.

Secondly, delegated legislation allows law to be made by those who have the relevant
expert knowledge. By way of illustration, a local authority can make law in accordance
with what their locality needs as opposed to having one law across the board which may
not suit their particular area. A particular Local Authority can make a law to suit local
needs and that Local Authority will have the knowledge of what is best for the locality
rather than Parliament.

Thirdly, delegated legislation can deal with an “emergency situation”as it arises without
having to wait for an Act to be passed through Parliament to resolve the particular
situation.

Finally, delegated legislation can be used to cover a situation that Parliament had not
anticipated at the time it enacted the piece of legislation, which makes it flexible and
very useful to law-making. Delegated legislation is therefore able to meet the changing
needs of society and also situations which Parliament had not anticipated when they
enacted the Act of Parliament.

Grounds On Which Delegated Legislation Can Be Challenged:

A. Enabling or Parent Act is unconstitutional : In India, there is supremacy of the
Constitution and therefore an act passed by the Legislature is required to be in
conformity with the constitutional requirement and if it is found to be in violation of the
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constitutional provisions, the court declares it unconstitutional and void. If enabling or
parent act (i.e the act providing for the delegation) is void and subordinate or delegated
legislation made under the act will also be declared to be unconstitutional and therefore
void. The limits of the Constitution may be express and implied.

Express Limit: Articles 13, 245 and 246 provide the express limits of the constitution.
Article 13(1) provides that all laws in force in the territory of India immediately before
the commencement of the constitution in so far as they are inconsistent with the
provisions of Part III (fundamental rights) shall, to the extent of the contravention, be
void. According to article 13(2), the state shall not make any law which takes away
orabridges the rights conferred by part III (i.e the Fundamental Rights) and any law
made in contravention of this clause shall, to the extent of the contravention, be void.
Article 13(3) makes it clear that for this purpose, unless the context otherwise requires,
law includes any ordinance, order, by – law, rule, regulation, notification, custom or
usage having in the territory of India, the force of law. The legislature, thus, cannot
violate the provisions of part III of the constitution granting the fundamental rights. If
the parent or enabling Act is violative of the Fundamental Rights granted by part III of
the constitution, it will be declared by the court as unconstitutional and void, and the
subordinate or delegated legislation made under the act will also be held to be
unconstitutional and void.

Article 245 makes it clear that the legislative powers of the parliament and that of the
state legislatures are subject to the provisions of the constitution. Parliament may make
laws for the whole or any part of the territory of India and the legislatures of a state
make laws for the whole or any part of the state. No law made by the parliament shall
be deemed to be invalid on the ground that it would have extra territorial operation. The
state legislature can make law only for the State concerned and, therefore, the law made
by the state legislature having operation outside the state would be invalid.

In short, no law made by Parliament shall be deemed to be invalid on the ground that it
would have extra territorial operation. However, the law made by the state legislature
may be challenged on the ground of extra territorial operation. If the parent act is
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declared to be unconstitutional, then the delegated legislation made under such act
would also be declared to be unconstitutional and thus, void. Article 246 makes
provisions in respect of the distribution of powers between the powers between the
Parliament and the State legislatures. From article 246 and the seventh schedule, it
becomes clear that the subjects have been divided into three categories – Union list,
State list and Concurrent list. Parliament has exclusive power to make laws with respect
to any of the matters or subjects enumerated in the Union list and of the legislature of
any state has power to make laws for such state or any part thereof with respect to any
of the matters or subjects enumerated in the State list. Parliament and State Legislatures
both have power to make laws with respect to any of the matters or subjects enumerated
in the Concurrent List, but In the case of conflict between the law made by Parliament
and a law made by the State Legislature with respect to such matter or subject, the law
made by Parliament shall prevail and the laws made by the State Legislature, to the
extent of repugnancy. be void, unless the law made by the State Legislature has received
the assent of the President.

Implied limit: If the Enabling or Parent Act violates the implied limit of the
Constitution, it will be ultra vires the Constitution and therefore It will be void and the
delegated legislation made under the Act will also be unconstitutional and void. The
implied limit of the Constitution Is that essential legislative function entrusted to the
legislature by the Constitution cannot be delegated by it. The essential legislative
function consists of the determination of the legislative policy and its formulation as a
rule of conduct. The legislature delegating its legislative power must lay down the
legislative policy and guidelines regarding the exercise of tin delegated power by
delegate. The delegation of essential legislative function is taken as abdication of
essential legislative function by the Legislature and this is not permitted by the
Constitution

B. Delegated legislation is ultra vires the Enabling Act: The validity of the subordinate
or delegated legislation can be challenged on the ground that it is ultra vires the Enabling
or Parent Act. If the subordinate or delegated legislation made by the delegate is in
excess of the power conferred by the Enabling or Parent Act or is in conflict with the
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provisions of the Enabling or Parent Act or is made w ithout following the procedure
required by the Enabling or Parent Act to be followed by the delegate, the delegated or
subordinate legislation will be invalid on the ground that it Is ultra vires the Enabling
or Parent Act. The validity of the exercise of power is tested on the basis of the Prussians
as it stands currently and not on the basis of that it was before.

C. When it is made in excess of the power conferred by the Enabling Act: The
subordinate or delegated legislation is held to be ultra vires the Enabling or Parent Act
when it is found to be in excess of the power conferred by the Enabling or Parent Act.
If the delegated legislation is beyond the power conferred on the delegated by the
Enabling Act, it would be Invalid even if it has been laid before the Legislature. Where
an administrative authority Is empowered by the Enabling Act to make by-laws to
regulate market and the authority makes by-law which prohibits running of cattle
market the by-law will be ultra vires the Enabling Act. In S.T.O. v. Abraham the Act
empowered the Government to carry out the purposes of the Act the Government made
rule so as to fix the last date for filing the declaration forms by dealers for getting the
benefit of concessional rates on inter-State sales. This rule was held to be ultra vires the
Enabling Act on the ground that the Act empowered the Government for making rules
for prescribing the particulars to be mentioned in the forms and it was not given power
to prescribe a time-limit for filling the form.

D. When delegated legislation is in conflict with the Enabling or Parent Act: When the
delegated legislation is found to be directly or indirectly in conflict with the provisions
of the Enabling Act or Parent Act, it is held to be ultra vires the Enabling or Parent Act.
In Delhi Transport Undertaking v. B.R.I. Hajelay, a rule was declared Invalid on the
ground that it was in conflict with the provisions of the Enabling or Parent Act.
According to Section 92 of the Delhi Corporation Act. 1957, all persons drawing salary
less than 350 rupees per month shall be appointed only by general Manager of the Delhi
Transport Undertaking. According to Section 95 of the Act, no person can be dismissed
by any authority subordinate to the authority who has appointed him. The rules made
under the Act empowered the General Manager to delegate all his powers to the
Assistant General Manager. The rule was held to be In conflict with the aforesaid
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provision of the Parent Act. The effect of the rule was that a person appointed by the
General Manager could be dismissed by the Assistant General Manager. i.e. a person
could be dismissed by an authority subordinate to the authority who had appointed him
while Section 95 of the Act provided that no person can be dismissed by an authority
subordinate to the appointing authority. Thus, the rule was in conflict with Section 95
of the Act. Consequently the rule was held to be invalid.

The Mimansa Rule of Interpretation

The Mimansa Rules of Interpretation were our traditional principles of interpretation

laid down by Jaimini, whose Sutras were explained by Shabar, Kumarila Bhatta,
Prabhakar, etc. These Mimansa Principles were regularly used by our great jurists like
Vijnaneshwara (author of Mitakshara), Jimutvahana (author of Dayabhaga), Nanda
Pandit, etc. whenever they found any conflict between the various Smritis or any
ambiguity, incongruity, or casus omissus therein.

There is no reason why we cannot use these principles on appropriate occasions.

However, it is a matter of deep regret that these principles have rarely been used in our
law Courts. It is nowhere mentioned in our Constitution or any other law that only
Maxwell’s Principles of Interpretation can be used by the Court. We can use any system
of interpretation which helps us resolve a difficulty. In certain situations Maxwell’s
principles would be more appropriate, while in other situations the Mimansa principles
may be more suitable.

The Mimansa principles were created for religious purpose, but as they were so rational
and logical that they subsequently began to be used in law, grammar, logic, philosophy,
etc. i.e. they became of universal application. The books on Mimansa are all in Sanskrit,
but there is a good book in English by Prof. Kishori Lal Sarkar called ‘The Mimansa
Rules of Interpretation’ published in the Tagore Law Lecture Series and K.L. Sarkar’s
‘Mimansa Rules of Interpretation’ Tagore law Lectures – 1905, Edited by Justice
Markandey Katju (Former Judge, Supreme Court of India).

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In the Mimansa system there are three ways of dealing with conflicts which have been
fully discussed by Shabar Swami in his commentary on Sutra 14, Chapter III, Book III
of Jaimini.

(1) Samanjasya Principle (Principal of Harmonious Construction)

(2) Vikalpa Principle (Principal of preferring one out of two or more)

(3) Badha Principle (Principal of barring a thing owing to inconsistency)

The Samanjasya Principle has been laid down by Jaimini in Chapter II, Sutra 9 which
states “The inconsistencies asserted are not actually found. The conflicts consist in
difference of application. The real intention is not affected by application. Therefore,
there is consistency.”

Jimutvahana (author of Dayabhaga) one of our greatest jurist, found that there were two
apparently conflicting texts of Manu and Yajnavalkya. The first stated “a son born after
a division shall alone take the paternal wealth”. The second text stated “sons, with
whom the father has made a partition, should give a share to the son born after the
distribution”. Jimutvahana, utilizing the Samanjasya principle of Mimansa, reconciled
these two texts by holding that the former applies to the case of property which is the
self-acquired property of the father, and the latter applies to the property descended
from the grand-father.

Vikalpa Principle of Mimansa applies in a situation of conflict where it is impossible to

reconcile the two conflicting texts despite all efforts. Vikalpa principal says that
whichever law is more in consonance with reason and justice should be preferred.
However, conflict should not be readily assumed and every effort should be made to
reconcile conflicting texts. It is only when all efforts of reconciliation fail that the
Vikalpa principle is to be resorted to.

Badha Principle of Mimansa applies in a conflict where there are two conflicting
irreconcilable texts but one overrides the other because of its greater force (similar to
the doctrine of ultra vires). The principle of Badha is discussed by Jaimini in the tenth
chapter of his work. Badha primarily means barring a thing owing to inconsistency.

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Jaimini uses the principle of Badha mainly with reference to cases where Angas or sub-
ceremonies are to be introduced from the Prakriti Yagya (i.e. a yagya whose rules for
performance are given in detail in the Brahmanas) into a Vikriti (i.e. a yagya whose
rules of performance are not mentioned anywhere, or are incompletely mentioned). In
such a case, though the Angas or the sub-ceremonies are to be borrowed from the
Prakriti Yagya, those of the sub ceremonies which prove themselves to be inconsistent
with or out of place in the Vikriti Yagya, are to be omitted.

Mimansa Case Study: Gujarat Urja Vikash Nigam Limited Vs. Essar Power
Limited decide on 13.03.2008

Gujrat Urja Vikash Nigam Limited, the Appellant preferred an appeal by special leave
against the judgment of Gujrat High Court, wherein the Gujrat High Court appointed
an arbitrator under Section 11(5) and (6) of the Arbitration & Conciliation Act,
1996 (“1996 Act”).

The main question before the Supreme Court was whether the application under Section
11 of the 1996 Act is maintainable in view of the statutory specific provisions contained
in the Electricity Act, 2003 (“2003 Act”) providing for adjudication of disputes between
the licensee and the generating companies.

While adjudicating the issue the Apex court noted that there is an apparent inconsistency
between Section 175 and Section 174 of the 2003 Act. While Section 174 says that the
said Act will prevail over other laws, Section 175 says that the said Act is in addition
and not in derogation of any other law (which would include Section 11 of the
Arbitration and Conciliation Act, 1996.)

The Apex Court resolved the conflict by applying the Gunapradhan Axiom of Badha
Principle of Mimansa Rules. Gunapradhan Axiom consists two words i.e. “Guna”
which means subordinate or accessory while “Pradhan” means Principle.
The Gunapradhan Axiom states:

“If a word or sentence purporting to express a subordinate idea clashes with the
principal idea, the former must be adjusted to the latter or must be disregarded
altogether.”

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According to Jaimini, acts are of two kind, principal and subordinate In Sutra 3 : 3 : 9
Jaimini states:

When the Primary and the Accessory belong to two different Vedas, the Vedic
characteristic of the Accessory is determined by the Primary, as the Accessory is
subservient to the purpose of the primary.

Applying the Gunapradhan Axiom, the Apex Court interpreted that Section 174 of the
2003 Act is the pradhan whereas Section 175 of 2003 Act is guna and that Section 175
of the 2003 Act cannot be read in isolation and is to be read with Section 174 of the
2003 Act and Section 175 (the guna or subordinate) is to be adjusted in accordance with
Section 174 (the pradhan or principal) and held that Section 86(1)(f) of the 2003 Act
will prevail over Section 11 of the 1996 Act and whenever there is a dispute between a
licensee and the generating companies only the State Commission or Central
Commission (as the case may be) or arbitrator(s) nominated by them can resolve such
a dispute.

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