IOS

8. The Rule of Common Law

Introduction:
Common Law - The term in itself may seem self-explanatory though most people do
not know exactly what it means: It refers to the unwritten, judge made law as opposed
to written law (statutory law). Common law was developed by judges through the
decisions of the courts. A common law system was first developed in England from
where, with the aggressive expansion of the English empire this system of law too
traversed to different parts of the world, of which India became one of its destinations.
COMMON LAW: DEFINITION
The Common Law is a body of law derived from judicial decisions known as case laws,
rather than from statutes. The Common Law derived its authority from the universal
consent and practice of the people from time immemorial. This system of jurisprudence
initially originated in England. Common Law is unintelligible until expressed in a
judgment. It includes those rules of law which derive their authority from the statement
of principles found in the decisions of courts. This system of law includes tradition,
custom and usage, fundamental principles and modes of reasoning. It is the embodiment
of broad and comprehensive unwritten principles, which were derived out of natural
reasoning and innate sense of justice.

A Common Law system requires several stages of research and analysis to determine
the appropriate law in a given situation. The facts are ascertained properly, relevant
cases and statutes are to be identified, and the principle, ideas by various courts need to
be understood and applied in order to determine how they would help in understanding
the point of law in question within that case. The common law is quite different from
codified law as it follows the judgment while the codified law precedes it. Therefore it
can be said that it is a system of rules and declarations of principles from where the
judicial ideas and legal definitions are derived. This law is ever changing as its
principles are influenced by the changing conditions and requirements of the society.

Features of a common law system include:

• There is not always a written constitution or codified laws;
• Judicial decisions are binding – decisions of the highest court can generally only
be overturned by that same court or through legislation;
• Extensive freedom of contract - few provisions are implied into the contract by
law (although provisions seeking to protect private consumers may be implied);
• Generally, everything is permitted that is not expressly prohibited by law.
COMMON LAW: IN INDIA
The application of common law has been overarching in the Indian context; it has been
enshrined in the Indian legal system over the space of two centuries by the English to
the point that one can’t allocate an individual identity to Indian jurisprudence. Thus, it
can be said that common law has been applicable here though in a different format than
that of England as the needs and demands of the Indian society were different from that
of the English. It is to be found out that much of the law compiled in codes we have
today were primarily derived from the Common Law principles. The basic statutes
governing civil and criminal justice are the Indian Penal Code, 1860, Indian Evidence
Act, 1872, the Code of Criminal Procedure, 1973 and the Code of Civil Procedure, 1908.
It has already been discussed how these laws came into being, one thing can be said
about these legislations is that they have stood the test of time with minimal
amendments. Codification of laws made the law uniform throughout the country and
fostered a kind of legal unity in fundamental laws. The Codes apply uniformly
throughout the nation.

Another contribution to Indian legal system by Common Law has been the adversarial
system of trial. In this system the accused is presumed to be innocent and the burden is
on the prosecution to prove beyond reasonable doubt that he is guilty. The accused also
enjoys the right to silence and cannot be compelled to reply. The truth is supposed to
emerge from the respective versions of the facts presented by the prosecution and the
defence before a neutral judge. Both the parties have a right to question their witnesses
and the opposing side has a right to test their testimony by questioning them. . The judge
acts like an umpire to see whether the prosecution has been able to prove the case
beyond reasonable doubt and gives the benefit of doubt to the accused, his ultimate duty
being to pronounce the judgment regarding the matter.

The system of Precedents derived from the Common Law too has wide application
within the Indian legal system, a precedent in Common Law parlance means a
previously decided case which establishes a rule or principle that may be utilized by the
court or a judicial body in deciding other cases that are similar in facts or issue. Initially
the English judges and barristers presiding and practicing in the Indian courts followed
the decisions of the courts in England, thus slowly the concept of precedents came to be
ardently followed within the Indian courts. This law has been carried forward in the
present day Legal system as in regard to the judgments of the Supreme Court of India
the Indian Constitution provides that “The law declared by the Supreme Court shall be
binding on all courts within the territory of India.”[3]Hence it can be said unequivocally
that Common Law has wide application within the Indian Legal fold as many of the
features of this system have been adopted and further developed from that of The
English Common Law System, even though its application hasn’t been discussed in
entirety and only the major principles derived from it have been discussed.

Thus it can be said that common law traces back its origins to England and is primarily
a method of administering justice, which has incorporated different aspects of the legal
pedagogy and practice with the help of deliberations of laymen and the learned over the
course of time. In the Indian context the common law initially was applied for the
convenience of the English, so they could govern their territories properly but, as they
became the overlords of India the common law became common for Indians. There
developed a symbiotic relationship between the Indian customary law and the common
law which gave birth to the modern day Indian legal system.

Hence, we can say India has an organic law as a consequence of the common law
system.

Conclusion:

While comparing legislation with common law, it can be concluded that statutes
generally have the power to change the established common law, but the common law
cannot overrule or change statutes. A statute can only be amended or overruled by a
later and a separate statute. This relationship reflects the legal & political doctrine of –
parliamentary sovereignty- the recognition & acceptance that Parliament is the supreme
law making body of the land though, such an authority may not be absolute and it may
be limited by some other exercises. Nevertheless, save for these possible limits in
extreme circumstances the judges must normally apply statutes, even if they are contrary
to the established common law.

7. Explain the principles relating to commencement and operation of a statue.

Introduction:
Statutes are either prospective or both prospective and retrospective from the point of
its applicability i.e. the period of legal effect of statutes. All statutes in general have
only prospective effect. It means applicability to future transactions. But certain
statutes have to be sometimes both prospective and retrospective. “Retrospective”
means the statute would apply and affect past transaction also.
Commencement:
Section 3(13) of the General Clauses Act,1897 provides that commencement used
with reference to an Act or Regulation, shall mean the day on which the Act or
Regulation comes into force.
The Act does not insist on promulgation or publication of statue for it to come into
force. Therefore the stature would come into force immediately after the zero hour on
that particular date of commencement is mentioned, a statue comes into force at the
first moment of the day the asset of the President of India is received or in the oether
words immediately on the expiration of the day preceding its commencement.
The above is as per section 5 of the General Clauses Act, 1897 which provides:
1. Where any Central Act is not expressed to come into operation on a particular
day, then it shall come into operation on the day on which it receives the assent,
(a) in the case of a Central Act made before the commencement of the
Constitution † , of the Governor-General, and
(b) in the case of an Act of Parliament, of the President.]

2. Unless the contrary is expressed, a 9 [Central Act] or Regulation shall be

construed as coming into operation immediately on the expiration of the day
preceding its commencement.
If a day is not set for the coming into operation of a law, that day will be the day when
the law was first published in the Gazette as a law.

If any act provides that it will come into operation on a date fixed by the President or a
Premier by proclamation in the Gazette, different dates may be fixed in respect of
different provisions of that act.

Exercise of conferred powers between passing and commencement of a law

Where a law confers a power to do anything required to bring the law into operation
(for example, making appointments, actions of regulators, prescribing forms or
making regulations) that power may be exercised at any time after the passing of the
law so far as may be necessary for the purpose of bringing the law into operation.
However, those acts (for instance the making of regulations) only come into operation
when the law comes into operation.
Notification in Gazette of official acts under authority of law

When an act is by law to be done by the President, a Premier, a Minister, or any public
officer, the notification of that act may be by notice in the Gazette unless a specified
method is prescribed.

Certain enactments must be published in the Gazette but there are also other ways
stated for the promulgation and commencement of laws and publication of notices
when publication in the Gazette is impractical. It has become common in recent
legislation to permit publication on an official website.

Retrospective Operation of Statue

Retrospective statute contemplates the past and gives effect to previous transactions.
There must be words in a statute sufficient to show that the intention of the legislature
is to give the rule or the law the Retrospective effect.

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.”

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’

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”

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 defense 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”.

Amending statute
An amendment of substantive law is not retrospective unless laid down or necessarily
implied. A vested right cannot be taken away by the amending Act except by express
language or by necessary intendment.

Declaratory statute
A declaratory Act is defined as an Act to remove doubts existing as to the common
law, or the meaning or the effect of any statute. The usual reason for the passing a
declaratory act is to set aside what Parliament has considered a judicial error, whether
in the statement of the common law or the interpretation of the statute. The
presumption against retrospective operation is not applicable to the declaratory
statutes. A declaratory act is an act to remove doubts existing to common law and thus
declaratory acts are usually held a retrospective.

Case Law:

In Garikapati Veeraya v. N. Subbiah Choudhry, AIR 1957 SC 540 the SC observed as

thus(Para 25 of AIR) "The golden rule of construction is that, in the absence of
anything in the enactment to show that it is to have retrospective operation, it cannot
be so construed as to have the effect of altering the law applicable to a claim in
litigation at the time when the Act was passed."

In Smt. Dayawati v. Inderjit (AIR 1966 SC 1423), in Para 10, it is held thus :"Now as
a general proposition, it, may be admitted that ordinarily a Court of appeal cannot take
into account a new law, brought into existence after the judgment appealed from has
been rendered, because the rights of the litigants in an appeal are determined under the
law in force at the date of the suit. Even before the days of Coke whose maxim - a new
law ought to be prospective, not retrospective in its operation - is off-quoted, Courts
have looked with disfavour upon laws which take away vested rights or affect pending
cases. Matters of procedure are, however, different and the law affecting procedure is
always retrospective. But it does not mean that there is an absolute rule of inviolability
of substantive rights. If the new law speaks in language, which, expressly or by clear
intendment, takes in even pending matters, the Court of trial as well as the Court of
appeal must have regard to an intention so expressed, and the Court of appeal may
give effect to such a law even after the judgment of the Court of first instance."

Conclusion:

Thus, commencement used with reference to an Act or Regulation, shall mean the day
on which the Act or Regulation comes into force. If a day is not set for the coming into
operation of a law, that day will be the day when the law was first published in the
Gazette as a law. 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.
Here we 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.

Q3. Explain the role of Internal and external aids of interpretation of statues
Interpretation is the process which is employed by the judiciary to ascertain or to determine the
meaning of the statutes or legal provision. It is basically a process by which court seeks to ascertain
the true meaning of the expression or word or phrase which is in question in any statute before the
court and determine the true intention of the legislature.
According to Salmond, Interpretation and construction is the process by which the court seek to
ascertain the meaning of the legislature through the medium of authoritative forms in which it is
expressed.
The process by which the court assign the meaning to the ambiguous provision which is beyond the
letter of law for the purpose to resolve the inconsistency is called as construction of statutes.
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.
An Aid is a device that helps or assists. While performing the function of interpreting provision of a
statute, the court can take help from within the statute or even outside the statute.
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. The
internal aids include title, preamble, headings, marginal notes, illustrations, punctuations, proviso,
definition or interpretation clauses, explanations, schedules and punctuation. They are much more
valuable than external aid to interpretation.
Short title
The short title of the Act is only its name and is given solely for the purpose of facility of reference. it
has no role to play while interpreting a provision of the Act.

Long title

A statute is headed by a long title whose purpose is to give a general description about the object of
the act. There are numerous occasions where court has sought help from the long title to interpret
certain provisions of the statute but only to the extent of removing confusions and ambiguities. If the
words in a statute are unambiguous, no help is derived from the long title.
In the case of Amarendra Kumar Mohapatra v. State of Orissa AIR 2014 SC 1716- the Court has
held that the title of a statute determines the general scope of the legislation, but the true nature of any
such enactment has always to be determined not on the basis of the label given to it but on the basis of
its substance.

Preamble

The Preamble to the Act contains the aims and objectives sought to be achieved, and is therefore, part
of the Act. In case of any ambiguity or uncertainty, the preamble can be used by the courts to interpret
any provision of that statute.

Marginal Notes

Marginal notes are those notes which are inserted at the side of the sections in the Act and express the
effect of the sections. These are also known as side notes.

Headings

Headings are prefixed to sections or a group or set of sections. Headings are not passed by the
Legislature but they are subsequently inserted after the Bill has become law. Headings are of two
kinds- one which are prefixed to a section and the other which are prefixed to a group or set of sections.
These headings have been treated by courts as preambles to those sections or set of sections.

Illustrations

Illustrations are sometimes appended to a section of a statute with a view to illustrate the provision of
law explained therein.

Exceptions and Saving Clauses

Exceptions are generally added to an enactment with the purpose of exempting something which would
otherwise fall within the ambit of the main provision.

Schedules

Schedules attached to an Act generally deals with as to how claims or rights under the Act are to be
asserted or as to how powers conferred under the Act are to be exercised.

Explanation

The explanations are inserted with the purpose of explaining the meaning of a particular provision
and to remove doubts which might creep up if the explanation had not been inserted.
Proviso
The proviso to a section has the natural presumption that enacting part of the section would have
included the subject matter of the proviso.
Definition or Interpretation clause
It define certain words used elsewhere in the body of statute
Punctuation
Punctuation are put in the form of colon, semi colon, comma, full stop, dash, hyphen, brackets etc
External aids 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.
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.

Text Books
The court while construing an enactment, may refer to the standard textbooks to clear the meaning.
Although, the courts are not bound to accept such view.
The court time and again referred to mulla, kautiliya, manu, arthshastra.

Statement of objects and reasons

The statement of object and reasons are attached to the bill which describe the objects, purpose and
the reason for the bill. It also gives understanding of the background, the antecedent state of affairs
and the object the law seeks to achieve.

Legislative Debates/Speech

It is referred as to debates or speeches which are made in the course of passing a bill in the
parliament by the parliamentarians to put forth their view.

Constituent Debates/Speech
It shall compromises all such debate which had taken place in the parliament at the time of
formation of Constitution of India.

Foreign laws and decisions

Judges may refer to foreign laws and decision if the jurisprudence of both the countries is same,
similarity in political system and ideology, when there is no domestic law on point and if the Indian
court believe that decision passed by the foreign court is not arbitrary.

Committee Reports
Before the framing of the Bill, usually the matter is referred to a committee to consider it in detail
and give its report thereon.

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.

Q4. What is purposive construction

Purposive construction is an approach to statutory and constitutional interpretation under which

common law courts interpret an enactment in light of the purpose for which it was enacted.

The historical source of purposive interpretation is the mischief rule established in Heydon's Case.
Purposive interpretation was introduced as a form of replacement for the mischief rule, the plain
meaning rule and the golden rule to determine cases.

Israeli jurist Aharon Barak views purposive interpretation as a legal construction that combines
subjective and objective elements. Barak states that the subjective elements include the intention of
the author of the text, whereas the objective elements include the intent of the reasonable author and
the legal system’s fundamental values.

Among the various rules of interpretation, the one which gives the highest priority to the object of
the legislation and advances such interpretation of statute, which helps in the fulfilment of the object
of such statute, is the rule of purposive interpretation of statute.

In the celebrated case of Workmen of Dimakuchi Tea Estate v. Management of Dimakuchi Tea
Estate, the Hon’ble Supreme Court of India held that the words of a statute, whenever there is a
doubt about their meaning, have to be understood in the sense in which they best harmonise with the
subject of the enactment and the object which the legislature has in its view. It was stated that

“the meaning of the statute is not found in a strict grammatical or etymological propriety of
language, nor even in its popular use, as in the subject or in the occasion on which they are used, and
the object to be attained.”

It has been recognised by the Supreme Court of India on multiple occasions that whenever two
interpretations are feasible the court will prefer such interpretation which advances the remedy and
suppresses the mischief as it was envisioned by the legislature.

It has been provided that the Court should adopt an object-oriented approach keeping in mind the
principle that legislative futility is to be ruled out so long as interpretative possibility permits. Thus,
it can be inferred that to the extent to which there is interpretive flexibility, the Court must seek to
give such an interpretation to the statute which helps in the fulfilment of its ultimate objective and
thereby prevents the same from becoming futile.

This rule has been adequately explained in the case of Bengal Immunity Co v. the State of Bihar
wherein it was stated that it was a sound rule of construction of statute which was firmly established
in England as before as in 1584 when Heydon’s case was decided.

It was explained that for the sure and true interpretation of all statutes in general be they penal or
beneficial, restrictive or enlarging of the common law, four things are to be discerned and
considered,

• firstly, what was the common law before the making of the Act,
• secondly, what was the mischief and defect for which the common law did not provide,
 • thirdly, what remedy the Parliament hath resolved and appointed to cure the disease of the
commonwealth, and
• lastly, the true reason of the remedy and then the office of all the Judges is always to make
such construction as shall suppress the mischief, and advance the remedy, and suppress subtle
inventions and evasions for the continuance of the mischief, and pro privato commodo (for
private benefit), and to add force and life to the cure and remedy, according to the true intent
of the makers of the Act, pro bono publico (for the public good).

The Literal Rule Vs. Purposive Approach

• The literal approach takes each word literally. The purposive approach is very broad and does not
look at the precise meaning of each word.

• Golden Rule vs. Purposive Approach - Golden rules look to the actual wording of the statutes. The
mischief and purposive approach go beyond that.

1. The Literal Rule – Every day meanings of words

2. The Golden Rule – Words interpreted to avoid absurdity

3. The Mischief Rule – Words interpreted to fill in the gaps in the original Act

4. The Purposive Approach – Very wide interpretation to give meaning to purpose of the Act

Limitations and Precautions

There are various judicial pronouncements and decisions where the Courts have recognised certain
limitations of this rule, various precautions and restraints, that must be kept in mind by the Courts,
such that they perform the same function as is essentially desired of them in the Constitution.

1. what is Statute is there any difference between the statue and statute law.

"A Statute is a formal written enactment of Legislative authority that governs a country, state,
city or county. Typically, Statutes command or prohibit something, or declare Policy, the word
is often used to distinguish law made by legislative bodies from the judicial decisions of the
common law and the regulations used by government agencies". The Indian Constitution
does not use the term "Statute" but it uses the term "law".
A statute, is a law that has been enacted by a legislature, which is the body that has been
granted the power by a constitution to enact legislation, or laws. When a statute is passed, it
becomes law and therefore part of statutory law. The federal legislature of the United States
is the United States Congress. Each state has its own legislature, which enacts laws for that
state. Once enacted by the legislature, statutes are signed into law by the chief member of
the executive branch - the president for federal statutes and the governor for state statutes.
Statutes are drawn together and organized by subject in what are called codes.
According to Article 13(3)(a) includes any Ordinance, order, byelaw, rule, regulation,
notification, custom or usage having in the territory of India the force of law. [Article 13(3)(a)
of the Constitution of India. A Statute is the will of the Legislature. It may have the
following Particulars -

Short title, Long Title, Preamble, Marginal notes, Headings of a group of sections or individual
sections, Definition of interpretation clauses, Provisions, Illustrations, Exceptions and saving
clauses, Explanations, Schedules, Punctuation.

A statute begins as a bill proposed or sponsored by a legislator. If the bill survives the
legislative committee process and is approved by both houses of the legislature, the bill
becomes law when it is signed by the executive officer (the president on the federal level or
the governor on the state level). When a bill becomes law, the various provisions in the bill
are called statutes. The term “statute” the elevation of a bill from legislative proposal to law.
State and federal statutes are compiled in statutory codes that group the statutes by subject.
Classification with reference to duration.
1) Temporary Statute.
2) Permanent Statute.
Classification with references to method.
1) Mandatory, imperative or obligatory statute.
2) Directory or Permissive Statute.

Classification with reference to object.

1) Codifying Statute.
2) Consolidating Statute.
3) Declaratory Statute.
A statute is a law passed by a legislature; and statutory law is the body of law resulting from
statutes. A statute or the statutory law may also be referred to as legislation. One of the
benefits of statutory law is that whether it’s federal or state law, it’s a written law that you can
locate and read at the law library or online.
Thus, Statutes are not static and irreversible. A statute may be changed or repealed by the
lawmaking body that enacted it, or it may be overturned by a court. A statute may lapse, or
terminate, under the terms of the statute itself or under legislative rules that automatically
terminate statutes unless they are reapproved before a certain amount of time has passed.
2.What is Grammatical and Logical Interpretation of Statutes.

Grammatical Rule of statutes.

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.

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.

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.

Thus, A literal or grammatical interpretation has an important place in the interpretation of

Statutes. It is universal fact that the main purpose of interpretation is to know the intention of
the legislature and give it an effect, it is only possible when the language of the legislature is
understood accordingly. The only source to find the intention of the legislature is the use or
expressed by it. When any statute is interpreted according to words then it is called literal
(grammatical) interpretation of statutes.

Logical interpretation has an important place in the interpretation of Statutes. When the
language of Statute is not clear or the object and meaning of Statute are not derived, then
the rules of logical interpretation are used to know the intention of the legislature. This is
proved by the Allahabad High court in Ramashreya v/s District Panchayat Raj Officer,
Gorakhpur (A.I.R. 1998 Allahabad 87)
In fact, it is also the object of logical interpretation that the Statute should be so interpreted
so that the intention of the legislature is known. There are certain rules of logical interpretation
that can be followed to know the intention of the legislature. These rules are as follows—
Read the Statute as a whole
The First rule of logical interpretation is Read the Statute as a whole. It is required that the
Statute or any of its parts should be read as a whole to know the intention of the legislature.
It is not proper that one part of Statute is read and the other is ignored to find out the meaning.
The Second rule of logical Interpretation is Provisions of Statute should not be separated.
The provisions of Statute should not be separated to know the intention of the legislature.
Court has required not the concentrate wholly over the disputed provision but should consider
all provisions of Statute because the person making the format of Law considers all the
provisions of the Statute when he is making a format of every provision.
The Third rule of logical interpretation is remove the inconsistency of words. Many times,
Inconsistency arises in words. Hence, all provisions of the Statue should be read as a whole
to such inconsistency. Where there is an inconsistency between more than one provision,
the court should try to remove the confrontation between them, it is required that one such
provision is to be accepted and others are to be refused and while doing so Court should
consider the intention of the legislature and reasonable construction. The intention of the
legislature is never to create a situation of confrontation, inconsistency, and contradiction
between two provisions of a statute.
The Fourth rule of logical interpretations is—Consequences are not considered. It is the
golden rule of interpretation that when the language of the statute is clear and unambiguous
then, it should be given the meaning accordingly, even though it may have any
consequences. The court should not get into merits-demerits of the statute and should not
see what would be the results of literal (grammatical) interpretation. It is duty of the legislature
to consider the consequences. The duty of courts is to interpret the Statutes as per the
intention of the legislature.
Kailash Chandra v/s Sri Kishan (A.I.R. 1998 Rajasthan 131)— Rajasthan High Court
decided that—where the language of Statute is clear and unambiguous, the Court shall do
literal or grammatical interpretation without bothering about the consequences. A court
should not consider that such interpretation would cause hardship, inconvenience, or
injustice.
The Fifth rule of logical interpretation is—Statute should be logically constructed.
Interpretation of Statutes should be done in such a way so that Prevent the
• Mischief.
• Fulfill the Intention of Legislature, and
 • Does not ignore the Internal Objects of Statutes.

The Seventh rule of logical interpretation is—Beneficial Construction of Statutes. It is

established that almost all Statutes have public interest as their object. Hence, public interest
should be kept in mind interpreting Statutes. Along with Public interest, the intention of the
legislature is required to be considered. Beneficial Construction does not mean that the
intention of the legislature should be ignored. Statutes should be so beneficially construed
that the intention of legislature IS also fulfilled.

The Eighth rule of logical interpretation is Weaknesses, defects, or Mistakes of Legislature

should not be pointed out. The legislature is a competent body. There is a presumption
regarding the legislature that it does not commit mistakes. Hence, this fact should be
considered also at the time of interpretation and should avoid pointing out the mistakes of the
legislature. It is not proper to have an arbitrary interpretation of Statutes by pointing out the
mistakes of the legislature. Whatever law passed by the legislature should be considered
absolute while interpreting.

The Ninth rule of logical interpretation Non-fulfilment of weakness remained in Statutes.

Several times, statutes do have one or other weaknesses. It is natural. But the Court cannot
fulfill these weaknesses. Duty of Court is to interpret the Statutes, not to frame the Laws.
Courts neither add something nor is anything removed from it. Court has interpreted only
those which have been mentioned in the Statutes.

Que 5) The Golden Rule

A. INTRODUCTION:
According to Salmond, Interpretation is the process by which the courts
seek to discover the meaning of the legislature through the medium of
authoritative forms in which it is expressed.
The purpose and objective are as follows:
✓ To understand the techniques of interpreting words mentioned under the
statue.
✓ To explore the true meaning of provisions mentioned in the statue.
✓ To find out the intention of the legislature behind framing the law.
There are certain rules which have been provided for Interpretation of
statutes:
1. Literal Rule of Interpretation
2. Golden Rule of interpretation
3. Mischief Rule of Interpretation
4. Harmonious Rule. Etc.
B. GOLDEN RULE OF INTERPRETATION
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. While 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 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 intended certain objects. Thus, any such interpretation
which leads to unintended objects shall be rejected.

C. MEANING

This rule gives the words used in a statute their ordinary meaning. But if
that ordinary meaning ends up giving an absurd result which is not according to
the intent of the legislature then the judge can give the word a meaning which
makes the statute rational. This is done so that the statute can remedy the
weakness that it was made to cure. There are two cases,

1. If the word is a homograph i.e. it has two meanings, then the meaning
which is suitable will be given.

2. If the word has only one meaning, then the judge can give a completely
different meaning.

D. ADVANTAGES AND DISADVANTAGES OF THE RULE

 ADVANTAGES:

1. It helps to give a rational result.

2. It helps in closing any loophole.

3. It brings common sense to the law.

DISADVANTAGES:

a. Judges have power only in case there is ambiguity.

b. Judges cannot add or modify a statute.

E. CASE LAWS:
I. Grey v. Pearson
In this case, the court stated that usually the literal and normal meaning
of the word should be used but if the normal meaning gives an absurd result, then
that meaning should be avoided. A different meaning should be given to the word
so that the inconvenience can be avoided.

II. 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.
III. State of Madhya Pradesh v. Azad Bharat Financial Company, AIR 1967
SC 276,
A transporting company was carrying a parcel of apples was challenged
and charge-sheeted. The truck of the transporting company was impounded as the
parcel contained opium along with the apples. At the same time, the invoice shown
for the transport consisted of apples only.
Section 11 of the opium act 1878, all the vehicles which transport the
contraband articles shall be impounded and articles shall be confiscated. It was
confiscated by the transport company that they were unaware of the fact that
opium was loaded along with the apples in the truck.
The court held that although the words contained in section 11 of the said
act provided that the vehicle shall be confiscated but by applying the literal rule of
interpretation for this provision it is leading to injustice and inequity and therefore,
this interpretation shall be avoided. The words ‘shall be confiscated’ should be
interpreted as ‘may be confiscated’.

F. CONCLUSION:
1. It is the duty of the Court to give effect to the meaning of an Act when the
meaning can be fairly gathered from the words used, that is to say, if one
construction would lead to an absurdity 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 the same words
used in the same section, and even the same sentence, have to be construed
differently. Indeed, the law goes so far as to require the courts sometimes
even to modify the grammatical and ordinary sense of the words, if by doing so
absurdity and inconsistency can be avoided.
2. The Court should not defeat the provision of the Act whose meaning is, on the
face of it, reasonably plain. Of course, this does not mean that an Act or any
part of it can be reorganize. It must be possible to spell the meaning
contended for, out of the words actually used.
3. Unless the words are without meaning or illogical, it would be safe to give
words their natural meaning because the framer is presumed to use the
language which conveys the intention and it would not be in accord with any
sound principle of construction to refuse to give effect to the provisions of a
statute on the very elusive ground that to give them their ordinary meaning
leads to consequences which are not in accord with the notions of propriety or
justice entertained by the Court.
Or use this conclusion
The main purpose of the court is to deliver Justice. There might be situations
when a proper interpretation of the statutes is required to deliver so. Legislature
makes the laws and it's upon the discretion of the judge to interpret it consistent
with the cases. It's extremely important to know the intention of the legislature
within the making of the statute.

There are times when the statute isn't clear, unambiguous or have an absurdity, it
is the responsibility of the judge to urge obviate such absurdity and interpret the
statutes. Golden Rule is essentially the modification of Literal rule. it's applied to
resolve ambiguity and provides the aiming to the statute. It's upon the discretion
of the judges to use these rules of Interpretation because the case may be.
Que 6) Mischief Rule
A. INTRODUCTION:
According to Salmond, Interpretation is the process by which the courts
seek to discover the meaning of the legislature through the medium of
authoritative forms in which it is expressed.
The purpose and objective are as follows:
✓ To understand the techniques of interpreting words mentioned under the
statue.
✓ To explore the true meaning of provisions mentioned in the statue.
✓ To find out the intention of the legislature behind framing the law.
There are certain rules which have been provided for Interpretation of
statutes:
5. Literal Rule of Interpretation
6. Golden Rule of interpretation
7. Mischief Rule of Interpretation
8. Harmonious Rule. Etc.
B. Mischief Rule:
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.

C. HEYDON’S CASE
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-
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.
D. ADVANTAGES AND DISADVANTAGES OF THE RULE
• Advantages:
1. It focuses on the parliament’s intention behind making the law.
2. It allows judges to apply their minds.
3. It allows judges to consider the social and technological changes.
4. It allows for parliamentary sovereignty.
5. It helps avoid unjust results.

• Disadvantages:
1. It is difficult to decipher the parliament’s intention.
2. It is considered as an outdated rule of interpretation.
3. It makes the law uncertain.
4. It is said to be undemocratic as it gives too much power to the judiciary
which is an unelected branch of the government.

E. TWO IMPORTANT FORMULAS RELATED TO MISCHIEF ARE—

• Pro-private commando: and
• Pro-bona public
Both these formula means that the Courts should construe the statute in
such a manner as to suppress the mischief and encourage the remedy.
Simultaneously, further mischief could be prevented from finding out the
intention of the legislature. It should be encouraged in such a way that the
intention of the legislature is achieved
Professor Dicey in his book ‘Jurisprudence’ says that the mischief rule
can encroach upon the literal and grammatical interpretation of the
statute. The court should construe the statute as possible, in such a manner to
suppress the mischief and remedy is easily obtained

F. 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.

G. CONCLUSION:
In the context of all above we can say that it is the duty of Courts to
construct the statute in such a way to suppress the mischief and encourage the
remedy according to the intention of the legislature. The statute should be
construed in accordance with the intention of legislature
As it can be seen from the case, mischief rule can be applied differently
by different judges. It is mainly about the discretion and understanding of the
person applying it. Though, it as a far more satisfactory way of interpreting acts
as opposed to the Golden or Literal rules. It usually avoids unjust or absurd
results in sentencing but it also seen to be out of date as it has been in use
 since the 16th century, when common law was the primary source of law and
parliamentary supremacy was not established. It gives too much power to the
unelected judiciary which is argued to be undemocratic. In the 16th century,
the judiciary would often draft acts on behalf of the king and were therefore
well qualified in what mischief the act was meant to remedy.
This is not often the case in modern legal systems. The rule can make
the law uncertain, susceptible to the slippery slope. Therefore Purposive
interpretation was introduced as a form of replacement for the mischief rule,
the plain meaning rule and the golden rule to determine cases. The purposive
approach is an approach to statutory and constitutional interpretation under
which common law courts interpret an enactment (that is, a statute, a part of a
statute, or a clause of a constitution) in light of the purpose for which it was
enacted.

Questions:

1.WHAT IS IOS? EXPLAIN THE BASIC PRINCIPLE AND RULES OF INTERPRETATION.

2.INTERNAL AID ITS POSITION ROLE OF LONG TITLE AND PREAMBLE IN IT.

3.PROVISION OF REPEAL OF STATUTE AND IT'S EFFECT, DIFFERENT TYPES.

4.EXPLAIN EXTERNAL AID OR TEXTBOOK AS AN EXTERNAL AID TO CONSTRUCT STATUTE.

5.HARMONIOUS CONSTRUCTION.

6.TAXING STATUTE AND ITS STRICT CONSTRUCTION.

7.PENAL STATUTE AND ITS CONSTRUCTION.

1.WHAT IS IOS ? EXPLAIN THE BASIC PRINCIPLES AND RULES OF INTERPRETATION.

ANS:

INTRODUCTION:
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.

Definition: 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.

OBJECTIVE OF INTERPRETATION:
The main objective of interpretation is to determine the intention of the legislature which is expressed
impliedly or expressly. The expression intention of the legislature is a shorthand reference to the
meaning of words used by the legislature objectively determined with guidance furnished by the
accepted principles of interpretation. If a statutory provision is open to more than one interpretation
the Court has to choose that interpretation that represents the true intention of the legislature in
other words the ‘true meaning’ or a ‘legal meaning’.
GENERAL PRINCIPLES OF INTERPRETATION:
When the intention of legislature is not clearly expressed, a court needs to interpret the laws using
the rules of interpretation. There are two types of Rules of Interpretation with sub-categories:

1. The Primary Rule: Literal Interpretation

2. The Mischief Rule: Heydon’s Rule
3. Rule of Reasonable Construction or Ut Res Magis Valent Quam Pareat
4. Rule of Harmonious Construction
5. Rule of Ejusdem Generis

1. LITERAL RULE.

The most important step throughout interpretation is to analyze the language and the exacting
significance of the resolution. The words in an institution have their normal impact and the
development of a demonstration relies upon its phrasing. There ought to be no augmentations or
replacement of words in the development of rules and their interpretation. The essential principle of
interpretation is to decipher words as they are. It ought to be taken into note that the standard can
be applied just when the implications of the words are clear for example words ought to be basic so
the language is plain and just one sign can be determined out of the resolution.

Case– State of Kerala v. Mathai Verghese and others, 1987 AIR 33 SCR(1) 317 in this case, a person
was caught along with the counterfeit currency “dollars” and he was charged under section
120B,498A, 498C, and 420 read with segment 511 and 34 of Indian Penal Code for having fake cash.
The blamed battled under the watchful eye of the court that a charge under segment 498A and 498B
of the Indian Penal Code must be imposed on account of falsifying Indian money notes and not in the
situation of duplicating unfamiliar cash notes. The court held that the word money notes or monetary
order can’t be prefixed. The individual was held obligated to be charge-sheeted.

2. MISCHIEF RULE.

Mischief Rule was originated in Heydon’s case in 1584. It is the rule of purposive construction as in this
the purpose of the statute is most important. It is referred to as Heydon’s rule because it had been
given by Lord Poke in Heydon’s case in 1584. It is called as mischief rule because the main target is on
curing the mischief.

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

i. What was the common law before the making of an act?

ii. What was the mischief for which the present statute was enacted?
 iii. What remedy did the Parliament sought or had resolved and appointed to cure the
disease of the commonwealth?
iv. The true reason for the remedy.
The purpose of this Mischief rule is to suppress the mischief and advance the remedy.

Case-Smith v. Huges, 1960 WLR 830, in this case, the prostitutes were soliciting in the streets of London
and it was creating a huge problem in London and this was causing a great problem in maintaining law
and order so to prevent this problem, Street Offences Act, 1959 was enacted. After the enactment of
this act, the prostitutes started soliciting from windows and balconies and 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 weren’t solicited from the streets. The court held that although
they were not soliciting from the streets yet the mischief rule will be applied to prevent the soliciting
by prostitutes and shall look into this issue. By applying this rule, the court held that the windows and
balconies were taken to be an extension of the word street, and the charge sheet was held to be
correct.

3. RULE OF REASONABLE CONSTRUCTION OR UT RES MAGIS VALENT QUAM PARENT.

This is a Latin maxim that means a thing should affect than being made void. It is a rule of construction
which means the construction of a rule should give effect to the rule rather than destroying it, i.e.,
when there are two constructions possible in a provision such that one gives effect to the provision
and the other renders the provision inoperative, the former which gives effect to the provision is
adopted and the latter is discarded.

Case- K.P. Varghese v. ITO[1981] The court should as far as possible avoid that construction that
attributes irrationality to the Legislature and prefers a construction that renders the statutory
provision constitutionally valid rather than the one which makes it void.

4. RULE OF HARMONIOUS CONSTRUCTION.

When two or more provisions of the same statute are repugnant to each other, then in such a situation
the court, if possible, by maintaining harmony between the two will try to construe the provisions in
such a manner as to give effect to both the provisions. The inquiry that the two arrangements of a
similar rule are covering or fundamentally unrelated might be hard to decide. The legislating body
explains its expectation through the words utilized in the arrangement of the resolution. In this way,
here the fundamental standard of agreeable development is that the governing body couldn’t have
attempted to negate itself. In the instances of understanding of the Constitution, the rule of
harmonious construction is applied ordinarily.

Case- Ishwari Khaitan Sugar Mills v. State of Uttar Pradesh, Here, 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 the
Industries (Development and Regulation) Act, 1951, and the state did not have the power of
acquisition or requisition of property which was under the control of the union. The SC held that the
power of acquisition was not occupied by the Industries (Development and Regulation) Act, 1951, and
the state had a separate power under Entry 42 List III.

5. THE GOLDEN RULE OF INTERPRETATION.

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 altogether
such events the literal meaning shall be discarded and interpretation shall be wiped out such a fashion
that the aim of the legislation is fulfilled.

Case- Tirath Singh v. Bachittar Singh, AIR 1955 SC 850 In this case, there was an issue about issuing of
the notice under section 99 of Representation of People’s Act, 1951, concerning corrupt practices
involved within the election. According to the rule, the notice shall be issued to all or any those persons
who are a party to the election petition and at a similar time to people who are not a party to it.
Petitioner contended that no such notice was issued to him under the said provision. The notices were
only issued to those that were non-parties to the election petition.

CONCLUSION:

‘Interpretation of Statutes’ has defined statute as the will of the legislature. Usually,
it refers to the act that is enacted by the legislature. The term statute is generally
applied to laws and regulations of every sort law which ordains, permits or prohibits
anything which is designated as a statute, without considering from what source it
arises. Constitution of India has no particular definition for the word statute but it
uses the term “law” for denoting the actions of legislature and its primary power.

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.
2.INTERNAL AID ITS POSITION, ROLE OF LONG TITLE AND PREAMBLE IN IT.

ANS:

INTRODUCTION:
An Aid, on the other hand is a device that helps or assists. For construction or interpretation, the
court has to take recourse to various internal and external aids. Internal aids mean those materials
which are available in the statute itself, though they may not be part of enactment. These internal
aids include, long title, preamble, headings, marginal notes, illustrations, punctuation, proviso,
schedule, transitory provisions, etc. When internal aids are not adequate, court has to take recourse
to External aids. External Aids may be parliamentary material, historical background, reports of a
committee or a commission, official statement, dictionary meanings, foreign decisions, etc.
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.
While interpreting any statute judges refer various aids. These aids to statutory interpretation are
divided into internal aids and external aids. These are sometimes referred to as intrinsic aids and
extrinsic aids to interpretation.

INTERNAL AIDS IN INTERPRETATION OF STATUTES

Internal aids are those contained in the statute itself and consist of the:

1. Long Title 2. Preamble

3. Heading 4. Marginal Notes

5. Definitions 6. Illustrations

7. Proviso 8. Explanations

9. Schedules 10.Punctuation

11.Non Obstante Clause

ROLE OF LONG TITLE:

A statute is headed by a long title whose purpose is to give a general description about the object of
the act. Normally, it begins with the words An Act to…

For instance, the long title of the Code of Criminal Procedure, 1973 says: An Act to consolidate and
amend the law relating to criminal procedure, and that of the Prevention of Corruption Act, 1988
says: ‘An Act to consolidate and amend the law relating to the prevention of corruption and matters
connected therewith’.

In the olden days the long title was not considered a part of the statute and was, therefore, not
considered an aid while interpreting it. There has been a change in the thinking of courts in recent
times and there are numerous occasions when help has been taken from the long title to interpret
certain provisions of the statute but only to the extent of removing confusions and ambiguities. If the
words in a statute are unambiguous, no help is derived from the long title.

The Long Title of a Statute is an internal part of the statute and is admissible as an aid to its
construction. Statute is headed by a long title and it gives the description about the object of an Act.
It begins with the words- “An Act to ………….” For e.g. The long title of the Criminal Procedure Code,
1973 is – “An Act to consolidate and amend the law relating to criminal procedure”. In recent times,
long title has been used by the courts to interpret certain provision of the statutes. However, its
useful only to the extent of removing the ambiguity and confusions and is not a conclusive aid to
interpret the provision of the statute. In Re Kerala Education bill, the Supreme Court held that the
policy and purpose may be deduced from the long title and the preamble. In Manohar Lal v State of
Punjab, Long title of the Act is relied as a guide to decide the scope of the Act.

In Poppatlal Shah v. State of Madras, AIR 1953 SC 274- the title of the Madras General Sales Tax,
1939, was utilised to indicate that the object of the Act is to impose taxes on sales that take place
within the province.

In the case of Amarendra Kumar Mohapatra v. State of Orissa AIR 2014 SC 1716- the Court has held
that the title of a statute determines the general scope of the legislation, but the true nature of any
such enactment has always to be determined not on the basis of the label given to it but on the basis
of its substance.

In Manoharlal v. State of Punjab AIR 1961 SC 418- it was held that no doubt the long title of the Act
extracted by the appellant’s counsel indicates the main purposes of the enactment but it cannot
control the express operative provisions of the Act.

ROLE OF PREAMBLE:

The main objective and purpose of the Act are found in the Preamble of the Statute. Preamble is the
Act in a nutshell. It is a preparatory statement. It contains the recitals showing the reason for
enactment of the Act. If the language of the Act is clear the preamble must be ignored. The preamble
is an intrinsic aid in the interpretation of an ambiguous act. If any doubts arise from the terms
employed by the Legislature, it has always been held a safe means of collecting the intention to call
in aid the ground and cause of making the statute and to have recourse to the 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. The Preamble to the Act
contains the aims and objectives sought to be achieved, and is therefore, part of the Act. It is a key
to unlock the mind of the law makers.

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”.

In Kashi Prasad v State, the court held that even though the preamble cannot be used to defeat the
enacting clauses of a statute, it can be treated as a key for the interpretation of the statute.

Therefore, in case of any ambiguity or uncertainty, the preamble can be used by the courts to
interpret any provision of that statute. But there is a caution here. The apex court has held
in Maharishi Mahesh Yogi Vedic Vishwavidyalaya v. State of M.P. AIR (2013) 15 SCC 677– the court
cannot have resort to preamble when the language of the statute is clear and unambiguous.

Similarly it has been held that help from preamble could not be taken to distort clear intention of the
legislature– Burrakar Coal Company v. Union of India AIR 1961 SC 954.

CONCLUSION:

Statute generally means the law or the Act of the legislature authority. The general rule of the
interpretation is that statutes must prima facie be given this ordinary meaning. If the words are clear,
free from ambiguity there is no need to refer to other means of interpretation. But if the words are
vague and ambiguous then internal aid may be sought for interpretation. Internal aids are
considered as first option for interpretation and when they fails only then external aids come into
play. It is now well settled that Long Title of an Act is a part of the Act and is admissible as an aid to
its Interpretation. The preamble is an intrinsic aid in the interpretation of an ambiguous act.
3.PROVISION OF REPEAL OF STATUTE AND IT'S EFFECT, DIFFERENT TYPES.

Ans:
INTRODUCTION: In general, the term repeal stands for to cancel or to revoke. But in
the context of law, it means to “abolish statutes”. Repeal of statutes means the
abolition of the law, and once if any statute is abolished then it is considered void
and possesses no effects. In addition, there is no basic difference between
amendment and repeal. Both the term amendment and repeal is used for stating a
similar expression that is the substitution or omission or addition.

Repeal can be defined as the abrogation or revocation of an existing law by legislative

action. Over the years, there have been numerous legal developments leading to the
introduction of fresh legislation that may or may not repeal the existing laws that are
already in force. Such repeal sometimes becomes necessary in order to suit the
changing needs of the society.

There exist two types of statutes temporary and perpetual. Temporary statutes tend
to have effects for a specific period of time. They have no effects after the expiry of
the specific period, however, the permanent or the perpetual statute is the one in
which the statute remains effective until it is substituted or repealed by the legislative
act. The power to repeal a statute is conferred to the legislature is similar to the
powers it has for the enactment of a statute. For example, the Companies Act, 2013
repealed the Companies Act 1956, the Criminal Procedure Code, 1973 repealed the
previous Criminal Procedure Code, etc. such power of repealing a statute is similar
and coextensive to the power of making or enacting a law. Both the union and the
state legislature are empowered with such power however they are restricted to
delegate the power of repealing.

OBJECTS OF THE REPEALING ACT

The primary object of this act is to bring necessary changes in the existing law for
changing socio-economic and cultural conditions from time to time. The purpose of
this Act is to remove the outdated or obsolete matter from the body of law. After the
removal of obsolete matter, it is the court that decides whether the new provision
meets its goal and has different intentions or not. This act is the editorial revision
by abolishing obsolete and unnecessary matter of the statute and adding new and
proper information in the books of the statute.

KINDS OF REPEAL
There are two types of repeal:

1. Express repeal
2. Implied repeal

1.Express repeal
In the case of express repeal, the statute expressly mentions that an earlier law will no longer be
applicable, and thus would be inoperative. The Legislature doesn’t need to use any particular words
or phrases, but it must make its intention to repeal the statute in question clear. Generally, phrases
like “shall cease to have effect” or “all provisions that are inconsistent with this Act are hereby
repealed” are used in the later statute to repeal an existing statute. Statutes may have separate
repealing provisions that expressly state how that Act shall have an overriding effect over earlier
enactments that may be in conflict with it or are dealing with the same subject matter. When the
subsequent legislation contains a repealing provision stating that certain sections or Acts shall be
repealed, it amounts to express repeal. This is based on the Latin maxim, “expressio unius persone
vel rei est exclusio alterius”, which means express mention of a thing or person is the exclusion of
another.

Essential Features That Constitute Express Repeal

• The first and foremost feature is that there must be a repealing statute.

• The earlier statute must be repealed by the new enacting or repealing statute.

• The enacted statute must have clear intention showing the effect of the repeal.

In Bhagat Ram Sharma v. Union of India (1988) it was been held that "there is no real distinction
between repeal and an amendment." It has also been held that "where a provision of an Act is
omitted by an Act and the said Act simultaneously re-enacts a new provision which substantially
covers the field occupied by the repealed provision with certain modification, in that event such re-
enactment is regarded having force continuously and the modification or changes are treated as
amendment coming into force with effect from the date of enforcement of re-enacted provision."

2.Implied Repeal

In the case of implied repeal, no such express indication is provided by the Legislature as it is based
on presumption or inference. The doctrine of implied repeal is based on the Latin maxim “leges
posteriores priores contrarias abrogant”, which means that the later laws shall abrogate the earlier
laws that are contrary or in conflict with the subsequent laws. This usually applies to cases where
two or more statutes are mutually inconsistent to such an extent that it becomes impossible for them
to be in force concurrently. However, this doctrine must be applied only when there is no possibility
of harmonious construction of the conflicting laws and the two cannot stand together. Thus, a repeal
may not be necessarily inferred if the two Acts can be read together.

The importance of the doctrine of implied repeal is evident while dealing with the principle of double
jeopardy. A single act or omission may attract more than one provision. As a result, one may think
that the accused can be prosecuted under two or more statutes. However, Section 26 of The General
Clauses Act, 1897 which has been reproduced below, is a provision that deals with offences that are
punishable under two or more enactments.
“Where an act or omission constitutes an offence under two or more enactments, then the offender
shall be liable to be prosecuted and punished under either or any of those enactments but shall not
be liable to be punished twice for the same offence.”

On the other hand, Article 20 (2) of the Constitution of India states that:
“No person shall be prosecuted and punished for the same offence more than once.”
In such a scenario, if the subsequent enactment varies the penalty or procedure for a given offence,
then the former statute dealing with the same offence is abrogated by implication.
Municipal council, Palari v. T.J. Joseph AIR 1963 3C 1561, p. 1564 In the instant case, it was held that
if an act or provision enacted is inconsistent from the act previously enacted and one of the acts must
be obliterated. The presumption, in this case, rebutted and the implied repeal is inferred.
For the implied repeal of a statute following points are to be considered:

• Whether the previously enacted laws are in direct contradiction to the later enacted laws.
• The conflict between the laws is of such a nature that can’t be resolved and reconciliation
between the laws is not possible.
• Whether the newly enacted act is not consistent with the previously enacted act and one
has to be obliterated.
• When both the laws are of such a nature that occupy and deals with the same field.

Ratanlal Adukia v Union of India (AIR 1990 SC 104) In the instant case, the Supreme Court stated
that the doctrine of implied repeal is loosely based on the statement that the legislature assumed
the current state of the law did not intend to generate any vagueness by retaining the conflicting
provisions. The court while implicating this doctrine examines the nature and scope of the two
enactments by giving effect to the legislative intent.

GENERAL CONSEQUENCES OF REPEAL

• A newly enacted law repudiates the existing one.

• The statute after getting repealed becomes ineffective.
• Statute repealed is abolished by the repealing statute as if it had never been made by the
legislature.
• Except for a saving clause, each and every part of the statute is considered
unconstitutional.
• In order to validate a transaction made under a repealed statute, the law can
retrospectively amend the statute even after it is obliterated.
EFFECTS EMBEDDED UNDER THE GENERAL CLAUSE ACT, 1987

If any act made after the incorporation and commencement of this Act, repeals any statute made
until now then until a different intention or object appears between the act and the repeal shall not-
effects the operation commenced under the provision of this Act.

CONCLUSION

It can be concluded that the Repeal of statutes means the abolition of the law, and once if any statute
is abolished then it is considered void and possesses no effects. In addition, there is no basic
difference between amendment and repeal. Both the term amendment and repeal are used for
stating similar expression that is the substitution or omission or addition. Both the union and the
state legislature are empowered with such power however they are restricted to delegate the power
of repealing.

The primary object of this act is to bring necessary changes in the existing law for changing socio-
economic and cultural conditions from time to time. The purpose of this act is to remove the
outdated or obsolete matter from the body of law. After the removal of obsolete matter, it is the
court that decides whether the new provision meets its goal and has a different intention or not. This
act is the editorial revision by abolishing obsolete and unnecessary matter of the statute and adding
new and proper information in the books of the statute.

4.EXPLAIN EXTERNAL AID OR TEXTBOOK AS AN EXTERNAL AID TO CONSTRUCT STATUTE.

Ans:

INTRODUCTION:

When internal aids that are preamble, explanation, illustrations, etc are inadequate for the purpose
of interpretation, Judges may take external aids into consideration. When the words of the Act are
clear and unambiguous, the external aids are not required.

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 aids 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.

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.
2.EXTERNAL OR EXTRINSIC AIDS

1. Dictionary.
2. Historical Background
3. Judicial Reports
4. Reference to Reports of Committees
5. Textbooks
6.Parlamentary Debates.
7. International Law: Treaties and Conventions

1.Historical Background
This includes the original idea of drafting such an Act. The reason behind enacting such laws the cases
which influenced the parliamentarians to bring out such laws. It also includes the debates made
during passing the laws. And the first-hand hand information collected while making the laws.

2.Reference to Reports of Committees

The reports made by the various committees during the enactment of the legislation can be referred
as it gives more clarity to the words and also helps us to understand the intention behind the act, by
this, we can figure out what was the defect or mischief which was present in the previous law.
When parliament passes the enactment based on the committee report and there is any confusion
or ambiguity in the terms of the statute that can be easily clarified by referring that committee
reports and it helps in the interpretation of the statute very efficiently.
In A.K. Gopalan v. State of Madras (1950), the Supreme Court observed that the debates in
Parliament on a bill are not admissible for the construction of an act. However, it became
incompatible to the Supreme Court to refer legislative history as an aid, while interpreting a provision
in the statute.

3.Judicial Decisions (Precedents)

Every enactment made by the parliament is based on some or other case, so by referring to the
previously giving judgments by the higher courts helps us to analyse and form laws. These
judgements may be Indian judgements or foreign judgements. Foreign decisions can be taken into
consideration when other countries also follow the same system of jurisprudence. But the priority
should be given to the Indian judgements.

4.Dictionaries
The meaning of particular words in an Indian statute is to be found not so much in a strict
etymological propriety of language nor even in popular sense, as in the subject or occasion on which
they used. But it is well known that words are generally used in their ordinary sense and therefore,
though dictionaries are not to be taken as authoritative in regard to the meanings of the words used
in statutes, they may be consulted.
In Voltas Ltd. v. Rolta India Ltd. (2014) the Supreme Court has held that: “Dictionaries can hardly be
taken as authoritative exponents of the meanings of the words used in legislative enactments for the
plainest words may be controlled by a reference to the context.”

Therefore, the dictionaries are referred/consulted by the courts, whenever need arises to find out
the ordinary sense of the words. However, the courts must be very careful while referring the
dictionaries because the dictionary meaning of the word may not be true at all times in a particular
sense. If a word or an expression in an Act has been defined, there is no need to refer the dictionary
to find out its general meaning. One of the main objects of every dictionary of the English Language
is to give an adequate and comprehensive definition of every word contained in it. Dictionaries are
referred to, not only for meaning of the word, but also to find out the general use of it.

Motipur zamindary company private limited v. State of Bihar the question was whether sales tax
can be levied on Sugarcane. The applicant argued that it is green vegetable and should be exempted
from tax. The dictionary meaning of vegetable said anything which derived or obtained from the
plants. The SC rejected dictionary meaning and held that in common parlance vegetable is something
which is grown in kitchen garden and used during lunch and dinner and held that sugarcane is not
vegetable.

5.Social, Political and Economical and Scientific Developments

When the statute is being interpreted it should consider the present system in society. It should take
into consideration the changes in the situations and circumstances which have occurred after the
implementation of any act. And most importantly the changes in the social conditions and the
scientific changes in terms of technology should be given at most importance. When court starts
doing this kind of interpretation this helps the legislature to bring out the new amendments for the
statute.

6.Textbooks
Sometimes, courts, while interpreting a statute refer textbooks authored by distinguished jurists and
eminent scholars, so as to arrive at a true meaning of an enactment. However, it is not necessary that
the meaning of the words given in the textbooks should correspond to the views/opinions of the
Courts. In certain cases, Vedas are quoted with approval by the courts.
For example- Manu Smriti, Agna Valkya Smriti, Jimutavahana, Vignaneswara, Kanitilya etc.
Kesavananda Bharati v. State of Kerala (1973) In this case, the Supreme Court referred a large
number of textbooks. The majority opinion was that, in view of many opinions and counter opinions
expressed by the authors and jurists in the textbooks, it was not desirable to follow the opinions
quoted in the textbooks.

7.International law: treaties and conventions

One of the most important branches of public law is International law. It is of two kinds- Public
International Law and Private International Law/Conflict of Law. International Law is a body of rules
and principles, which regulate the conduct and relations of the members of the International
Community (UNO or U.N.). The term convention literally means “the act of convening a conference
as assembly, representatives or delegates assembled for a common cause”. EgUnited Nations
Convention on Law of Sea, 1982. Whereas the term treaty means an agreement 9 entered into
between two or more states (countries) on a particular subject. Eg- an agreement between India and
Pakistan is called Indo-Pak Treaty.

3.CONCLUSION:

External aids are the aids which are not available inside the statute but outside the statute, the court
may seek help to the external aids in case of repugnancy or inconsistency in the statutory provision.
5.HARMONIOUS CONSTRUCTION.

Ans:
INTRODUCTION:

When there is a conflict between two or more statues or two or more parts of a statute then the
rule of harmonious construction needs to be adopted. The rule follows a very simple premise that
every statute has a purpose and intent as per law and should be read as a whole. The interpretation
consistent of all the provisions of the statute should be adopted. In the case in which it shall be
impossible to harmonize both the provisions, the court’s decision regarding the provision shall
prevail.

The rule of harmonious construction is the thumb rule to interpretation of any statute. An
interpretation which makes the enactment a consistent whole, should be the aim of the Courts and
a construction which avoids inconsistency or repugnancy between the various sections or parts of
the statute should be adopted. The Courts should avoid “a head on clash”, in the words of the Apex
Court, between the different parts of an enactment and conflict between the various provisions
should be sought to be harmonized. The normal presumption should be consistency and it should
not be assumed that what is given with one hand by the legislature is sought to be taken away by
the other. The rule of harmonious construction has been tersely explained by the Supreme Court
thus, “When there are, in an enactment two provisions which cannot be reconciled with each
other, they should be so interpreted, that if possible, effect should be given to both”. A
construction which makes one portion of the enactment a dead letter should be avoided since
harmonization is not equivalent to destruction.

Harmonious Construction should be applied to statutory rules and courts should avoid absurd or
unintended results. It should be resorted to making the provision meaningful in the context. It
should be in consonance with the intention of Rule makers. Rule of Harmonious construction is
applicable to subordinate legislature also.

PRINCIPLES OF RULE OF HARMONIOUS CONSTRUCTION

In the landmark case of CIT v. Hindustan Bulk Carriers (2003) the supreme court laid down five
principles of rule of harmonious construction:

1. the courts must avoid a head-on clash of seemingly contradicting provisions and they must
construe the contradictory provisions.
2. the provision of one section cannot be used to defeat the provision contained in another
unless the court, despite all its efforts, is unable to find a way to reconcile their differences
3. when it is impossible to completely reconcile the differences in contradictory provisions, the
courts must interpret them in such a way so that effect is given both the provisions as much
as possible.
4. courts must also keep in mind that interpretation that reduces one provisions to useless
number or dead is not harmonious construction.
 5. to harmonize is not to destroy any statutory provision or to render it fruitless.

OBJECTIVES
The objective of harmonious construction is to avoid any confrontation between two enacting
provisions of a statute and to construe the provisions in such a way so that the harmonize. The basis
of this rule is that the Legislature never envisages to provide two conflicting provisions in a statute,
for the reason that it amounts to self-contradiction.

The real legislative intent, that we try to discover in the process of interpretation cannot be to provide
for something in one provision and deny the same in subsequent one. Hence, even if an inconsistency
is found, the same should be considered to be unintentional and as such, is required to be cured by
way of harmonious construction.
CASE LAWS
In Yakub Abdul Razak Memon v. State of Maharashtra the supreme court held that the conflict
between the provisions of two statutes has to be resolved by references to purpose and policy
underlying two enactments. The Court must take into consideration principal subject matter of
statute and particular perspective in order to determine whether a statute is special or general one.

In M.S.M. Sharma v. Krishna Sinha AIR 1959 SC 395, p. 410. the doctrine was applied to resolve the
conflict between Articles 19(1)(a) and Article 194(3) of the Constitution and it was held that the right
to freedom of speech as guaranteed under Article 19(1)(a) is to be read as subjects of powers and
privileges of the House of the Legislature which is similar to those of the House of Commons of the
United Kingdom as declared under Article 194(3).
But, after the above judgment, in Special Reference No. 1 of 1964, it was decided that Article 194(3)
was subordinate to Articles 21, 32, 211, and 226. This conclusion was also reached through the
recourse of Harmonious Construction.

In the case of Venkataramana Devaru v. the State of Mysore 1958 AIR 255, the Supreme Court
applied the doctrine in resolving a conflict between Articles 25(2)(b) and 26(b) of the Constitution
and it was held that the right of every religious denomination or any section thereof to manage its
own affairs in matters of religion [Article 26(b)] is subject to provisions made by the State providing
for social welfare and reform or opening of Hindu religious institutions of a public character to all
classes and sections of Hindus [Article 25(2)(b)].
The principle of ‘Harmonious Construction’ is also applicable in the case of construction of provisions
relating to subordinate legislation.

APPLICATION OF DOCTRINE OF HARMONIUS CONSTRUCTION

• Giving full effect to both the provisions and reducing the contrary nature and/or conflict
between them.
• Both the provisions that are conflicting in nature or are repugnant to each other are to
be read as a whole and the entire enactment in question must be considered.
• Of the two conflicting provisions, choose the one that is wider in scope.
• Compare the wider provision with the narrow provision and then try to interpret the
wider provision to see further consequence. If the consequence is as reasonable as to
 harmonize both the provisions, and it gives their full effect separately, no further inquiry
is needed. One important aspect to be kept in mind is that the legislature while framing
the provisions was fully aware of the situation which they entered to cover and therefore
all provisions enacted require to be given their full effect on scope.
• When one section of an Act takes away powers conferred by another Act, a non-obstante
clause must be used.
• It is imperative that the Court must try to find out the extent to which the legislature has
intended to give one provision an overriding power over another provision. In the case
of Eastbourne Corporation v. Fortes Ltd. it was held that if two contradictory sessions
cannot be reconciled, then the last section must prevail. Though this is not a universal
rule.

CONCLUSION
Law is made by the legislature and there is a possibility of situations of ambiguity. In that situations,
the rule of interpretation of statutes come into play and the provisions are construed so as to give
maximum effect to them. The doctrine of harmonious construction has helped judges to interpret
the two confronting laws easily and helped in providing justice to society at large. Thus, it is one of
the most important tools in hands of the judiciary while doing any interpretation of the statutes.

6.TAXING STATUTE AND ITS STRICT CONSTRUCTION.

Ans:

INTRODUCTION
Taxation statute is a fiscal statute which imposes the pecuniary burden on the taxpayer. So such
statutes are construed strictly. Plain, clear and direct grammatical meaning is given. Where there are
two possible outcomes then that interpretation is given which is in favour of assessee.

Any taxation statute involves three stages firstly, the subject on which tax is levied or
imposed, secondly, the assessment of the liability of assessee and lastly, the recovery once the
assessment is made. The first stage is where charging provisions of the act are involved. These
charging provisions must be clearly provided in the statute. These charging provisions provide the
extent and coverage of the subjects as to whom the tax is applicable. It also provides the outline in
form of subjects which the legislature wants to cover under the law. Charging provisions are to be
interpreted strictly as it results in financial burden. There cannot be any ambiguity and meaning
which is clear, obvious, direct is given. Nothing can be inferred to substantiate the intention of the
legislature or purpose for which the law was made. Once the revenue shows that particular subject
is covered by law then tax is applicable for all those subjects. But if it fails to proof then no tax can be
imposed by extending the meaning.
Principal of equity has no role to play in case of taxation law. It is because there is lot of deeming
legal fiction involved in tax laws. Thus, whatever is written must be strictly followed without
considering its justness. If the words are clear, then court has to give that meaning irrespective of
consequences it resulted into or in other words even if such construction is unequitable, then also
Court is bound due to legal fiction. Court cannot meet the deficiency by extending the provisions of
the statute. It is duty of the legislature to rectify it through amendments.

In a Taxation statute, if a word has a clear meaning, then in that case, the court is bound to follow
the clear meaning even if such meaning results in absurd results. It is in legislature’s domain to rectify
such absurdity. In case of taxation statutes, Courts cannot extend the scope of law by giving meanings
to word which are unclear or uncertain. This is based on the reason that if legislature had thought of
such situation then it would have covered it by using appropriate description and words under the
principal act or taxation authority would have issued some notification clarifying the same.

TAX SYSTEMS IN INDIA

The tax system of British India reflected characteristics of a traditional agriculture economy.
Revenues of the central government were dominated by custom duties as domestic requirements
for manufactured goods were dominated by custom duties as domestic requirements for
manufactured goods were met mostly from imports, chiefly from Britain and other commonwealth
countries. Import duties were levied on all most all items of imports whereas major items subject to
export duties were jute and tea in which India enjoyed near monopoly in the world market. Various
custom and tariff enactments were passed from time to time.
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.

The principle of strict interpretation of taxing statutes was best enunciated by Rowlatt J. in his classic
statement in Cape Brandy Syndicate v I.R.C. (1 KB 64, 71): "In a taxing statute one has to look merely
at what is clearly said. There is no room for any intendment. There is no equity about a tax. There is
no presumption as to a tax. Nothing is to be read in, nothing is to be implied. One can look fairly at
the language used." In the revenue satisfied the court that the case falls strictly within the provisions
of the law, the subject can be taxed. If, on the other hand, the case is covered within the four corners
of the provision of the taxing statute, no tax can be imposed by inference or by analogy or by trying
to probe into the intention of the legislature and by considering what was the substance of the
matter. Tax relief application is a mandatory requirement for refund purpose. It is well settled
principle that tax exemptions are strictly against taxpayers. Tax refunds in the nature of tax
exemption, are resolved strictly against the claimant.

Recently, in the case of Manila North Tollways Corporation vs. Commissioner of Internal Revenue
(2012)
The Court of Tax Appeals (CTA) had an occasion to apply again this principle of strict construction of
tax exemption and reiterated its position that an application for tax treaty relief must be filed prior
to any availment of tax treaty provision.

The claimant in this case simultaneously filed both its application for relief from double taxation and
its claim for refund with the International Tax Affairs Division (ITAD) more than one year from the
payment of its dividends to stockholders. The court noted that the claimant did not comply clearly
with the requirement provided under Revenue Memorandum Order (RMO) No. 1-2000 that the
availment of tax treaty relief should be preceded by such application at least 15 days before the
payment of dividend. Consequently, the court denied the claimant’s application for tax refund for
failure to comply with such conditions.

It is a strict principle of interpretation that a statute should be read in its ordinary, natural and
grammatical sense.
LIMITATION TO THE RULE OF STRICT CONSTRUCTION:
The principle of strict construction applicable to taxing statute does not, however, mean that where the
subject falls clearly within the letter of the law, the court can avoid the tax by putting a restricted construction
on same supposed hardship or on the grounds that the tax, or penalty imposed is heavy or oppressive. The
rule of strict construction does not negative the applicability of the well-known principle that a person who
claims an exemption has to establish it, and there is ample authority for the view that this principle applies to
exemptions granted in taxing laws as well. The Courts, in dealing with taxing statute, will not presume in favour
of any special privilege of exemption for taxation. It is to be borne in mind that the rule of strict construction
applies primarily to the charging provisions in taxing statute and has no application to the machinery
provisions. Machinery provision means the procedure for calculation and collection of taxes. These are to be
construed by the ordinary rules of construction. While construing machinery section of a taxing statute, it
should be strictly observed that the construction should effectuate the liability imposed by charging section
of the statute and at the same time it should render the machinery workable.

EXEMPTION CLAUSE - STRICT CONSTRUCTION

Exemption Clause - Strict Construction The law is well settled that a person who claims exemption or
concession has to establish that he is entitled to that exemption or concession. A provision providing
for an exemption, concession or exception, as the case may be, has to be construed strictly with
certain exceptions depending upon the settings on which the provision has been placed in the Statute
and the object and purpose to be achieved. If exemption is available on complying with certain
conditions, the conditions have to be complied with. The mandatory requirements of those
conditions must be obeyed or fulfilled exactly, though at times, some latitude can be shown, if there
is a failure to comply with some requirements which are directory in nature, the non-compliance of
which would not affect the essence or substance of the notification granting exemption.
In Hansraj Gordhandas v. H.H. Dave(2015) held that such a notification has to be interpreted in the
light of the words employed by it and not on any other basis. This was so held in the context of the
principle that in a taxing statute, there is no room for any intendment, that regard must be had to
the clear meaning of the words and that the matter should be governed wholly by the language of
the notification, i.e., by the plain terms of the exemption.
Some of the provisions of an exemption notification may be directory in nature and some are of
mandatory in nature. A 6 distinction between provisions of statute which are of substantive character
and were built in with certain specific objectives of policy, on the one hand, and those which are
merely procedural and technical in their nature, on the other, must be kept clearly distinguished. The
principles as regard construction of an exemption notification are no longer res integra. Whereas the
eligibility clause in relation to an exemption notification is given strict meaning where for the
notification has to be interpreted in terms of its language, once an assessee satisfies the eligibility
clause, the exemption clause therein may be construed literally.
CONCLUSION:
As the tax laws are interpreted strictly, legislature must ensure that words used in the statute are
clear and wide enough to cover all subjects which it intend to be taxed. Words and descriptions
should be used with proper care and sophistication so as to avoid any ambiguity. While making the
laws assistance of such experts should be taken who deal with such laws on daily basis as they are
the ones who understand the intricacies and could help in drafting the law involving the intricacies
and complexities. Experienced Chartered Accountants, Litigators and officers of tax department
should be consulted and their experience should be considered while enacting the laws. If the tax
laws are drafted with loopholes, then the purpose of that law is not fulfilled and the whole law
collapses.
Tax laws should be interpreted in manner so to maintain a balance between interest of both revenue
department and the assessee. Also, the role of Courts is not to apply the tax laws blindly and strictly
but it should check whether the transactions of assessee amounts to evasion of tax, avoidance of tax
or its just tax planning. If assessee deliberately makes the complex transactions so as to avoid taxes
and thereby intends to game the system, then the Courts should adopt for reasonable and equitable
construction in favour of revenue and to set examples for future jurisprudence of interpretation of
taxation laws.

7.PENAL STATUTE AND ITS CONSTRUCTION

Ans:
INTRODUCTION:
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.
The general rule governing the interpretation of penal statute is that it must be strictly construed.
Strict interpretation in the words of Crawford connotes: “If a statute is to be strictly construed,
nothing should be included within its scope that does not come clearly within the meaning of the
language used. Its language must be given exact and technical meaning with no extension on account
of implications or equitable considerations; or has been aptly asserted, its operation must be
confined to cases coming clearly within the letter of the statute as well as within its spirit and reason.
Or stated perhaps more concisely, it is close and conservative adherence to the literal or textual
interpretation”.
According to Sutherland by the rule of strict construction it is not meant that the statute shall be
stringently or narrowly construed but it means that everything shall be excluded from its operation
which does not clearly come within the scope of the language used.
In Sohan Lal v. Col.Prem Singh AIR 1989 (P&H) 316 the Punjab HC laid down that a strict construction
is one which limits the application of the statute by the words used. When it is said that all penal
statutes are to be construed strictly, it only means that the court must see that the thing charged is
an offence within the plain meaning of the words used and must not strain the words.
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.
STRICT RULE OF INTERPRETATION OF PENAL STATUTES
It is a general rule that penal enactments are to be construed strictly and not extended beyond their
meaning. According to Crawford criminal and penal statutes must be strictly construed, that is they
cannot be enlarged or extended by intendment, implication, or by any equitable consideration. In
other words, the language cannot be enlarged beyond the ordinary meaning of its term in order to
carry into effect the general purpose for which the statute was enacted. The rule of strict construction
requires that the language of a stature should be so construed that no case shall be held to fall within
it which does not come within the reasonable interpretation of the statute. It has also been held that
in construing a penal statute it is a cardinal principle that in case of doubt, the construction favourable
to the subject should be preferred. But these rules do not in any way affect the fundamental
principles of interpretation, namely that the primary test is the language employed in the Act and
when the words are clear and plain the court is bound to accept the expressed intention of the
legislature.
BASIS OF STRICT RULE OF INTERPRETATION OF PENAL STATUTES
The rule of strict construction of penal statutes is said to be founded on the tenderness of the law
for the rights of individuals and on the plain principle that the power to define a crime and ordain its
punishment is vested in the legislature and not in the judicial department. It is a reasonable
expectation that legislature will manifest its intention with reasonable clarity in penal statutes. It is
not competent for a court to create an offence by interpretation as this may operate to entrap the
unwary and ignorant and threaten the rights of the people generally. The rule that penal statutes
must receive strict construction was originally evolved in England at a time when English law
prescribed exceedingly harsh penalties and monstrous sentences for trivial offences.
For instance penalty by public hanging was given for pick pocketing. The cutting down of a cherry
tree in an orchard was punishable with death. A person who flicked a handkerchief was punishable
with deportation to Australia. The purpose of strict construction was to mitigate the rigour of such
harsh sentences and sweeping condemnations. Times have changed since and although the
circumstances which necessitated it no longer exist, the difference in approach made in respect of a
penal statute as against any other statute still persists and survives to this day. But this rule is now
only of limited application and its role is confined to cases where a selection of one construction is
to be made 4 out of the two or more constructions which are reasonably open.

According to Maxwell the rule of strict construction of penal statutes manifests itself in four ways—
(1) Express language is necessary for creation of criminal offences, therefore, no act is to be deemed
criminal unless it is clearly made so by words of the statute concerned. But it is not necessary that a
particular penalty be specified in order that an act or omission may constitute an offence.

(2) The words setting out the elements of an offence are to be strictly construed. And if there is any
reasonable doubt or ambiguity it will be resolved in favour of the person charged. A reasonable
interpretation which will avoid the penalty must be adopted. If there are two reasonable
constructions the court must give the more lenient one. The court must always see that the person
to be penalized comes fairly and squarely within the plain words of the enactment.
(3) Punishments can be imposed only if the circumstances of the case fall clearly within the words of
the enactment.
(4) Similarly, statutes dealing with jurisdiction and procedure are, if they relate to the infliction of
penalties, strictly construed.
CASE LAWS:

Chinubhai vs State of Bombay AIR 1960 is an important case in this respect. In this case, several
workers in a factory died by inhaling poisonous gas when they entered into a pit in the factory
premises to stop the leakage of the gas from a machine. The question was whether the employer
violated section 3 of the Factories Act, which says that no person in any factory shall be permitted to
enter any confined space in which dangerous fumes are likely to be present.

The Supreme Court, while construing the provision strictly, held that the section does not impose an
absolute duty on the employer to prevent workers from going into such area. It further observed that
the fact that some workers were present in the confined space does not prove that the employer
permitted them to go there. The prosecution must first prove that the workers were permitted to
enter the space to convict the accused.
In the case of State of Andhra Pradesh vs. Nagoti Venkatarma 1996(6) SCC 409 It has been held by
the supreme court that in the interpretation of penal provisions, Strict construction is required to be
adopted and if any real doubt arises, necessarily the reasonable benefit of the doubt would be
extended to the accused.
JK (Bombay) Ltd v. Bharti Matha Mishra [2001] 2 SCC 700.
In this case, it was held that the expression ‘officer or employee of a company’ applies not only to
the existing officer or employee but also includes past officers or employees where such an officer
or employee either

· wrongfully obtains possession of any property, or

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

The expression would also include the ‘legal heirs or representatives.’ It was held by the court that
the penal statutes should not be so liberally construed with the aid of presumptions, assumptions
and implications as to rope in for the purposes of prosecution such persons against whom the
prosecution is not intended by the statute and initiation of prosecution would be violative of Art 21
of the Constitution and against public policy.
CONCLUSION:
A statute may in certain aspects be a penal enactment and in certain others a counteractive one. In
respect of those provisions which are approved on the pain of punishment for a crime, the rule of
strict interpretation of penal statutes in the limited sense may be applied. At any rate, as undue effort
to construe such a provision liberally to encourage the beneficent purpose behind it may be
effectively counterbalanced on deliberation that a breach thereof leads to penal consequences .

Q 18 Discuss the Doctrine of Severability.

Introduction:
The doctrine of severability means that when some particular provision of a statute offends
or is against a constitutional limitation, but that provision is severable from the rest of the statute,
only that offending provision will be declared void by the Court and not the entire statute.

The doctrine has been explained in R.M.D. Chamarbangwala v. Union of India Case.

Doctrine of Severability
When the constitutionality of an enactment which is in question and it is found that part of
the enactment which is held to be invalid can be severed from the rest of the enactment the part so
severed alone shall be declared unconstitutional while the rest of the enactment shall remain
constitutional. Naturally, where such severance is not possible, the whole enactment shall have to
be held unconstitutional.
 This principle of severability was so explained by the Privy Council in Attorney General for
Alberta v. Attorney General for Canada. The real question is whether what remains is so
inseparably bound up with the part declared invalid that what remains cannot independently
survive or as it has sometimes been put whether a fair review of the whole matter it can be
assumed that the legislature would not have enacted at all that which survives without enacting the
part that it is ultra vires.
Case Law-

R.M.D. Chamarbangwala v. Union of India, [1957 SCR 930], is a landmark judgment on the
point where the question involved was as to whether the definition of prize competition in Section
2(d) of the Prize Competition Act, 1955, which covered with it both competition of skills and
gambling could be interpreted as limited to competitions of gambling alone.

Applying the grammatical and mischief rules of interpretation the Supreme Court concluded
that the expression, Prize Competition' would mean only prize competition of a gambling nature in
the Act.
Hon' ble Justice in the case observed -
(i) In determining whether the valid parts separable from the invalid parts thereof, it is the
intention of the legislature that it is the determining factor. The test to be applied is
whether the legislature would have enactment the valid part if it had known that the
rest of the statute was invalid.
(ii) If the valid and invalid provisions are so inseparably mixed up then the invalidity of the
Act in its entirety on the other hand, if they are so distinct and separate that after
striking out what is invalid what remains is in itself a complete code independent of the
rest, then it will be upheld notwithstanding that the rest has become unenforceable.
(iii) Even when the provisions which are valid are distinct and separate those which are
invalid, if they all form part of a single scheme which is intended to be operative as a
whole, then also the invalidity of a part will result in the failure of the whole.
(iv) When the valid and invalid parts of a statute are independent and do not form part of a
scheme but what is left after omitting the invalid portion is so thin and truncated as to
be in substance different from what it was when it emerged out of the legislature then
also it will be rejected in its entirety.
(v) The separatibility of the valid and invalid provisions of a statute does not depend on
whether the law is enacted in the same section or different sections, it is not the form
but the substance of the matter that it is material and that has to be ascertained on an
examination of the Act as a whole and of the setting of the relevant provisions therein.
(vi) If after the invalid portion is expunged from the statute what remains cannot be
enforced without making alterations and modifications therein, then the whole of it
must be struck down as void, as otherwise it will amount to judicial legislation.
(vii) In determining the legislative intent on the question of separatability, it will be
legitimate to take into account the history of the legislation, its object the title and the
preamble to it.
 Hon'ble Judge went on to add that by holding prize competition to be a competition of a
gambling, nature and characteristic of the Act was not affected and there was no need to rewrite
any of its provisions. They, thus could be severed in their application and enforcement of law to
competition of skill would be restrained by an appropriate order.
It is clear from the above that there are two kinds of severability. Severability by a statutory
provisions containing distinct and separate words dealing with distinct and separate subjects or
topics and severability in application of separatibility in application of separatibility in enforcement.

Q19. Explain General clauses act and its limitations in use.

Introduction:
The General Clauses Act, 1897 contains ‘definitions’ of some words and also some general
principles of interpretation. This Act intends to provide general definitions which shall be
applicable to all Central Acts and Regulations where there is no definition in those Acts or
regulations that emerge with the provisions of the Central Acts or regulations, unless there is
anything repugnant in the subject or context.
The act lay down the essential principle on how the law should be interpreted. It’s also
referred to as the interpretation act. The clause provides legal terms, methodologies, and
expressions that help to get rid of repetition and also provides a typical set of principles which is
employed in legislation. It provides rules on interpretation and expression to define things more
clearly.
The General Clauses Act has been enacted to shorten language used in parliamentary
legislation and to avoid the repetition of the same words in the same course of the same piece of
legislation. Act is meant to avoid the superfluity of language in a statute wherever it is possible to
do so.

Purpose of Act:
• The purpose of the overall Clauses Act is to put in one single statute different provisions
as regards the interpretation of words and legal principles which might otherwise need
to be specified separately in many various Acts and Regulations.
• In General clauses act, 1977 anything is to be done under the Act or Regulation, then
that power could also be exercised at any time after the passing of the Act or
 Regulation; but rules, bye-laws or orders so made or issued shall not become till the
commencement of the Act or Regulation.
• The purpose of the Act is to avoid superfluity of language in statutes wherever it is
possible to do so The General Clauses Act, thus, makes provisions as to the construction
of General Acts and other laws of all-India application. Its importance, therefore, in point
of the number of enactments to which it applies, is obvious.
The purpose of the Act has been stated by the Supreme Court in the case of The Chief
Inspector of Mines v. Karam Chand Thapar. It stated that the purpose of this Act is to place in one
single Statute different provisions as regards interpretation of words and legal principles which
would otherwise have to be specified separately in many different Acts and regulations.

POWER AND FUNCTIONARIES

Section 14: Power conferred to be exercisable from time to time” :
(1) Where, by any Central Act or Regulation made after the commencement of this Act, any
power is conferred, then unless a different intention appears that power may be exercised
from time to time as occasion requires.
(2) This section applies to all Central Acts and Regulations made on or after the fourteenth day
of January, 1887.
Section 15 : “Power to appoint to include power to appoint ex-officio”: Where by any legislation
or regulation, a power to appoint any person to fill any office or execute any function is conferred,
then unless it is otherwise expressly provided, any such appointment, may be made either by name
or by virtue of office.
Ex-officio is a Latin word which means by virtue of one’s position or office. Provision under this
section states that where there is a power to appoint, the appointment may be made by appointing
ex-officio as well.

Section 16: Power to appoint to include power to suspend or dismiss: The authority having for the
time being power to make the appointment shall also have power to suspend or dismiss any person
appointed whether by itself or any other authority in exercise of that power.
Section 17: “Substitution of functionaries”: (1) In any Central Act or Regulation made after the
commencement of this Act, it shall be sufficient, for the purpose of indicating the application of a
law to every person or number of persons for the time being executing the functions of an office, to
mention the official title of the officer at present executing the functions, or that of the officer by
whom the functions are commonly executed.

Section 18 : “Successors”: (1) In any Central Act or Regulation made after the commencement of
this Act, it shall be sufficient, for the purpose of indicating the relation of a law to the successors of
any functionaries or of corporations having perpetual succession, to express its relation to the
functionaries or corporations.
(2) This section shall also apply to all Central Acts made after the third day of January, 1868 and to
all Regulations made on or after the fourteenth day of January, 1887.
Section 18: “Official Chiefs and subordinates”: A law relative to the chief or superior of an office
shall apply to the deputies or subordinates lawfully performing the duties of that office in the place
of their superior, to prescribe the duty of the superior. This section applies to all the 12 Central Acts
made after the third day of January, 1868, and to all Regulations made on or after the fourteenth
day of January, 1881.
In K.G. Krishnayya v. State, AIR 1959 it was held that it is not essential that same
statutory authority that initiated a scheme under the Road Transport Corporation Act 1950, should
also implement it. It is open to the successor authority to implement or continue the same.
Similarly, in case under the Preventive Detention Act, where there is a change in the
Advisory Board after service of the detention order, the new Advisory Board can consider the case
pending before the earlier board.

Q20. Kinds of definations

Definition
Adding definitions to a statute definitions help greatly to the one who reads the
statute. The benefits that arise by adding meaning to the frequent and important words
of a statute are:
i. It provides some kind of certainty and idea as to what extent is the meaning of
the phrase or the word so defined, can be taken. Without having any definition
to a word, it becomes ambiguous as to what the statute or the legislature had
the intention of the word so added.
ii. When a word has been defined in a statute, it saves the same word to be defined
everywhere in a statute, since the word so defined are frequently usedIt is a
great help to those reading and making in use the statutes.
iii. By adding definition to a word, it is helpful as one can easily understand as to
what the statute is intended to say. A statute thus may well provide with the
definition of a word which suits the legislation and can differ with the general
meaning of the word and yet still stand authoritative.
iv. There are different meanings to a word when used as different dictionaries
provide with quite different meanings, hindering the interpretation of a word
and, thus the provision in a statute. Providing with a definition in the statute
 itself makes a lot easier to understand of what the word in the statute really
means and would help interpret further on if need be, thus eliminating the
ambiguity as to the meaning of a word or phrase in a statute.

Comparing both the pros and cons of adding a definition clause to a statute, it
seems the pros have a higher persuasive value of adding meaning to a statute than of
the cons of it.
The object of a definition is to avoid the necessity of frequent repetitions in
describing the subject matter to which the word or expression defined is intended to
apply. A definition contained in the definition clause of a particular statute should be
used for the purpose of that Act. Definition from any other statute cannot be borrowed
and used ignoring the definition contained in the statute itself.

1. RESTRICTIVE DEFINITIONS
A statute may define a word even artificially, setting up of its ambit, whether to make
restrictive of a definition or to make it extensive.

When a word is defined to ‘mean’ something, the definition prima facie is restrictive in nature and
is exhaustive. A restrictive definition means that the meaning so defined in the statute for a
particular word has a very restrictive ambit, so much so that its meaning cannot go beyond what
has been defined. There is nothing that can be included in the meaning beyond what has been
stated.Where ‘means’ is employed, it shows the definition enacted is hard and fast and that no
other meaning can be assigned to the word “defined” that is put down in the definition.

2. EXTENSIVE DEFINITION

When the word defined contains ‘include’ in the meaning, the definition is extensive in
nature. In case of an extensive definition, the definition of the word has the scope and ambit to go
beyond what has been stated and it also gives the scope to interpret and incorporate as to what all
can be included in that definition.

If a word is to mean one thing and include other things as well, then it does not mean that
the former thing will also be included in the meaning along with the latter things.

The word ‘include’ is very generally used in the interpretation clause in order to enlarge the
meaning of words or phrases occurring in the body of the statute, and when it is so used those
words or phrases must be construed as comprehending, not only such things, as they signify
according to their natural import, but also those things which the interpretation clause declares
that they shall include.

In State of Maharashtra v. Labour Law Practitioners’ Association, the court gave the word
‘district judge’ under Art. 236(a) of the Constitution an extensive definition saying that the word
would include the hierarchy of specialized civil courts viz. Labour courts and industrial courts which
are not expressly included in the definition.
But the word ‘include’ is susceptible of another construction, which may become imperative
if the context of the act is sufficient to show that it was not merely employed for the purpose of
adding the natural significance of the words or expressions used. This may be equivalent to ‘mean
and include’ and for the purpose of the act must invariably be attached to those words or
expressions. Thus, the word include may sometimes be used in the context of mean and would thus
limit or bar further inclusion of other things into the meaning of the word or phrase of the Act. The
word ‘include’ may in exceptional cases be construed as equivalent to ‘mean and include’.

3. EXHAUSTIVE DEFINITION
A definition using ‘mean and include’ is considered as exhaustive. This means that the
definition will embrace only what is compared within the ordinary meaning of the ‘means’,
together with what is mentioned in the ‘includes’ part of the definition.

Thus, a definition may both mean and includes wherein one thing would mean such and
such thing and others would include things more than what is stated. Thus, it can include and
exclude both in the sense that at one place in the definition it can include things and at the other
place of the same definition it can exclude other things to be incorporated.

The definition of ‘transfer of property’ in the Gift Tax Act, 1958 came into jeopardy as the
words ‘disposition, conveyance, assignment, settlement, delivery and payment’ were used in the
definition which signifies different modes of transfer of property. here it was construed that the
partition of a Hindu Undivided Family would not be included in this definition as the meaning
cannot be extended to a transfer of property where there is not tax applied.

4. AMBIGUOUS DEFINITIONS
There are definitions that are ambiguous in itself. This happens when the definition itself is
not clear as to its scope and meaning and there requires further interpretation of those words or
phrases in order to understand or make it applicable to a certain case. It is presumed that the
definitions given by the legislature in the statute will have an effect to the extent that there might
not be any requirement to interpret the word further on and that the meaning so provided would
be sufficient in itself, yet, there are definitions that the legislature makes which are ambiguous and
require further interpretation.

The use of the word “means” followed by the word “includes” in the definition of “banking
company” in Section 2(bb) of the ID Act is clearly indicative of the legislative intent to make the
definition exhaustive and would cover only those banking companies which fall within the purview
of the definition and no other.
The definition section may itself be ambiguous and may have to be interpreted in the light
of the other provisions of the Act and having regard to the ordinary connotation of the word
defined. A definition is not to be read in isolation.

It must be read in the context of the phrase which it defines, realizing that the function of a
definition is to give precision and certainty to a word or phrase which would otherwise be vague
and uncertain but not to contradict it or supplant it altogether.” Thus, in case a definition clause is
ambiguous and does not provide with a sufficient meaning, there requires interpretation for the
word in the sense that it should apply to the case.

Also, in order to understand in complete the meaning of the word, it should not be read in isolation
and should require taking help of other provisions or the definition for the same word provided in
different statutes. This, in turn, provides rather a specific and precise meaning to the word so
defined in ambiguity and helps in understanding applying it to the relevant situation and to
situation wherever necessary.

5. DEFINITIONS WHEN SUBJECT TO CONTRARY EXTENT

In context to the definitions of this kind, Lord Dunedin said, “it is a novel and unheard of the
idea that an interpretation clause which might easily so expressed as to cover certain sections and
not cover others should be when expressed in general terms divided up by sort of theory applicana
singula singulis, so as not to apply to the sections where context suggests no difficulty of
application.

If the legislature defines a term, in the absence of a clear indication to the contrary, those
terms shall be used as proposed. But where there is a context otherwise required, the terms or the
words shall be given a meaning different from that defined in the statute and thus comes into play
the part of the interpretation.
The definitions many times contain phrases like ‘unless the context otherwise requires’ or
‘unless there is anything repugnant in the subject or context’. In these situations, a contrary context
may be used for the purpose of the situation in the case. And even if it has not been expressly
stated in the definition, it is imperative to make the interpretation of the words so used if so
required.

Taking an example of the definitions of the contrary extent, in construing the word ‘court’
in Section 14(2) of the Arbitration Act, 1940, it was held that the word court as used therein meant
a court which appointed the arbitrator and the definition in Section 2(c) of the Act which defines
Court as meaning a court which would entertain suit on the subject matter does not govern Section
14(2) as the context made that definition inapplicable.
Similarly in construing the word ‘workman; in Section 33-C(2) of the Industrial Disputes Act, 1947, it
was held that the word included a dismissed workman although, in the definition of that word as
given in Section 2, a dismissed workman is included only for the purpose of industrial disputes in
Section 10.
The court not only has to look at the words but the context, the collocation and the object in order
to interpret the meaning to relate the matter.

CONCLUSION
The definition clause so added in an Act provides with a lot of help in determining
the meaning of a word in a statute. Whereas it becomes cumbersome to find the correct
contention of a word used in a statute, the inclusion of definition or interpretation clause becomes
helpful by providing the required context or meaning of the word so used in a statute, either once,
or several times.
 The definition clause has been classified into three kinds of definitions, with respect
to the scope and ambit and the usage of the word. They are Restrictive definitions, which are hard
and fast and are to be taken in strict sense as to what has been stated in the definition of a word,
Extensive Definition, which provides with the scope of interpretation of a meaning more than what
is required and the Exhaustive Definition, which contains both means and includes, wherein one
part may mean something while the other would include something into the definition making is
exhaustive in nature.

The other category is where there is another context required to a definition, usually
stated in the definitions as ‘unless the context otherwise requires’, wherein the definition needs to
have a different contention of the word for which there requires an interpretation in the sense that
it is applied to a specific case. But where there is no such meaning applied, usually in case where
the statutes and the Constitution are amended and the definitions of words used therein are not
amended, it renders those words completely useless as the words they cannot be applied to the
provisions since they are not in consonance with other provisions or the Constitution.
Q21. Important Judgments on Presumption of Service by Registered Post.

Presumption of certain facts:

The legal proposition in context of presumption of service by registered post can be found
under Section 114 of the Indian Evidence Act. The provision envisages the law regarding the
presumption of certain facts. It states that the Court may presume the existence of any fact which it
thinks likely to have happened, regard being had to the common course of natural events, human
conduct and public and private business, in their relation to the facts of the particular case.
In several cases, the Indian Judiciary has been confronted with the issue of presumption of
service by registered post. One of the earliest cases which recognized the concept of presumption
of service by registered post is the case of Harihar Banerjee vs. Ramshashi Roy AIR 1918 PC 102 In
this case, the Court held that there can be a presumption of receipt of a letter sent under postal
certificate in view of the provisions of Section 114(f) of the Act. Subclause (f) of Section 114
envisages that the Court may presume that the common course of business had been followed in
particular cases.

Supreme Court in the case titled "N. Paraeswaran Unni Vs. G. Kannan and Another" in
Criminal Appeal No 455 of 2006 has referred the case titled "M/S New India Sugar Mills Ltd. v.
Commissioner of Sales Tax, AIR 1963 SC 1207", and held, inter alia, that, "13. It is clear from
Section 27 of the General Clauses Act, 1897 and Section 114 of the Indian Evidence Act, 1972, that
once notice is sent by registered post by correctly addressing to the drawer of the cheque, the
service of notice is deemed to have been effected."
Meaning of Service by Post
Section 27 of General Clauses Act, 1897 provides the meaning of service by post. It
postulates that where any Act authorizes any document to be served by post, where the expression
serve" or either of the expressions "give" or "send" or any other expression in used, then, unless a
different intention appears. the service shall be deemed to be effected by properly addressing pre-
paying and posting by registered post. Hence, service by post impli es service by registered
post.

A similar view was taken by the Court in the case of M/s. Madan & Co. v. Wazir Jaivir
Chand(1989) 1 SCC 264 In this case, the Supreme Court while dealing with whether the duty of the
landlord was complete by sending of notice with reference to the presumption under Section 27 of
General Clauses Act held that once there is a proper tender of the demand notice at the correct
address then there is service of the demand notice in view of the presumption as per Section 27 of
General Clauses Act.
Presumption of service by registered post is a rebuttal presumption
Here it is pertinent to mention that presumption of service by registered post is a
permissible presumption i.e. a rebuttable presumption and not an inevitable presumption. In the
case of Mst. L.M.S. Ummu Saleema v. B.B.Gujral & Anr. AIR 1981 SC 1191, this Court dealt with the
issue of presumption of service of letter sent under postal cover, and observed that presumption
under Section 114 of the Act is a permissible and not an inevitable presumption. Neither Section 16
of the Evidence Act nor Section 114 of the Act compels the Court to draw a presumption. The
presumption may or may not be drawn. On the facts and circumstances of a case, the Court may
refuse to draw the presumption. On the other hand, the presumption may be drawn initially but on
a consideration of the evidence, the Court may hold the presumption rebutted.
Similarly, in the case of Parimal v. Veena @Bharti(2011) 3 SCC 545, the Supreme Court held
that in view of Section 114(f) of Evidence Act read with Section 27 of General Clauses Act, 1897
there is a presumption that the addressee has received the letter sent by registered post. However,
the presumption is rebuttable on a consideration of evidence of impeccable character.
Burden to prove presumption of service on the party challenging presumption
In the case of Gujarat Electricity Board & Anr. v. Atmaram Sungomal Poshani AIR 1989 SC
1433, the Supreme Court examined the issue regarding the presumption of service of letter sent by
registered post under Section 27 of General Clauses Act, and held that there is a presumption of
service of a letter sent under registered cover.... No doubt the presumption is rebuttable and it is
open to the party concerned to place evidence before the court to rebut the presumption by
showing that the address mentioned on the cover was incorrect or that the postal authorities never
tendered the registered letter To him.....The burden to rebut the presumption lies on the party
challenging the factum of service.
The provision of Section 101 of the Evidence Act provide that the burden of proof of the
facts rests on the party who substantially asserts it and not on the party who denies it. In fact,
burden of proof means that a party has to prove an allegation before he is entitled to a judgement
in his favour. Further law under Section 103 of the Act further amplifies the general rule of Section
101 that the burden of proof lies on the person who asserts the affirmative of the facts in issue.
It is clear from Section 27 of the General Clauses Act, 1897 and Section 114 of the Indian
Evidence Act. 1972, that once notice is sent by registered post by correctly addressing to the
drawer of the cheque, the Service of notice is deemed to have been effected.
Supreme Court in the case titled "N. Paraeswaran Unni Vs. G. Kannan and Another" in
Criminal Appeal No 455 of 2006 has referred the case titled "M/S New India Sugar Mills Ltd. v.
Commissioner of Sales Tax, AIR 1963 SC 1207", and held, inter alia, that, "14. It is well settled that
interpretation of a Statute should be based on the object which the intended legislation sought to
achieve. It is a recognized rule of interpretation of statutes that expressions used therein should
ordinarily be understood in a sense in which they best harmonize with the object of the statute,
and which effectuate the object of the Legislature. If an expression is susceptible of a narrow or
technical meaning, as well as a popular meaning, the Court would be justified in assuming that the
Legislature used the expression in the sense which would carry out its object and reject that which
renders the exercise of its power invalid"

When a notice is sent by registered post and is returned with postal endorsement
 Supreme Court in a case titled N. Paraeswaran Unni Vs. G. Kannan and Another in Criminal
Appeal No 455 of 2006 has referred the cases titled Jagdish Singh v. Natthu Singh, (1992) 1 SCC
647; State of M.P. v. Hiralal, (1996) 7 SCC 523 and V. Raja Kumari v. P. Subbarama Naidu, (2004) 8
SCC 774 and held, inter alia, that, "15. This Court in catena of cases has held that when a notice is
sent by registered post and is returned with postal endorsement "refused" or "not available in the
house" or "house locked" or "shop closed" or "addressee not in station", due service has to be
presumed."
Q22 Foreign Judgments
Ans

Introduction:
Foreign Judgment means the judgment of a foreign Court. Civil Procedure Code (Act V of
1908). The expression Foreign Judgment must be understood to mean 'an adjudication by a foreign
court upon the matter before it and it would be quite impracticable to hold that a foreign judgment
means a statement by a Foreign Judge of the reason for his order' [Abdul Wazid v. Vishwanathan,
AIR 1953 Mad. 261] Sec. 13 Civil Procedure Code.
In the Arbitration and Conciliation Act, 1996, 'Foreign Award has been defined as, Foreign
Award means an arbitral award on differences between persons arising out of legal relationships,
whether contractual or not, considered as commercial under the law in force in India, made on or
after the 11 th day of October, 1960
In pursuance of an agreement in writing for arbitration to which the Convention set forth in the
First Schedule applies; and
In one of such territories as the Central Government, being satisfied that reciprocal provisions have
been made may, by notification in the Official Gazette, de clare to be territories to which the Said
Government Applies.
Q 23. Presumption against retrospective operation of enactment.

Meaning:
The dictionary meaning of the word prospective with reference to statutes shows that it is concerned with or
applying the laws in future or atleast from the date of commencement of the statute. Whereas the word
retrospective when used with reference to an enactment may mean:

1. Effecting an existing contract or

2. Reopening of the past , closed and completed transactions, or

3. Affecting accrued rights and remedies, or

4. Affecting procedure.

Four facts held to be relevant

1. General scope and purview of the statute
2. The remedy sought to be applied
3. the former state of law
4. what it was the legislature contemplated
It cannot be said that all the social welfare measures intended for public good, shall be
considered to be retrospective. It is settled law as laid down in Mahendran v. State of Karnataka,
that if two interpretations are possible with respect to the question of retrospectivity, the
interpretation of the provision of prospectivity will be preferred.
PRESUMPTION AGAINST RETROSPECTIVITY:
All laws which affect substantive vested rights generally operate prospectively and there is a
presumption against their retrospectivity till there are express words giving retrospective effect or
where the language used necessarily implies that such retrospective operation is intended. Hence,
the question whether a statutory provision has retrospective effect or not depends primarily on the
language in which it is couched.
“Effect of Repeal”: Section 6 talk about it. Where any Central legislation or any regulation made
after the commencement of this Act repeals any Act made or yet to be made, unless another
purpose exists, the repeal shall not:
1. Revive anything not enforced or prevailed during the period at which repeal is effected or;
2. Affect the previous operation of any enactment so repealed or anything duly done or
suffered thereunder; or
3. Affect any right, privilege, obligation or liability acquired, accrued or incurred under any
enactment so repealed; or
4. Affect any penalty, forfeiture or punishment incurred in respect of any offence committed
against any enactment so repealed; or
5. Affect any inquiry, litigation or remedy with regard to such claim, privilege, debt or
responsibility or any inquiry, litigation or remedy may be initiated, continued or insisted.
 In State of Uttar Pradesh v. Hirendra Pal Singh, (2011), 5 SCC 305, SC held that whenever an
Act is repealed, it must be considered as if it had never existed. Object of repeal is to obliterate the
Act from statutory books, except for certain purposes as provided under Section 6 of the Act.

In Kolhapur Canesugar Works Ltd. V, Union of India, AIR 2000, SC 811, Supreme Court held that
Section 6 only applies to repeals and not to omissions and applies when the repeal is of a Central
Act or Regulation and not of a Rule

Retrospective Effect:
It is a well established principle of interpretation that no statute can be given retrospective
effect unless the statute so directs either expressly or by necessary implication. Nor can a power be
exercised retrospectively, unless the statute expressly so provided, more so where it would impair
any rights or obligations already acquired or incurred. [B. P. Sonekar v. State of U. P., 1959 A.L.J.
791.
The retrospective operation of an enactment may mean one thing and its affecting the rights of
parties another. Normally, an enactment is prospective in nature. It does not affect that which has gone, or
completed and closed up already. Ordinarily, the presumption with respect to an enactment is that, unless
there is something in it to show that it means otherwise, it deals with future contingencies, and does not
annul or affect existing rights and liabilities or vested rights, or obligations already acquired under some
provisions of law although its effect is that it does not affect an existing right as well. If an enactment
expressly provides that it should be deemed to have come into effect from a past date, it is retrospective in
nature. It then operates to affect existing rights and obligations, and is construed to take away, impair or
curtail, a vested right which had been acquired under some existing law.

If an enactment is intended to be retrospective in operation, and also in effect, the legislature must
expressly, and in clear and unequivocal language, say so, in the enactment itself. A retrospective operation is
not 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 a language which is capable of either interpretation, it ought to be construed
prospectively.

In Young v. Adams, it was observed that retrospective operation ought not to be given to a statute,
unless an intention to that effect is expressed in plain and unambiguous language. However, it does not
seem probable that the legislature should intent to extinguish by means of a retrospective enactment, rights
and interests which might already have vested.

The retrospective operation should not be favoured, unless the legislature clearly and distinctly
authorizes the doing of something which is physically inconsistent with the existence of an existing right and
a statute is not construed to have a greater retrospective operation than what its language renders it
necessary, because it may be that the retrospective operation may be partial and not full at some places in
the enactment.

Criminal Law:

Article 20 of the Indian Constitution is divided into two parts. Under the first part, no person shall be
convicted of any offence except for violation of ‘law in force’ at the time of the commission of the act
charged as an offence. A person is to be convicted for violating a law in force when the act charged is
committed. A law enacted later making an act done earlier as an offence, will not make person liable for
convicted for violating a law in force when the act charged is committed.

A law enacted later, making an act done earlier as an offence, will not make person liable for
convicted under it. This means that if an act is not an offence at the date of its commission it cannot be an
offence at the date subsequent to its commission. In Prahlad Krishna vs. State of Bombay, it has been held
that an immunity is thus provided to a person from being tried for an act under a law enacted subsequently,
which makes the law unlawful.

In Pareed Lubha Vs. Nilambaram, it has been held that if the non-payment of the Panchayat Tax was
not an offence on the day it fell due, the defaulter could not be convicted for the omission to pay under a
law passed subsequently even if it covered older dues. The protection afforded by Clause (1) is available only
against conviction or sentence for a criminal offence under ex-post fact law and not against the trial. Under
the American law the prohibition applies even in respect of trial. So the guarantee provided the American
constitution is wider than that under the Indian constitution. A trial under a procedure different from what it
was at the time of the commission of the offence or by a special court constituted after the commission of
the offence cannot ipso facto be held unconstitutional.

Facts and decision:

The only set of facts in this important case is that the I-T department sought to levy interest under
Section 234D for assessment years (AYs) 1998-99 to 2000-2001 by issuing notices under Section 148 of the
Act. The company contested the levy and the CIT (Appeals) held that interest under Section 234D could not
be charged for AYs before June 1, 2003. The department took the matter to the Tribunal. The Special Bench
of the Tribunal held that levy of interest under Section 234 can be applied only from AYs 2004-2005 onwards
and not for the earlier years.

The Bench reasoned that “there is no dispute to the proposition that a court cannot read anything
into a statutory provision which is plain and unambiguous. A statute is the edict of the legislature. The
language employed in a statute is determinative of the legislative intent and according to the first and
primary rule of construction, the intention of the legislation must be found in the words used by the
legislature itself and the function of the court is only to interpret the law and the court cannot legislate. If a
provision of law is misused and subjected to the abuse of the process of law, it is for the legislature to
amend, modify or repeal it, if deemed necessary.

“Legislative causus omissus cannot be supplied by judicial interpretative course. Thus, on the basis of
argument that legislature has brought this provision just to fill the lacuna in the law and therefore these
provisions should be construed retrospective cannot be accepted more particularly when these provisions
have been inserted on the statute with effect from June 1, 2003, and not with retrospective effect. The
legislature has specifically mentioned the date of applicability, that is, June 1, 2003, and the legislator was
not incompetent to make retrospective provision, if it was so intended. Therefore, merely on the basis of
interpretation, retrospective effect cannot be given to the provisions of Section 234D.”

Accordingly, the Special Bench held that the levy on interest under Section 234D of the Act would
apply prospectively from AY 2004-05 onwards.

Provisions and analysis

Section 234D of the Act was introduced by the Finance Act, 2003 with effect from June 1, 2003,
wherein an assessee getting a refund under the provisional assessment and liable to pay up the same on the
regular assessment is liable to return the same with interest at 18 per cent per annum from the date of the
refund to the date of the regular assessment.

The objective of this levy is to prevent assessees from enjoying free money in their hands without
interest. There is no major concern on the levy per se. The issue became controversial when the department
sought to apply the provision for past assessment years. The general principle is that provisions in a statute
would operate prospectively unless retrospective operation is expressly provided for. This principle is laid
down in Govind Das vs ITO and Sharma vs. ITO.

Important Judicial Decisions:

In K. S. Paripoornan v. State of Kerala, this Court while considering the effect of amendment in the
Land Acquisition Act in pending proceedings held thus in Para 47 thereof as: ''...In the instant case we are
concerned with the application of the provisions of Sub-sec. (1-A) of S.23 as introduced by the Amending Act
to acquisition proceedings which were pending on the date of commencement of the Amending Act. In
relation pending proceedings, the approach of the Courts in England is that the same are unaffected by the
changes in the law so far as they relate to the determination of the substantive rights and in the absence of a
clear indication of a contrary intention in an amending enactment, the substantive rights of the parties to an
action fall to be determined by the law as it existed when the fiction was commenced and this is so whether
the law is change before the hearing of the case at the first instance or while an appeal is pending"

Conclusion:
The Cardinal Principle of construction of a statute is that every statute was prima facie a prospective
“unless it is expressly or by necessary implication made to have retrospective operation”. When a procedural
law is considered it is always retroactive i.e. came into effect from past date so the question of retrospective
operation shall arise in substantive laws only. Also a criminal law shall always have retroactive operation
whereas the civil law may have retrospective or retroactive operation. So by observing the different opinions
of jurists and experts in India on retrospective and retroactive laws, a conclusion may be drawn in such a
way that only substantive civil laws can be operated retrospectively if the statute specifically prescribes it or
there exists large interest of the public as whole otherwise all statutes shall be operated retroactively.

Q24 Doctrine of Prospective Overruling

INTRODUCTION
The Doctrine of Prospective Overruling was adopted from the American legal system as an
aberration from this traditional concept of retrospectivity often referred to as the Blackstonian
view of Law, marking its first application in the famous case of I.C. Golak Nath v. State of Punjab.
Grappled with the facets of both negative and positive opinions, this Doctrine seems to have placed
itself at a prominent position in Indian jurisprudence.

Meaning of Doctrine of Prospective Overruling

The word ‘prospective’ implies that future application or operation or efficacious
implication. In layman’s terms, the terminology ‘overruling’ denotes the act of setting aside a
precedent or judicial pronouncement.
 The collective comprehension connotes that a judicial decision only has a prospective effect
i.e. it has a prescriptive authority over future cases, but will not affect the original suit. In other
words, if a dispute has been settled or resolved before a court, it will be a conclusive resolution and
will not be declared invalid by any subsequent change of law.
Example
If a principle has been laid in the case of AB v. DA and the same has been overruled in the case of
SA v. ED. Pursuant to this Doctrine of prospective overruling, the decision of the original suit i.e. AB
v. DA will not be changed, but at the same time, the decision of SA v. ED will have a prospective
operation, so that it applies to future cases

The Doctrine of ‘Prospective Overruling: Its Application In India

The Doctrine of Prospective Overruling, as noted above, is a deviation for the traditional
Blackstonian view of law, the duty of the Court was "not to pronounce a new rule but to maintain
and expound the old one". This doctrine offers foundations for an extended view of judicial
function, which primarily centers on discretion and freedom of choice, to specify the time frame
and the cases to which a particular pronouncement in a case will be applicable to. In the case of
Naryanan Nair v. State of Kerela, Mathew J. explains the thrust of the doctrine by observing that it
was not meant to supplant the traditional Blackstonian doctrine but was essentially meant to
protect the interests of the litigants when judicial overruling of a precedent entailed a change in the
law. In effect, what is contemplated through the doctrine is to lay down the scope of the
pronouncement in a particular case with regard to its applicability to future cases and disputes. And
the primary interest behind the courts actually applying this doctrine is the fact, as already
mentioned, that courts always want to do justice and may apply various criteria to reach their ends.
In this effort of theirs, there are instances when courts have themselves have invoked and laid
down effective principles which will guide them in their endeavor and the above doctrine bears
testimony to this point.
The essence of prospective overruling is that the Supreme Court lays down the
parameters within which a law laid down in a case which overrules a previous judgment has to
operate. The whole purpose is to avoid reopening of settled issues and also prevent multiplicity of
proceedings; in effect, this means that all actions prior to the declaration do not stand invalidated.
Also, as laid down in the case of Baburam v. C.C. Jacob , all the subordinate courts are bound to
apply the law to future cases only. There may also be instances where the Supreme Court may
specify the date when the declaration shall come into effect thereby not disturbing the decisions
taken before such a date. All this happens during the process of invalidating a law or overruling a
decision.

CASE LAW

The Doctrine marked its application in Indian jurisprudence for the first time in the case of I.C.
0Golak Nath v. State of Punjab in 1967. J. Subba Rao advocated the application of this Doctrine and
insisted that judicial restraints are called for, given the effect of the withdrawal of these
amendments on the social and economic affairs of our country. He discarded the objections made
to this Doctrine by referring to the elastic and wide terms used in the Indian Constitution enabling
the Court to meet the ends of justice.

Conclusion
The doctrine of ‘prospective overruling’, thus, can be considered to be a figment of legal
fiction or an aberration, keeping in mind the tradition Blackstonian doctrine. But, this aberration, as
already seen does prove fruitful and attains a value of being an indispensable factor which has to be
acted upon in certain situations to preserve the social and economic conditions in the country. One
could very well imagine the ramifications that would have arisen had Subba Rao, C.J., held the
amendments to be invalid. In such a situation, the various legislations passed under the
amendments would de-facto become invalid and this would have in turn created a furore against
such arbitrary decision-making. Instead, Justice Subba Rao has, notwithstanding the criticisms
raised against his application of the doctrine, applied the doctrine in a very effective manner taking
into account the situation at hand at that particular period of time.

So, one can say that invocation of the doctrine has been very well justified in context. And
considering that judges in India do have an inherent power of judicial review, asking them to
adhere to the traditional Blackstonian norms would be notoriously cutting into their powers. At the
same time, the application of this principle should not be left to the vagaries of judges. For
example, there was no apparent reason for Justice Jeevan Reddy to hold that his judgement in
Indra Sawhney case would be applicable only five years. This does not seem justifiable by any
strand of argument because on one hand, you are condemning the activities of the government and
on the other, by giving the judgement a futuristic effect, you are giving more levy for the
government and authorities to behave in a manner which is constitutionally not valid. Instead,
Justice Jeevan Reddy could have held that all the pending appointments would have to be
completed within six months after the date of the judgment after which the decision would come
into force. This is the point where the argument of uncertainty which is a criticism against
prospective overruling also finds root. This is because people are not aware which judgment they
are bound by and ultimately, it creates a lot of chaos and confusion.
One more aspect of prospective overruling that may be taken into consideration is the
matter of its application only in the Supreme Court. This does not seem to hold that true taking into
consideration the fact the purpose for which it is invoked. If the purpose is ultimately to avoid
chaos and uphold the rights of the parties involves and the general public as such, then the High
Court must also be empowered to invoke such a doctrine and such a decision will invariably be
subject to the scrutiny of the Supreme Court on appeal. So such application of the doctrine may
also foster the development of a pattern which may guide the application of such a doctrine.
Lastly, in conclusion, what can be said is that the doctrine of prospective overruling should
be used but the courts should be cautious and must use it sparingly. Otherwise, one may have to
contemplate a situation wherein all the criticisms stated above may be thrown back at it again, this
time with full force. But, one should commend and appreciate Justice Subba Rao’s application of
this doctrine and recognise the fact that this doctrine must be exalted inasmuch as it reduces the
uncertainty attached to the overruling of a decision.

IOS

Q9. Ejusdem Generis and Noscitur a sociis

Ans

It is a latin term which means ‘of the same kind’. According to the Oxford dictionary this principle means-
‘Denoting a principle for interpreting legal texts that assumes that, if there is a general term accompanying a
list of specific terms, then the general term is restricted to things of the same character as the specific terms.’

This definition suggests that when words follow listing of things or persons in continuation, then the word
should not be seen in its widest amplitude, rather the meaning of it should be derived in sync with the other
couple of words mentioned. To define the word correctly it is pertinent to give it a restricted meaning unless
otherwise required.

This principle will not be applicable in case the specific word does not relate to a specific genus. Hence, it is
important that a general word should not be followed by a specific word.

This principle assumes that if in any legislation a list of words is present before the generic word then this is
very clear that legislation intends to give it a restricted meaning.

In Latin Ejusdem generis means ‘of the same kind’.

The rule of ejusdem generis is applicable only when certain conditions are fulfilled, thereby restricting the
scope of the rule even further. These conditions are –

(1) the statute contains an enumeration of specific words,

(2) the subjects of enumeration constitute a category,

(3) that class or category is not exhausted by the enumeration,

(4) the general terms follow the enumeration, and

(5) there is no indication of a different legislative intent.

It is generally used in courts for deciding or classification of entities or bodies that come under a specific
definition. The interpretation of statutes is the main applications of the ejusdem generic rule. It is generally
used when ambiguity or confusion on the statutes arises. It has a major role in defining the state which is
mentioned in the article 12 of the Indian Constitution. In the article 12 of the Indian Constitution, it is
mentioned about the state legislature, parliament, and central government. A state comes under this term
and other authorities in the article 12, there will be performing the functions similar to the functions of the
legislature and government or sovereign functions.
In the case of Kavalappara Kottarathil Kochuni v. State of Madras,[4] the applicability of this rule has been
stated. Here, it was said that the rule is only to be applied when there are general words that follow other
words, where these other words belong to a particular category all those words are similar. It has also been
held in this case that the rule “… is not an inviolable rule of law, but is only permissible inference in the absence
of an indication to the contrary.”

An example for the same would be that of the placement of a tomato in a grocery list, for example. If the list
reads, “tomato, potato, onion and garlic,” it is an indication of tomato being treated as a vegetable; but when
the same tomato is read along with “papaya, apples, bananas, and melon,” it makes it clear that it is to be
taken as a fruit.

In Jiyajirao Cotton Mills Ltd v. Madhya Pradesh Electricity Board (1) the text- ‘any other relevant factors’ was
interpreted. Section 49(3) of the Electricity Supply Act, 1948 reads as follows- “Nothing in the foregoing
provisions of this section shall derogate from the power of the Board, if it considers it necessary or expedient
to fix different tariffs for the supply of electricity to any person not being a licensee, having regard to the
geographical position of any area, the nature of the supply and purpose for which supply is required and any
other relevant factors.” The Electricity Board is empowered under the aforementioned section to fix deposit
tariffs relating to the supply of electricity. The Supreme Court denied from applying the principle of ejusdem
generis because the impugned text ‘any other relevant factors’ didn’t belong to any specific genus/category.

Rule of noscitur a socii

According to the Merriam Webster Dictionary, noscitur a socii refers to “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.”

Every word has a place in every sentence, which means that every word has two understandings with it – one,
denotation, and two, connotation. Denotation refers to the actual meaning of the word, and connotation is
the meaning of that word according to the placement of the word in that particular sentence.

Both these understandings are used in order to apply the rule of noscitur a socii for the purposes of
interpretation. The rule of noscitur a socii is considered to be a subsidiary rule of interpretation. The term has
Latin origins, with noscitur meaning knowing, a meaning with, and socii meaning association. Simply put, it
refers to ‘knowing with association.’ This phrase is also part of a longer Latin maxim “noscitur ex socio qui non
cogiiositur ex se” which is to be understood as “he who cannot be known from himself may be known from
his associates.”

This principle suggests that an unclear word should be interpreted in the same vein as the immediate words
surrounding it. The meaning of a doubtful word should be determined by associating it with the words
immediate. For applying this rule, the prerequisite is that there should be a word which is susceptible to bear
multiple meanings. In other words, it can be stated that the word can be explained by judging the company it
holds.

This rule is explained in the Maxwell on the interpretation of statutes in the 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 color 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.

In Pardeep Aggarbatti v. The State Of Punjab (2) the Supreme Court thoroughly interpreted the word
‘perfumery’. The Court referred to the Punjab Sales Tax Act and held that ‘perfumery’ would include toilet
goods and cosmetics like sprays but not ‘dhoop’ or ‘agarbatti’. The reasoning behind this proposition was that
the Schedule ‘A’ Entry 16 of the Act includes ‘cosmetics, perfumery & toilet goods excluding toothpaste, tooth
powder kumkum & soap.’

Further, this principle was also used in the case of Alamgir v. State of Bihar (3) while interpreting the word
‘detained’ as used in Section 498 of the Indian Penal Code. In this case, the married woman abandoned her
husband and started to live with the appellant. The Section provides that ‘whoever takes or entices away any
women who is and who he knows or has reason to believe to be the wife of any other man, from that man, or
from any person having the care of her on behalf of that man, with the intent that she may have illicit
intercourse with any such person, or conceals or detains with that intent any such woman, shall be punished.’
The word detained was interpreted by referring to the expression taken, entices and conceals without the
husband’s consent and not in the literal sense. Therefore, the consent of the woman in this case was
meaningless.

Ejusdem generis is used for interpreting loosely written statutes legislation and Noscitur a sociis is used for
interpreting questionable words in statutes.

The rule of noscitur a socii has an offshoot rule referred to as the rule of ejusdem generis. It is considered that
the rule of noscitur a socii is broader in understanding as compared to the rule of ejusdem generis.

Q12. Doctrine of Repugnancy

Ans

The doctrine of Repugnancy essentially deals with the conflict between the laws of Centre and State. India
adopts a federal structure of governance; therefore the extent of legislative powers is distributed between
the Centre and the States.

According to Black’s Law Dictionary, Repugnancy could be defined as an inconsistency or contradiction

between two or more parts of a legal instrument (such as a statute or a contract)

As per Article 245, Parliament may make laws for whole, or any part of India and the legislature of a State may
make laws for whole or any part of the State and Article 246 clearly mentions the extent of legislative powers
of the Parliament and State governments. Schedule VII of the Constitution has three lists viz: List I (Union List),
List II (State List) and List III (concurrent list).

The Centre has the exclusive power to legislate over the topics mentioned in List I and the State governments
have the exclusive authority to legislate on the subject-matters included in List II.

The Concurrent list included those items which can be legislated upon by both the Centre and the States. Thus,
there is a possibility of occurrence of conflict during making legislation on the subjects listed in the concurrent
list.

The concept of Doctrine of Repugnancy is included in the Article 254 of the Constitution of the constitution.
According to this Article any law made by the State legislature on subject-matter enlisted in List III would be
valid only in the absence of any contrary law passed by the Centre government. Article 254 was included as a
mechanism to resolve this repugnancy between the powers of the Parliament and State legislatures.

The Doctrine of Repugnancy deals with the distribution of powers between the Central and State legislatures.
This doctrine reflects the quasi-federal structure of the Constitution. It has clearly laid down the powers of the
Parliament and State legislature to avoid inconsistencies and conflicts.

Salient Features of Doctrine of Repugnancy

 The key part of having repugnancy laws is to maintain a strategic distance from two laws on a similar topic and
accomplish uniform law all through the country which is one reason behind comprising the Indian Constitution.

Such sort of uniformity is fundamental to have a mature legitimate framework and this can be taken forward
just by a power who has uniform purview everywhere throughout the country, which is the parliament in
India. The State has local jurisdiction just on specific issues and this is why they can’t guarantee uniformity in
the framework. The Doctrine of Repugnancy has the following salient features -:

I. Direct Conflict-

This doctrine is present in the constitution to prevent any direct conflict which might take place between the
State and the Centre in formulation of laws concerning their respective view, for example one law says “DO”
and the other says “DON’T”.

II. Occupied Filed –

This doctrine was adopted by our constitution maker so that they can distinguish clearly between the
legislative powers of both the Centre and the State. In Schedule VII of The Indian Constitution 3 lists were
formulated and two lists among these three are related to both Centre and State, whereas the 3rd list is related
to matters on which both Centre and State have power to make laws of their own.

III. Parliament Shall Prevail-

It is under Article 254(1) that the Constitution gives that on the off chance that both the Parliament and the
State make a law upon an issue in the Concurrent List and the laws are irreconcilable, at that point the law
made by the Parliament will be legitimate and the law made by the State will be repulsive to the degree of its
repugnancy with the Central law.

In the odd case under Article 254(2) the State law can prevail over the Central law if the State can get an assent
of legitimacy from the President of India.

M. Karunanidhi v. Union of India AIR 1979 SC 898

This judgment is widely regarded as the most authoritative judgment given by the courts on the use of the
doctrine. The judgment said that if there is a direct conflict between legislatures made on a matter listed in
the concurrent list then the central law will prevail over the State law. Where however a law has been passed
by the State legislature related to a matter Stated in The Concurrent list then the State legislature shall prevail
over Centre’s legislature in only that State if the State government takes proper assent from the President of
India under Article 254(2). Where a law passed by the State Legislature while being considerably inside the
extent of the sections in the State List endless supply of the Entries in the Central List, the defend-ability of
the law might be maintained by conjuring the principle of pith and substance if on an investigation of the
arrangements of the Act it gives the idea that all around, the law falls inside the four corners of the State List
and entrenchment, if any, is purely incidental or inconsequential.

Bharat Hydro Power Corporation. Ltd. v. State of Assam

In this case, the Apex court of India gave the order that there should be every effort made to harmonize both
the legislations of Centre and State which are in direct conflict with each other. If both the laws made are not
relating to the same list and there will be no repugnancy
Q13. Mimansa rule of interpretation?
Ans

in our country we had developed from very early times a scientific system of interpretation known
as the Mimansa Principles1 and these were regularly followed by our renowned jurists like
Vijnaneshwara (author of Mitakshara), Jimutvahana (author of Dayabhag), Nanda Pandit (author of
Dattak Mimansa) etc. Whenever there was any conflict between the Smritis e.g. Manusmriti and
Yagnavalkya Smriti, or ambiguity in a Shruti or Smriti, the Mimansa Principles were applied. Most of
these principles are rational and scientific, and in some respects superior to the principles obtaining
in Western Law.
ule for interpretation under Mimangsa

The Rules of Interpretation under Mimangsa can be classified into following five categories:
Primary Rules of Interpretation
The primary rules of interpretation is classified into following categories:
i. Sarthakya

It states that every word that is stated in the scriptures consists of meaning and there is no world
which is used there without meaning.
ii. Laghav
This rule indicates that in the case a single rule is generated from a particular text or word, other
interpretation giving different interpretation should not be resolved.

iii. Arthekatwo
This rule signifies that the single word or the sentence used must be given single meaning and
should not be given different meanings.
iv. Gunapradhan

It states that whenever a word denoting the secondary thought stands contrary to the primary
thought, the word should either be corrected as per the primary thought or should be left.
v. Samanjasya
It states that the possible coalition between the word and sentence of the particular text should be
used as per the spirit of the text itself. The contrary coalition of the words and sentence should not
be used.
vi. Bikalpa
It states that whenever there arises controversy between two texts exists, any one text should be
adopted as an alternative.
Applicability of Mimangsa Rules of Interpretation
The application of Mimangsa Rules of Interpretation although is primarily focused with the
interpretation of many Hindu Scriptures like Vedas, Smirities, Shrutis etc, its application in modern
times also cannot be ignored.
There are two reasons for the application of Mimansa principles to law :
(1) The Mimansa Rules deal with the Brahmana portions of the shruti, i.e., the portion which laid
down injunctions, and the law, too, being largely in the form of injunctions was attracted to them;

(2) Mimansa is a practical subject, and the law, too, being practical was inclined to incorporate
them. The great commentators like Vijnaneshwara (author of the Mitakshara), Jimutvahana (author
of the Dayabhaga), Nanda Pandit (author of Dattak Mimansa), Vachaspati, Neelkanth, etc., were all
profound scholars of Mimansa, and they regularly used the Mimansa Principles when confronted
with any difficulty regarding interpretation of the Smrities (which contained the law in those times).
Talking about the application of Mimangsa Rules of Interpretation in the interpretation of the
statutes and laws of Nepal, it is not found so much used. But in the context of India, the use of
Mimangsa Rules of Interpretation has been used for exploring the meaning of the legal provisions.
The Supreme Court applied one of these principle after quoting a ‘Shloka’. In this regard, the
Supreme Court of India in the case of UP Bhoodan Yagna Samiti, UP V. Braj Kishore , observed:
“In this country, we have a heritage of rich literature, it is interesting to note that literature of
interpretation also is very well known. The principless of interpretation have been enunciated in
various Shlokas which have been known for hundreds of years.”

Sir John Edge, the then Chief Justice of Allahabad High Court, has referred to the Mimamsa
principle in Beni Prasad v Hardai Bibi.

Similarly, Gunapradhan Axiom of the Mimamsa principle was applied for interpretation of section
419 of UP Sales Tax Act in Amit Plastic Industry, Ghaziabad v Divisional Level Committee, Meerut .

In the case of Tribhuwan Mishra v Distt. Inspector of Schools, Azamgarh ‘Samajasya Axiom’ was
applied.
Supreme Court has recognized the value of the Mimansa Rules of Interpretation in the case of M/s
Ispat Industries Ltd vs Commissioner of Customs , M/s Craft Interiors Pvt. Ltd vs. Commissioner of
Central Excise.
Conclusion

It can be shown how Mimansa principles can be a powerful tool in the hands of the Judge in molding
the law to make it more rational, equitable and democratic. Use of Mimansa Principles gives a
flexibility which Western principles of interpretation totally lack. Knowledge of the great
achievements of our ancestors will inspire us and give us the confidence and strength to solve our
present problems.
If the aforementioned rules under Mimangsa Principles of Interpretation are analyzed, the Laghav
and Shruti Principle signifies what the Literal Rule of Interpretation signifies.
Again, if the Linga Principle under Mimangsa is concerned, it is similar to what Section 12 of Nepal
Kanoon Byakhya Sambandhi Ain 2010.
The Vakya Rule of Interpretation is quite similar to the Mischief Rule of Interpretation.

Similarly, the General Principles Regarding the Application of Texts has been able to segregate the
rules that are mandatory in nature and those which are not mandatory in nature.
Knowledge of the Mimansa principles enables one to infuse equity and the democratic spirit into the
law in a manner unknown to western techniques of interpretation.

"An example of this is the decision in Mahavir Prasad Dwivedi v. State of U.P. In that case the facts
were that the petitioner had been elected Chairman of a Town Area in U.P. He was removed by the
Collector after giving him a hearing, and the Collector's order was confirmed by the State
Government. But the State Government had not given an opportunity of hearing to the petitioner.
The question before the court was whether the State Government, too, had to give an opportunity
of hearing before it confirmed the order of the Collector. After a great deal of consideration the
present writer answered it in the affirmative, utilizing the Anusunga principle of Mimansa."
The use of Mimangsa Rules of Interpretation is not so far been found implemented in Nepal. There
is also an ongoing debate about whether or not these rules of Mimamsa be incorporated in the
legislative form. Some say that these rules cannot be incorporated in the legislative form. It is
because, according to them, the rules present in the Mimangsa is obviously the rules of extrinsic aid
and if rules of extrinsic aid and construction are codified then it may be that some radical sources are
kept out of purview of interpretation unknowingly. Besides, Mimangsa gives its much priority to
Hindu Religion. In the case if the Economics stand contrary to the Dharmasasthras, Mimangsa rules
prefers Dharmasasthras to Economics. This might look contemporary to be used efficiently in the
Hindu Laws in particular but looks conservative if used in a general sense.
Mimangsa principles of interpretation gave the rules of exegesis which though primarily intended as
aids for the interpretation of rules contained in the Vedas and other Dharmasasthras relating to
ceremonial observances and sacrifices, were applied, though not with uniformly, in construction of
texts of municipal law as well. Rules for interpretation in the form of a scientific system were
developed since very early times known as Mimamsa Principles of Interpretation. These principles
were regularly used by the renowned jurists like Vijnaneshwara (author of Mitakshra), Jimutvahana
(author of Dayabagh), Nanda Pandit (author of Dattak Mimamsa), etc. Whenever there was any
conflict between two Smrities, eg., Manusmriti and Yagnavlkya Smriti, or ambiguity in a Shruti or
Smriti, the Mimamsa Principles were utilized. These Mimamsa rules were laid down by Jaimini in his
Sutras written abound 500 B.C. No doubt, these principles of interpretation were initially laid down
for interpreting religious texts pertaining to ‘Yagya’ (sacrifice), but gradually the same principles came
to be used for interpreting legal texts also, particularly since in the Smrities the religious texts and
legal texts are mixed up in the same treatises.
From the various court decisions given by the judiciary of India in different context, it is clear that the
Mimangsa Principles of Interpretation are still suitable at present context as it also contains a scientific basis
for the interpretation. If the Mimangsa rules of Interpretation are also used along with other rules of
interpretations like Maxwell’s or Craies’, the legal system can find it easy in the interpretation of statutes
because rich and scientific methods of interpretation are also prevalent in Mimangsa which can be effective
aid for interpretation of statutes in mostly India and Nepal where there is the larger influence of Hindu
Religion.

Q14. Concept of presumption of constitutionality? / Presumption in IOS?

Ans
In the interpretation of statutes, certain so-called presumptions exist, which are not truly concerned
with evidence at all, but are cannons of interpretation. To "presume" means to suppose that
something is probably true. Thus, presumption means an act of presuming, assuming or imagining
something to be true. The legislature is presumed to use appropriate words to manifest its intention.
In G. Vasu v. Syed Yaseen Saifuddin Quadri(1987) it was held that Presumption may be looked on as
the bats of law, flitting in the sunlight but disappearing in the sunshine of fact.

The term ‘presumption of constitutionality’ is a legal principle that is used by courts during statutory
interpretation — the process by which courts interpret and apply a law passed by the legislature,
such as Parliament.
Unlike most presumptions, the presumption of constitutionality is not a rule of evidence. Normally,
presumptions are evidentiary rules that require certain facts to be presumed when other facts have
been proven. Such presumptions shift the burden of producing evidence to the party seeking to rebut
them.
According to what the Court calls the 'presumption of constitutionality," legislation will be upheld if
any "rational basis' for its passage can be imagined, unless it violates a "fundamental" right-and
liberty has not been deemed by the Court to be a fundamental right.
For instance, the common-law presumption of the legitimacy of a child born during wedlock, which
may be rebutted only by clear and convincing evidence, effectively shifts the burden of persuasion
to the opposing party. The presumption of constitutionality, by contrast, does not deal with factual
proof, because constitutionality is a question of law, not of fact. Nor is it truly a rule of construction,
because a different rule dictates that "'where constitutional questions are raised, [a court] will
liberally construe a statute to save it from constitutional infirmities."' Rather, it is a method of
allocating and heightening the burden of legal persuasion, requiring the party challenging the statute
to make a legal argument so convincing that unconstitutionality is shown "beyond a reasonable
doubt."
Presumption of Constitutionality Constitutionality is the state of being constitutional Law is judged
for its constitutionality on the generality of its provisions and not by the freaks and exceptions it
martyrs. Legislature is presumed to have inserted every part of the statute for purpose.

There is always a presumption of constitutionality in favour of a statute and the burden is upon him
who attacks it to show that there has been a clear transgression of the constitutional principles. Since
the rule-making authority is presumed to enact a law which does not contravene the constitutional
provisions, the court ought not to interpret the statutory provisions in such a manner as would
involve its unconstitutionality.
The presumption of constitutionality is indeed so strong that in order to sustain it, the court may take
into consideration, matters of common knowledge, matters of common report, the history of the
time and may assume every state of facts which can be conceived existing at the time of legislation.
Interpretation creating unjust and discriminatory situation should be avoided. Though presumption
is that, the Act is constitutional and that the legislature understands and appreciates needs of the
people, but when the Act is ex facie discriminatory and arbitrary, such presumption cannot stand.
The burden of proof lies on him who challenges the vires. If a provision can be construed in two
senses, one making the provision con institutional and the other unconstitutional, the court would
always lean in favour of the former construction.
A Bench of Justices G B Pattanaik and M Srinivasan in the 1998 case ‘K Anjaiah vs K. Chandraiah’,
observed: “It is a cardinal principle of construction that the Statute and the Rule or the Regulation
must be held to be constitutionally valid unless and until it is established they violate any specific
provision of the Constitution. Further it is the duty of the Court to harmoniously construe different
provisions of any Act or Rule or Regulation, if possible, and to sustain the same rather than striking
down the provisions out right.
Importance of presumption of constitutionality

This doctrine of presumption of constitutionality of statute is of seminal importance in question of

challenge to the vires of the state for the following reasons:
(a) Deference to the acts of coordinate branches of government is both appropriate and necessary
to the proper functioning of the system established by the constitution. While the fundamental
principle of judicial review dictates that the judiciary must have the last word in constitutional
matters, the other branches consider the matter first, and their conclusions deserve deference.
(b) The presumption of constitutionality is grounded in a realistic appreciation of the limits of judicial
power. As Hamilton observed in Federalist No. 78, the judiciary has no control over the government's
fiscal powers or its administrative machinery-it has only the respect its judgment's command. But if
the reasoning behind the court's constitutional judgments is not trenchantly and lucidly explained,
that respect is dissipated. Using the strong presumption of constitutionality as a rule of decision, by
contrast, allows the Court to forcefully state its doubts about an act's constitutionality without
overturning it.

(c) Strict adherence to the presumption of constitutionality helps minimize even the appearance that
the judiciary is making policy-based decisions. Although the court routinely disclaims any role in
judging the wisdom of legislation, the disclaimer rings hollow when three members of the bench
accuse the majority of usurping legislative power. And when the court's opinion does not articulate
a compelling basis for overruling a prior constitutional decision, the obvious inference is that the
change of heart resulted from a change in judges.
(d) Lasting social change must be based on consensus, not mandate, and the branch of government
entrusted with achieving consensus is the legislature.
Presumption against exceeding constitutional powers

There are three lists in the Constitution:

List I (Union List): On matters contained in this list, Parliament has exclusive powers of legislation.
List I 1 (State List): The State Legislature has exclusive powers of legislation on matters contained in
this list.

List III (Concurrent List): On matters contained in this list, Parliament and State Legislatures, both
have power to make laws. Residuary power of legislation rests with Parliament, under, and by virtue
of, Article 246(6) and Entry 97 of List I.
Parliament has exclusive power to make laws with respect to any of the matters in List I (Union List),
while the State Legislatures have exclusive power to make laws with respect to matters in List II (State
List).
Regarding List III (Concurrent List), both, Parliament and the State Legislatures, have power to make
laws.
There is a presumption of constitutionality of the rule or the legislation, unless ex facie it violates the
fundamental rights. Thus, there is a presumption that the legislature does not exceed its jurisdiction
and the burden of establishing that the Act is not within the competence of the legislature, or that it
has transgressed some constitutional mandates, such as those regarding fundamental rights, is
always on the person who challenges the vires.

In the 1992 Supreme Court case ‘ML Kamra v New India Assurance’, Justice K Ramaswamy said: “The
court ought not to interpret the statutory provisions, unless compelled by their language, in such a
manner as would involve its unconstitutionality, since the legislature of the rule making authority is
presumed to enact a law which does not contravene or violate the constitutional provisions.
Therefore, there is a presumption in favour of constitutionality of a legislation or statutory rule unless
ex facie it violates the fundamental rights guaranteed under Part III of the Constitution. If the
provisions of a law or the rule is construed in such a way as would make it consistent with the
Constitution and another interpretation would render the provision or the rule unconstitutional, the
Court would lean in favour of the former construction.
The Doctrine of Presumption of Constitutionality of Legislations is not one of infinite application, it
has recognised limitation. Courts in India has consistently followed a policy of not putting an
unnatural and forced meaning on the words that have been used by the legislature in the search for
an interpretation which would save the statutory provisions. They are not free to stretch or pervert
the language of the enactment in the interests of any legal or Constitutional theory.
The Court observed that while good faith and knowledge of the existing conditions on the part of a
legislature are to be presumed, if there is nothing on the face of law or the surrounding circumstances
brought to the notice of the court on which the classification may be reasonably be regarded as
based, the presumption of constitutionality cannot be carried to the extent of always holding that
there must be some undisclosed and unknown reasons for subjecting certain individuals or
corporations to hostile or discriminatory legislation.

Q15. Doctrine of Eclipse

Ans
The Judiciary is the guardian of the rights provided for in the Constitution of India. It is the job of
the judiciary to restrain the actions of the Legislature and the Executive where they are infringing
upon these rights. When the Constitution was adopted on January 26, 1950, with it came, the
fundamental rights that are guaranteed to the citizens.
The Doctrine of Eclipse says that any law inconsistent with Fundamental Rights is not invalid. It is
not dead totally but overshadowed by the fundamental right. The inconsistency (conflict) can be
removed by constitutional amendment to the relevant fundamental right so that eclipse vanishes
and the entire law becomes valid.
In other words till the time a law violates a fundamental right provided by the Indian Constitution, it
is dormant and inoperative. But if such fundamental right is amended and thereby, the law no more
violates, then in such a situation the law becomes alive and operative.
Such eclipsed laws exist for all post transactions and for the enforcement of the rights acquired and
liabilities incurred before the commencement of the Constitution. It is only against the citizens that
they remain in a dormant or moribund condition but they remain in operation as against non-
citizens who are not entitled to fundamental rights.
Doctrine of eclipse is contained in Article 13(1) of the Indian Constitution. The doctrine of eclipse
does not apply to post-constitutional laws.
Salient Features of Doctrine of Eclipse

1. Only Applicable to pre-constitutional law

The doctrine of eclipse can be applied where the case is concerning a pre-constitutional law/s. If
such a law is infringing the aggrieved party’s Fundamental Right, then the party can rightly invoke
this doctrine. But if there is an amendment in the Fundamental right itself, then the law in question
may continue to be applicable or enforceable. This being said, the doctrine is not available for Post
Constitutional Laws. This is because a post-constitutional law that is infringing Fundamental Rights
would be deemed to have been void ab initio.
2. Applicability to Non-Citizens
It can be said that the doctrine would not be available to non-citizens in cases where they do not
possess the Fundamental Right in question.
3. Violation of Fundamental Rights

The doctrine of eclipse can only be invoked in case of violation of Fundamental Rights and not any
other rights. Hence, only when the pre-constitutional law is violating Fundamental rights, the
doctrine of eclipse would be invoked.
4. Pre Constitutional Law becomes dormant, not dead

It is noteworthy that the pre-constitutional law only becomes dormant or inoperative. It does not
cease to become void or is scrapped out completely. In fact, once the infirmity in such a law is
removed by way of amendment, the law continues to be enforceable.
In Bhikhaji v. State of M.P., AIR 1955 S.C. 781 case, the provisions of C.P. and Berar Motor Vehicles
(Amendment) Act 1948 authorized the State Government to take up the entire motor transport
business in the Province to the exclusion of motor transport operators. This provision though valid
when enacted, but became void on the commencement of the Constitution in 1950 as they violated
Article 19(1)(g) of the Constitution.
However, in 1951 Clause (6) of Article 19 was amended by the Constitution (1st Amendment Act) so
as to authorize the Government to monopolize any business. The Supreme Court held that the
effect of the amendment was to remove the shadow and to make the impugned Act free from
blemish or infirmity. It became enforceable against citizens as well as non-citizens after the
constitutional impediment was removed. This law was eclipsed for the time being by the
fundamental rights. As soon as the eclipse is removed, the law begins to operate from the date of
such removal. Effect of eclipsing is only against the citizens that they remain in a dormant or
moribund condition but they remain in operation as against non-citizens who are not entitled to
fundamental rights.

In Keshava Madhava Menon v. State of Bombay, 1951 AIR 128, case the petitioner was prosecuted
under a press law for publishing a pamphlet without permission. While the prosecution was on, the
Constitution commenced and he challenged the act as unconstitutional. Issues arose (a) whether
sections 15(1) And 18(1) read with the definitions contained in sections 2(6) and 2(10) of the Indian
Press (Emergency Powers) Act, 1931, were inconsistent with article 19(1)(a)read with clause (2) of
that article?, and (b) assuming that they were inconsistent, whether the proceedings commenced
under section 18(1) of that Act before the commencement of the Constitution could nevertheless
be proceeded with?
The court held that since constitutional rights came from date of commencement of Constitution
the question of the inconsistency of the existing laws with those rights must necessarily arise on
and from the date those rights came into being. The law became void not in toto or for all purposes
or for all times or for all persons but only “to the extent of such inconsistency”, that is to say to the
extent it became inconsistent with the provisions of Part III which conferred the fundamental rights
on the citizens.
In Deep Chand v. State of Uttar Pradesh, 1959 AIR SC 648, case, the Court held that a post-
Constitution law is void from its inception but that a pre-Constitution law having been validly
enacted would continue in force so far as non-citizens are concerned after the Constitution came
into force. This is so because prior to commencement of constitution legislature had the
competence to pass such act but after the commencement of the Constitution, the legislature does
not has the competence to pass.
In Ambica Mills Ltd. v. State Of Gujarat, (1964) 0 GLR 446 case, the Court held that if a post-
constitutional statute is void because it infringes rights of a citizen then that doesn’t mean it is void
for non-citizens as well as the law is limited to the void of contravention.
In Shankri Prasad v. Union of India, AIR 1951 SC 455 case, The constitutional validity of first
amendment (1951), which curtailed the right to property, was challenged. The Court held that the
power to amend the Constitution under Article 368 also included the power to amend fundamental
rights and that the word “law” in Article 13 (8) includes only an ordinary law made in exercise of the
legislative powers and does not include Constitutional amendment which is made in exercise of
constituent power. Therefore, a Constitutional amendment will be valid even if it abridges or takes
any of the fundamental rights.

Doctrine of Eclipse And Article 368

The landmark case of I. C. Golaknath v. State of Punjab, where the petitioner contended that his
rights laid down in Article 19(f) [which is now repealed], Article 19(g) and Article 14 were being
violated. This case also sparked a debate on Article 368. In the judgement, the court curtailing the
power of the Parliament held that Fundamental Rights cannot be amended. Hence, in a way Article
368 got eclipsed. But this judgment was overturned in the landmark judgement of Kesavananda
Bharti v. Union of India[vii]. In this judgement, it was decided that the Parliament could amend
fundamental rights as given in Part III of the Indian Constitution but can only do so without altering
the basic structure of the Constitution. Hence removing the earlier eclipse that was shadowed over
Article 368.
Application of Doctrine of Eclipse to Section 309 of IPC
In Rathinam v. Union of India,1994 AIR SC 1844, case, the petitioner had filed petitions challenging
the constitutional validity of Section 309 of the Indian Penal Code. Section 309 punishes anyone who
attempts to commit suicide with simple imprisonment for up to one year. The central question that
was addressed and answered, though inadequately, was whether the offence of attempt to commit
suicide under Section 309 IPC should be retained or abolished. The Supreme Court drew a parallel
between the other fundamental rights – just as the right to freedom of speech under Article 19 gives
the right to speak but also includes the right to not speak, the right to live under Article 21 includes
the right to not live. Thus, Section 309 was held to be unconstitutional. The Court opted for its
abolition and Section 309 is no more part of the IPC.
However, in the case of Gian Kaur v. State of Punjab, the judgment in P. Rathinam’s case was
reversed the validity of Section 309 was restored. Hence, the character of eclipse shadowed on
Section 309 was removed.
Conclusion
The Doctrine of Eclipse is one of the fairly subtle principles of the rule of law that has helped the
pre-constitutional laws from being wiped out altogether. It is imperative to mention here that the
applicability of this doctrine to post-constitutional laws is still somewhat of a grey area. However,
this doctrine has been effective in harmonizing the pre-constitutional and post-constitutional
positions with respect to various laws, such harmonization has ensured the triumph of
constitutionalism in every sense of the word.

Q16. Directory and mandatory provisions of Interpretations

Ans
The classification of statutes as mandatory and directory is useful in analyzing and solving the problem of
what effect should be given to their directions. But it must be kept in mind in what sense the terms are used.
There is a well-known distinction between a case where the directions of the legislature are imperative and a
case where they are directory.

Mandatory Enactments or Statutes means such Statutes whose provisions are required to be followed as
they are. Their performance can neither be avoided nor can be construed. They cannot be ignored also.

Directory Enactments means such enactments which or whose provisions are not required to be followed as
they are. Their performance or non-performance depends upon discretion. On nonperformance of such
enactments, no sanction could be imposed.

Performances of Mandatory enactments are a legal binding whereas the performance of directory
enactments is voluntary, optional, or discretion.

It is the duty of courts of justice to try to get at the real intention of the Legislature by carefully attending to
the whole scope of the statute to be considered. The Supreme Court of India has pointed out on many
occasions that the question as to whether a statute is mandatory or directory depends upon the intent of
the Legislature and not upon the language in which the intent is clothed.

Hari Mshnu Kanaath v/s Ahmed Ishaq (1955 S.C.R) the meaning of Mandatory and Directory Enactments was
clarified and it was said that it is compulsory to strictly and literally perform Mandatory enactments whereas
the performance of Directory Enactments is voluntary and discretionary.

Non-performance of Mandatory Enactments shall be penalized non-performance of directory Enactments

cannot be penalized.

The Supreme Court of India has been stressing time and again that the question whether statute is
mandatory or directory is not capable of generalization and that in each case the court should try and get at
the real intention of the legislature by analyzing the entire provisions of the enactment and the scheme
underlying it.

Jagannath v/s Jaswant Singh (AIR 1954 S.C. 210) – Both types of enactments are defined, while holding that
those enactments which are to be followed compulsorily are Mandatory Enactments. Those enactments
have the provision of sanction on nonperformance.

A provision in a statute is mandatory if the omission to follow it renders the proceeding to which it relates
illegal and void, while a provision is directory if its observance is not necessary to the validity of the
proceeding, and a statute may be mandatory in some respects and directory in others.
Punjab Co-operative Bank Ltd. Amritsar v/s Commissioner of Income Tax, Lahore (A I R 1940 P.C. 230) :Privy
Council held that Mandatory enactments are capable of being strictly followed while Directory enactments
could be sufficient to Perform summarily.

Vijay Kumar Vishwash v/s Navjug Large Size Cooperative Agricultural Credit Society Ltd. (A. I R 1998 Calcutta
216) Calcutta High Court said about Mandatory and Directory Enactments that a definite time is fixed for the
performance of the statute, it shall be Directory and not mandatory

Determination of Mandatory or Statutory Provision

Its determination depends upon two points

(a) Language of Statute or Enactment: and

(b) Intention of law

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

Nasiruddin v/s Sitaram Agrawal (A.l R 2003 S C. 1543) supreme Court also decided that the Mandatory or
Directory Nature of any Statute could be determined by two points-—the language of the statute and the
intention of the legislature.

In Sharif-ud Din v Abdul Gani Lone 8 , the Supreme Court very pertinently pointed out the difference
between a mandatory and a directory rule. It was observed by the Court that the fact that the statute uses
the word shall while laying down a duty is not conclusive on the question whether it is a mandatory or a
directory provision. The Court has to ascertain the object which the provision of law in question is to
subserve and its design and the context in which it is enacted. If the object of the law will be defeated by
non-compliance with it , it has to be regarded as mandatory. But when a provision of law related to the
performance of any public duty and the invalidation of any act done in disregard of that provision causes
serious prejudice to those for whose benefit it is enacted and at the same time who have no control over the
performance of the duty, such provision should be treated as directory.

In respect to the performance of statute following words are used:

1. shall:
2. may:
3. must:
4. It must be lawful. and
5. As he deems fit, etc.

These words should be understood in their natural sense while construing. Also, the intention of the
legislature should be kept in mind.

1. The use of ‘Shall’

When any statute uses ‘Shall’ then it shall be construed firstly as Mandatory provision.

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

This is not an absolute rule.

Shariffuddin v/s Abdul Gani (A.I.R. 1980 S.C. 303) : Supreme Court said that while ‘interpreting the word
‘Shall’, the intention of the legislature should be considered and to know the intention of legislature,
Content, imagination, etc. of statutes should be considered.

2. The use of ‘May’

The word ‘May’ represent optional or discretionary acts or ifs provision. In other words. It could be said that.
The word ‘May’ used in statute represents the discretionary powers of performance of that statute or its
provision.

But, if liability has been imposed along with the discretion of public authority in a statute, the word ‘May’ be
construed as ‘shall’ or ‘must’.

Similarly, if any provision contains both ‘Shall’ and ‘May’, then these words should be construed as
Mandatory and Directory respectively. But this is also not an absolute rule.

It is well settled that the use of word ‘may’ in a statutory provision would not by itself show that the
provision is directory in nature. In some cases the legislature may use the word ‘may’ as a matter of pure
conventional courtesy and yet intent a mandatory force. In order, therefore, to interpret the legal import of
the word ‘may’. The court has to consider various factors, namely the object and the scheme of the Act, the
context and the background against which the words have been used, the purpose and the advantages
sought to be achieved by the use of this word, and the like.

It is equally well-settled that where the word ‘may’ involves a discretion coupled with an obligation or where
it confers a positive benefit to a general class of subjects in a utility Act, or where the court advances a
remedy and suppresses the mischief, or where giving the words a directory significance would defeat the
very object of the Act, the word ‘may’ should be interpreted to convey a mandatory force.

It was said that in such matters, words should be construed in accordance with the intention of the
legislature even though it may be in a different form.

3. The use of ‘Must’

The word ‘Must’ represents compulsorily as mandatory. Such words should be construed as to be performed
compulsorily. There is no place for Discretion.

4. ‘It must be Lawful’

The phrase ‘It must be Lawful’ represents duty. It includes both duties and powers. It provides powers to
perform and function and simultaneously also imposes duty with it. Such provisions are required to be
performed

Lord Blackburn says that the words ‘it shall be lawful’ are not ambiguous. This is a phrase that provides
power and jurisdiction.

5. ‘As he deems fit’

The Expression ‘As he deems fit’ represents discretionary powers to do an act. It depends upon the
discretion of the Court to do any act or not. But it does not mean that the Court can act voluntarily. Courts
are required to use this discretionary power in Accordance with Judicial Principles.

Intention of Legislature

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

In ‘Raza Buland Sugar Co. Limitred V. Municipal Board, Rampur’ – 1964 (10) TMI 82 - a Constitution Bench of
the Supreme Court held that the question whether a provision is mandatory or directory, cannot be resolved
by laying down any general rule and it would depend upon the facts of each case.

As to whether a provision is mandatory or directory, would, in the ultimate analysis, depend upon the intent
of the law maker and that has to be gathered not only from the phraseology of the provision but also by
considering the nature, its design and the consequence which would follow from construing it in one way or
the other.

In Hari Vishnu Kamath v Ahmad Ishaque, the Supreme Court observed that the various rules for determining
when a statute might be construed as mandatory and when directory are only aids for ascertaining the true
intention of the legislature which is the determining factor, and that must ultimately depend upon the
context. An enactment, mandatory in form, might in substance be directory. The use of word ‘shall’ does not
conclude the matter.

In Ramkrishnamma v Lakshmibayamma, it was held that, in order to determine whether a particular

provision is mandatory or directory, it would be necessary whether a particular provision is mandatory or
directory, it would be necessary to ascertain whether the failure to comply with the requirement affects the
very foundation of being validated, It is always difficult to demarcate with any degree of accuracy in a
particular case what is mandatory and what is directory, or what is irregularity and what is a nullity. When a
question arises as to how far the proceedings are affected by the contravention of any provision, it is
necessary to see the scope and object of the particular provision which is said to be violated.

The Court has to consider the purpose for which the provision had been made, its nature, the intention of
the legislature in making the provision, the serious general inconvenience or injustice to persons resulting
there from when the provision is read one way or the other, the relation of the particular provision to other
provisions dealing with the same subject as well as other considerations which may arise on the facts of a
particular case, including the language of the provision.

Purpose behind the Statute

In Chandrika Prasad Yadav v State of Bihar 12 , it was held that, the question as to whether a statute is
directory or mandatory would not depend upon the phraseology used therein. The principle as regards the
nature of the statute must be determined having regard to the purpose and object the statute seeks to
achieve.

If an object of the enactment is defeated by holding the same director, it should be construed as mandatory;
whereas if by holding it mandatory serious general inconvenience will be created for innocent persons of the
general public without furthering the object of enactment, the same should be construed as directory but all
the same, it would not mean that the language used would be ignored altogether.

Procedural Provisions
Generally, procedural provision is Considered of Directory Nature, provided that the intention of the
legislature is not otherwise, but it is also not an absolute rule or principle. Provisions regarding the
procedure can be Mandatory also.

In Raghunath v/s Sunder Das (A.I.R. 42 Kolkata 72) Provisions of Code of Civil Procedure. 1908 were
considered to be Mandatory Nature.

Public Duties & Private Duties

In ‘Dattatraya Moreshwar Vs. The State of Bombay and others’ – 1952 (3) TMI 32 - it was held that it is well
settled that generally speaking the provisions of the statute creating public duties are directory and those
conferring private rights are imperative. When the provisions of a statute relate to the performance of a
public duty and the case is such that to hold null and void acts done in neglect of this duty would work
serious general inconvenience or injustice to persons who have no control over those entrusted with the
duty and at the same time would not promote the main object of legislature, it has been the practice of the
courts to hold such provisions to be directory only the neglect of them not affecting the validity of the acts
done.

Time Related Provisions

Where there is the provision of performing an act within a time period, there shall be considered to be of
Mandatory Nature otherwise Directory. In other words, it can be said that where time is the essence of the
contract, such provisions are of Mandatory Nature Bhavnagar University v/s Palitana Sugar Mills Ltd. (A
R2003 S.C. 511) : It was held where the limitation to do an act and its consequences have been expressed,
their such provisions should be deemed Mandatory.

▪ If the legislature intents to completion of an act within a definite time period, then this intention is
required to be provided in the statute, (Hindustan Life Insurance Company V/ s Life Insurance Corporation,
A.I.R 1963 S.C. 1083).

Conclusion

There are various tests to determine whether a particular provision of statute is “mandatory” or “directory”
in nature. Lord Campbell said that no universal rule can be laid down as to whether mandatory enactments
shall be considered directory only or obligatory with an implied nullification for disobedience.

Based on various judgements, it can be said that:

• any time limits prescribed in a subordinate legislation can only be termed as directory;
• a provision as to whether it is ‘mandatory’ or ‘director’ would depend upon the object of the
enactment; and
• the consequences of violating the provision must not affect the interest of the other party and
would defeat the purpose of the enactment.

The question as to whether mandatory provisions contained in statutes should be considered merely as
directory or obligatory has often been considered in judicial decisions. In dealing with the question no
general or inflexible rule can be laid down. It is always a matter of trying to determine the real intention of
the legislature in using the imperative or mandatory words and such intention can be gathered by a careful
examination of the whole scope of the statute and the object intended to be achieved by the particular
provision containing the mandatory clause. If it is held that the mandatory clause is obligatory, it inevitable
follows that contravention of the said clause implies the nullification so the contract.
Generally, a mandatory provision is to be construed strictly while a directory provision is to be construed
liberally. There have been many instances where the court has held that a substantial compliance with the
statute or with the rules framed there under is enough even if there be no literal compliance. Whether an
enactment is mandatory or directory depends on the scope and the object of the statute.

From the above discussion, the following rules regarding can be summarized regarding the mandatory and
directory statutes—

1. When the legislature used ‘must’ instead of ‘shall’ it uses a word which is most strongly imperative.

2. In some cases the word ‘must’ or the word ‘shall’ may be substituted for the word ‘may’ but only for the
purpose of giving effect to the clear intention of the legislature.

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

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

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

6. Similarly, it may happen that in an Act the word ‘may’ is used in such a way as to create a duty that must
be performed.

Q17. Doctrine of Pith and Substance

Ans
The Indian Constitution envisages a number of legal doctrines. A legal doctrine can be a principle or
set of principles that are widely followed.
The doctrine of pith and substance is essentially a Canadian doctrine. Canada is divided into the
Dominion and the Provinces. Canada then had only two lists. Australia, had first great model of
federalism, but had only one list. The doctrine was formulated in the case of Cushing V. Dupuy in
1880 – The Privy Council evolved this doctrine to decide the Constitutionality of the Canadian and
Australian statute regarding the violation of distribution of powers. To decide if the impugned
legislation was intra vires, the doctrine of Pith and Substance can be applied.

In India, the Doctrine of Pith And Substance was adopted by the Federal Court of India as well as
the Privy Council to determine constitutionality under the Government of India Act of 1935.
In Prafulla Kumar Mukherjee v. Bank of Commerce Ltd., Lord Porter said that whatever was pith
and substance was the effect of the legislation regarding which an objection was raised and in
which List its true spirit and character was to be found.
The Doctrine of Pith and Substance signifies that if the substance of legislation falls within the
legitimate power of a Legislature, the legislation does not become invalid merely because it
incidentally affects a matter outside its authorised sphere. One of such doctrines is the doctrine of
pith and substance. ‘Pith’ means the ‘essence of something’, whereas ‘substance’ would imply ‘the
most important part of something’. The phrase “Pith and Substance” means “true nature and
character”, and it comes into play when there is a conflict regarding the power of a level of
government to make law on a particular matter.
This doctrine relates to the violation of Constitutional delimitation of legislative powers in a Federal
State. Under it, the Court ascertains whether the alleged encroachment is merely incidental or
substantial. Thus, the doctrine of ‘pith and substance’ postulates that the impugned law is
substantially within the legislative competence of the legislature that made it, but only incidentally
encroaches upon the legislative field of another legislature.
There is a demarcation between the roles of the State and the Union. As per the doctrine, in their
respective spheres the State and Union are supreme.

Parliament and State Legislatures in broader sense stick to their assigned fields and do not
encroach upon jurisdiction of each other. By applying the doctrine of Pith And Substance, the real
authority can be ascertained. The doctrine determines in which piece of legislation it falls in
At times when they overlap each other (Which they are bound to in some cases), a whole statute
cannot be declared null and void. If the Centre and State encroach upon the sphere of each other,
the doctrine of Pith and Substance is applied. In simple, the doctrine is applied when there is
conflict with the subject matter of List I of the Seventh Schedule with List II.
Purpose - Doctrine of Pith And Substance
The main aim of introducing doctrine of pith and substance is to ensure that not every other law is
declared invalid simply because it infringes the power and jurisdiction of another level of
government, thus allowing flexibility. The doctrine is used by the courts to determine the true
nature of the concerned piece of legislation.
The Doctrine

The doctrine states that within their respective spheres the state and the union legislatures are
made supreme, they should not encroach upon the sphere demarcated for the other.
However, if one among the state and the Centre does encroach upon the sphere of the other, the
courts will apply the Doctrine of Pith and Substance.
If the pith and substance i.e., the true object of the legislation pertains to a subject within the
competence of the legislature that enacted it, it should be held to be intra vires although it may
incidentally encroach on the matters not within the competence of the legislature.
In State of Bombay v FN Balsara, the Bombay Prohibition Act was challenged on the ground that it
accidentally encroaches upon import and export of liquor across custom frontier – a central subject.
The court while upholding the impugned legislation declared that the Act was in pith and substance
a State subject even though it incidentally encroached upon a central subject.
The courts have a duty to apply the doctrine of pith and substance where there is an issue of power
of legislation. The court compares the matter of the enactment with the subjects mentioned under
the three Lists – the Union, the State, and the Concurrent List, and analyses which of the three lists
would cover the enactment. If the enactment is covered by the List which is related to the
legislature concerned, then the enactment is intra vires, and thus valid. However, if the enactment
is ultra vires, then it will be considered void.

However, there are a lot of factors that need to be taken into consideration when declaring an Act
as null and void. It may so happen that the legislature in concern may have accidentally encroached
upon the powers of another legislature, and in such a case, much scrutiny is needed to make sure
that it wasn’t done on purpose.

Application of the Doctrine

For applying the principle of pith and substance, regard is to be had to,
1. To the enactment as a whole;
2. To its main objects;
3. To the scope and effect of its provision.
The doctrine means the true subject matter of the legislature. It was held that the expression “with
respect to” in Article 246 brings in the doctrine of pith and substance in the understanding of the
execution of the legislative power. If the legislation has a substantial and not merely a remote
connection with the Entry, the matter may well be taken to legislation on the topic.

It has already been pointed out that notwithstanding the adoption of a threefold division of powers
and notwithstanding the embodiment of the general rule of Federal supremacy (in Article 246), it
has been held that some overlapping between the entries in the several lists was inevitable and
that in cases of alleged encroachment, the doctrine of pith and substance of the legislation in
question was to be determined.
Once it is found that in pith and substance, a law falls within the permitted field, any incidental
encroachment by it on a field not within its ambit does not affect the competence of the concerned
legislature to enact the law. In doing so the effect of an enactment is separated from the subject
matter. If a State Act, otherwise valid, has an effect on a matter in List I, it does not cease to be
legislation with respect to an Entry in List II or III.
The Courts have discarded pith and substance rule and the violation of fundamental rights will be
based on the “direct and inevitable” effect of a statutory provision. The test of pith and substance
of the subject matter and of the direct or incidental effect of the legislation is relevant to questions
of legislative competence, but they are irrelevant to the question of infringement of fundamental
rights. The true test in such cases is whether the effect of the impugned action is to take away or
abridge fundamental rights.
The application of the doctrine of pith and substance was defined by the Constitutional Bench of
the Supreme Court in Kartar Singh v. State of Punjab[6]. It observed that the doctrine of pith and
substance is used a law related to a matter in one of the Lists is also related, maybe indirectly, to a
subject in another List. In such a situation, the pith and substance of the law is to be ascertained.
On a careful inspection of the legislation, if it is found that the said legislation is on a subject in a list
concerning the said legislature, then the act in toto is to be held valid, without taking into account
any incidental encroachments that there might be. Incidental trenches cannot be altogether
forbidden.
Important ingredients that constitute the Doctrine of Pith and Substance

• The Doctrine is applied when the subject matter of List I of the Seventh Schedule is in conflict
with the subject matter of List II.
• The reason behind adopting this doctrine is that otherwise every law will be declared invalid on
the ground that it encroaches upon the subject matter of another sphere.
• The doctrine examines the true nature and substance of the legislation in order to determine
which List it belongs to.
• It takes into consideration whether the State has the power to make a law that encroaches on a
subject matter from another list.
• The doctrine was first applied and upheld by the Supreme Court in the FN Balsara case.

Conclusion
Despite the vivid segregation of powers among the Centre and the states, it is quite inevitable that
ancillary encroachments are bound to take place during the enactment of laws. The powers
demarcated as per Section 100 of the Government of India Act, 1935 was so rigid and stringent that
it gave no scope to the application of the doctrine of pith and substance. Subsequent to the framing
of the Indian Constitution in 1949, when such incidental encroachment of legislative powers take
place, courts with the aid of the doctrine of pith and substances decide the validity and legitimacy
of an enactment.
All in all, the doctrine of pith and substance has proved to be useful in various situations where the
Centre and the States have been in a tussle over legislative supremacy. In India, the Centre carries
more value than the States, and that is why a lot of subjects in the Union List are of grave
importance. The States are required to legislate only on those matters that concern the States
themselves. Still, there may be overlaps simply because one law is connected with the other,
directly or indirectly. What is imperative is that the courts perform their duty without any mistake.

IOS
25. Role of Legislative Intention
Introduction
The legislature is presumed to have a certain meaning of the words of any particular
statute. Any statute framed should be in accordance with such meaning. During the
interpretation of any statute, the rules of interpretation are used to gather the facts and
they are processed to clear the ambiguity and vagueness of the statute and to get a
clear meaning to the word. When the words of statutes are open to more than one
interpretation, then the court will have to choose the intention of the legislature which
is used in enacting a statute representing the true intention of the legislature.
Meaning
A statute is an edict, the most accepted mode of interpretation or construing the statute
is to adopt the interpretation or construction according “to the intent of them that make
it”.
It is the duty of Judicature is to act upon the true intention of the legislature. This is
guided by the Maxim. “Sententia Legis” i.e., true intention of legislature.
Intention of the legislature always serves as reference to the meaning of words used by
legislature which are objectively determined. It is nowhere seen or expressly provided,
it has to be assessed by the guiding rules of interpretation.
As essence of the law lies in the spirit, not in its letter, but letter are the only way in
which intentions are expressed. The words are external manifestation of intention that
it involves. When there is possibility of one or more interpretation of statute, courts has
to adopt that interpretation which reflects the ‘true intention of legislature’ which can
also be considered legal meaning statutory provisions.
• The intention of legislature shall have two aspects:-

• “Meaning’’: That which tell what the words mean.

• “Purpose and Object”: That which includes purpose and object of enacting
the statute.
As already understood intention of legislature is not found, it is assessed from the statute
with a combination of ‘meaning of the words’ and light of purpose or objects.
Guiding lines to frame intention of legislature are: –
1. The context (pari materiae. external aid to interpretation).
2. The subject matter.
3. The effects and consequences.
4. The spirit or reason of the law.
Intention of legislature is assessed either in express words or by necessary implication
in keeping mind the purpose or object of the statute.

Necessity of interpretation would arise only where the language of a statutory provision
is ambiguous, not clear or where two views are possible or where the provision gives a
different meaning defeating the object of the statute. If the language is clear and
unambiguous, no need of interpretation would arise.
 In this regard, a Constitution Bench of five Judges of the Supreme Court in R.S. Nayak
v A.R. Antulay, AIR 1984 SC 684 has held: “… If the words of the Statute are clear and
unambiguous, it is the plainest duty of the Court to give effect to the natural meaning of
the words used in the provision. The question of construction arises only in the event of
an ambiguity or the plain meaning of the words used in the Statute would be self
defeating”.

In Supreme Court in Grasim Industries Ltd. v Collector of Customs, Bombay, (2002)4

SCC 297 has followed the same principle and observed: “Where the words are clear and
there is no obscurity, and there is no ambiguity and the intention of the legislature is
clearly conveyed, there is no scope for court to take upon itself the task of amending or
altering the statutory provisions.” The purpose of Interpretation of Statutes is to help the
Judge to ascertain the intention of the Legislature – not to control that intention or to
confine it within the limits, which the Judge may deem reasonable or expedient.

Principals
Certain principles of interpretation are formulated by the Superior Courts to find out the
intention of the legislature.

1. Literal construction
In construing a statutory provision the first and the foremost rule of construction
is that of literal construction. All that the Court has to see at the very outset is,
what does the provision say? The Courts are bound by the mandate of the
Legislature and once it has expressed its intention in words which have a clear
significance and meaning, the Court is precluded from speculating. If the
provision is unambiguous and if from that provision the legislative intent is clear,
the other rules of construction of statutes need not be called into aid. They are
called into aid only when the legislative intention is not clear. But the courts
would not be justified in so straining the language of the statutory provision as to
ascribe the meaning which cannot be warranted by the words employed by the
Legislature.

2. Mischief rule (Heydon's case)-

When a question arises as to the interpretation to be put on an enactment, what
the Court is to do is to ascertain "the intent of them that make it," and that must
of course be gathered from the words actually used in the statute. That,
however, does not mean that the decision should rest on a literal interpretation
of the words used in disregard of all other materials. The literal construction,
then, has, in general, but prima facie preference. To arrive at the real meaning, it
is always necessary to get an exact conception of the aim, scope and object of
the whole Act; to consider: 1. What was law before the Act was passed? 2.
What was the mischief and defect for which the law had not provided? 3. What
 remedy Parliament has resolved and appointed to cure the disease? and 4. The
true reason of the remedy and then the judges have to make such construction as
shall suppress the mischief, and advance the remedy, and to suppress subtle
inventions and evasions for continuance of the mischief.

3. Words coupled together to take colour from each other

The rule is when two or more words which are susceptible of analogous
meaning are coupled together, they are understood to be used in their cognate
sense and they take their colour from each other, the meaning of the more
general being restricted to a sense analogous to that of the less general. This
rule, however, does not apply where the Legislature has deliberately used wider
words in order to widen the scope of the provision.

4. The golden rule:

No hypothetical considerationsArgument on hypothetical considerations should
not have much weight in interpreting a statute. However, if the language so
permits, it is open to the Court to give to the statute that meaning which
promotes the benignant intent of the legislation. A Court has the power to depart
from the grammatical construction, if it finds that strict adherence to the
grammatical construction will defeat the object the Legislature had In view. No
doubt, grammar is a good guide to meaning but a bad master to dictate.

5. Absurdity or hardship
If a literal interpretation of a statute leads to absurdity, hardship or injustice,
presumably not Intended, then a construction may be put upon it which
modifies the meaning of the words and even the structure of the sentence.
Again, however, the Court has no power to give the language of the statute a
wider or narrower meaning than the literal one, unless there is compelling
reason to give such other meaning. If the language is plain the fact that the
consequence of giving effect to it may lead to some absurd result is not a factor
to be taken into account in interpreting a provision, as it is for the Legislature to
step in and remove the absurdity. If on either of two possible views hardship
must result to one or the other party, then the considerations of hardship ought
to be ignored.

Conclusion
When the words of statutes are open to more than one interpretation, then the court
will have to choose the intention of the legislature which is used in enacting a statute
representing the true intention of the legislature. Thus, in this case, the court will look
into the legal meaning or true meaning of all the statutory provisions. The usage of the
intention of a legislature by every court should be justified by a proper reason and it
should not be left open to statutes which are present.

26. Explain presumption against extra territorial operation of Statue

Introduction
The territorial application of laws made by Parliament is enshrined in Article 245 of
the Constitution of India (“Constitution”). The universal presumption that laws made
by a country are limited to its own territorial borders, is provided under Article 245(1)
of the Constitution, which provides that “Subject to the provisions of this Constitution,
Parliament may make laws for the whole or any part of the territory of India.”
However, Article 245(2) of the Constitution carves out a specific exception providing
that a law made by Parliament, pursuant to Article 245(1), shall not be invalidated on
the ground that such a law would have extra-territorial operation. Most countries have
enacted extra-territorial laws with the US being the clear leader in this regard having
enacted anti-corruption law, securities laws etc. which have extra-territorial
application.
The applicability of any law, which is enacted by Indian parliament, outside the
territorial limits of India should be subject to the following constraints and limitations-
1. Doctrine of Territorial Nexus
When analysing Article 245, it is imperative to look at the doctrine of territorial nexus.
This doctrine states that only those laws, which have a direct connection with India or
have the potential to affect and impact the interest of India and her citizens can have a
valid and legally justified extraterritorial applicability.

In Governor- General Vs Raleigh Investment AIR 1944 FC 51: 1944 FCR 229 the court
held that territorial connection involves consideration of two elements – First, the
connection must be real and not illusory. Second, the liability sought to be imposed must
be pertinent to that connection.

In A.H. Wadia v.Income tax Commissioner, Bombay, 1947

The Supreme Court Held: In the case of a sovereign Legislature question of extra-
territoriality of enactment can never be raised in the municipal court as a ground for
challenging its validity. The legislation may offend the rules of international law, may
not be recognized by foreign courts, or there may be practical difficulties in enforcing
them but these are questions of policy with which the domestic tribunals are not
concerned.

2. Benefit or Welfare of Indian Citizens

“The purpose is to continuously, and forever be acting in the interest of the people of
India. It is a primordial condition and limitation. Whatever else may be the merits or
demerits of the Hobbesian notion of absolute sovereignty, even the Leviathan, has to
realize that the legitimacy of his or her powers, and its actual continuance, is premised
on such powers only being used for the welfare of the people.”

In this case the court put forward the view that since all the powers that rest with the
parliament derive their legitimacy from the people of India, the welfare and wellbeing
of the Indian population should be their primary concern while making laws and all the
laws should be made with sole objective of forwarding the interest and rights of the
Indian citizens.

Therefore, even if a law can be applied outside the geographical and political limits of
the republic of India, such a law should not prove to be, in any way detrimental to the
interest of all those “who constitute India”.

3. Limitation by Article 51 and Article 260 of the Constitution

The scope of Article 245 finds limitation from within the constitution itself in the form
of Article 51, which I part of the directive principle of state policy.

Article 51 of the constitution makes it very clear that the promotion and promulgation
of international peace and security is an extremely important duty of all those who are
supposed to govern the country.

In GVK Industries Limited v. Income Tax Officer, 2011

Issue- A question arose whether the Parliament was empowered to enact laws in
respect of extra-territorial aspects or causes that have no nexus with India, and
furthermore, if such laws are bereft (Without) of any benefit to India?
Decision- The clue of the answer to this question also lies in the word for used in
article 245(1). The Court derived the responsibility of the Parliament with the help of
the word for used in article 245(1) and stated that Parliament of India is to act as the
Parliament of India and of no other territory, nation or people. The Court also derived
two related limitations in this regard, the first being that the Parliament may only
exercise its powers for the benefit of India in regard to the necessity. The laws enacted
by Parliament may enhance the welfare of people in other territories too but the
benefit to or of India remain the central and primary purpose.

Case Laws
1. Tata Iron And Steel Company vs. Bihar State
The state of Bihar passed a Sales Tax Act for levy of sales tax
Issue- whether the sale was concluded within the state or outside if the goods were
produced, found and manufactured in the state .
Decision-The court held there was sufficient territorial nexus and upheld the Act as
valid.Whether there is sufficient nexus between the law and the object sought to be
taxed will depend upon the facts and circumstances of a particular case.
It was pointed out that sufficiency of the territorial connection involved consideration
of two elements- a) the connection must be real and not illusory b) the liability sought
to be imposed must be pertinent to that connection.
2. State of Bombay vs RMDC, AIR 1957, SC
Facts- The Respondent was not residing in Bombay but he conducted Competitions
with prize money through a newspaper printed and published from Banglore having a
wide circulation in Bombay. All the essential activities like filling up of the
forms,entry fees etc for the competition took place in Bombay.The state govt. sought
to levy tax the respondent for carrying on business in the state.
Issue- The question for decision before the Supreme Court was if the respondent, the
organizer of the competition, who was outside the state of Bombay, could be validly
taxed under the Act.
Decision-It was held that as all the activities which the competitor is ordinarily
expected to undertake took place most,if not in entirety,within Bombay. These
circumstances constituted a sufficient territorial nexus which the entitled state of
Bombay to impose a tax on the respondent.
3. State of Bihar vs Charusila Dasi
Facts-Bihar legislature enacted the Bihar Hindu Religious Trusts Act,1950, for the
protection and preservation of properties appertaining to the Hindu religious trusts.
The Act applied to all trusts any part of which was situated in the state of Bihar.
The Respondent created a trust deed of her properties of several houses and land in
Bihar and Calcutta.The trust being situated in Bihar.
Issue-The main question for decision was whether the Act apply to trust properties
which are situated outside the state of Bihar. Can the legislature of Bihar make a law
with respect to such a trust situated in Bihar and other properties appertaining to such
trust which is situated outside Bihar?
Decision- Applying the doctrine of territorial nexus, the Supreme court held that the
Act could affect the trust property situated outside Bihar, but appertaining to a trust
situated in Bihar where the trustees functioned. The Act aims to provide for the better
administration of Hindu religious trusts in the state of Bihar.The trust is situated in
Bihar the state has legislative power over it and also over its trustees or their servants
and agents who must be in Bihar to administer the trust.
Conclusion
In Conclusion, the parliament must be restricted from making laws on extraterritorial
aspects or causes when, such laws have no nexus to India. When nexus is established
it must be real and not illusory. If such a connection is established the courts must
enforce the law.

27. Role of International Agreements and Conventions in Constitution of Domestic

Act

28. Beneficial Legislation

Introduction
Interpreting a statute is essentially making sense of the law. It is a process through
which courts interpret the legislation to provide a better understanding of the laws, and
ascertain the true meaning of the statutes.
Interpretation means the art of finding out the true sense of an enactment by giving the
words of the enactment their natural and ordinary meaning. It is the process of
ascertaining the true meaning of the words used in a statute. 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’. The object of interpretation of statutes is to determine
the intention of the legislature conveyed expressly or impliedly in the language used.
As stated by SALMOND, "by interpretation or construction is meant, the process by
which the courts seek to ascertain the meaning of the legislature through the medium
of authoritative forms in which it is expressed."
Interpretation And Construction
Interpretation is the method by which true sense or the meaning of the word is
understood. The meaning of an ordinary meaning of an English word is not a question
of law. According to Gray, the process by which a judge constructs from the words of
a statute book, a meaning which he either believes to be that of the legislature, or
which, he proposes to attribute to it is interpretation. Salmond describes interpretation
as the process which the courts seek to ascertain the meaning of the legislature through
the medium of authoritative forms in which it is expressed.
Rule of Beneficial Construction
Beneficent construction involves giving the widest meaning possible to the statutes.
When there are two or more possible ways of interpreting a section or a word, the
meaning which gives relief and protects the benefits which are purported to be given
by the legislation, should be chosen. A beneficial statute has to be construed in its
correct perspective so as to fructify the legislative intent. Although beneficial
legislation does receive liberal interpretation, the courts try to remain within the
scheme and not extend the benefit to those not covered by the scheme. It is also true
that once the provision envisages the conferment of benefit limited in point of time
and subject to the fulfillment of certain conditions, their non-compliance will have the
effect of nullifying the benefit. There should be due stress and emphasis to Directive
Principles of State Policy and any international convention on the subject.
There is no set principle of construction that a beneficial legislation should always be
retrospectively operated although such legislation such legislation is either expressly
or by necessary intendment not made retrospective. Further, the rule of interpretation
can only be resorted to without doing any violence to the language of the statute.
In case of any exception when the implementation of the beneficent act is restricted
the Court would construe it narrowly so as not to unduly expand the area or scope of
exception. The liberal construction can only flow from the language of the act and
there cannot be placing of unnatural interpretation on the words contained in the
enactment. Also, beneficial construction does not permit rising of any presumption
that protection of widest amplitude must be deemed to have been conferred on those
for whose benefit the legislation may have been enacted.
Beneficial Construction of statutes have enormously played an important role in the
development and beneficial interpretation of socio – economic legislations and have
always encouraged the Indian legislators to make more laws in favour of the backward
class of people in India.
In the case of Sant Ram v Rajinderlal, the Supreme Court said that welfare legislation
must be interpreted in a third World perspective favoring the weaker and poor class. It
has also been laid down in the case of labor legislation that courts should not stick to
grammatical constructions but also have regard to ‘teleological purpose and protective
intendment of the legislation. Interpretation of labor legislations should be done by the
courts with more concern with the colour, the context and the content of the statute
rather than its literal import.
Beneficial Construction is a tendency and not a rule. The reason is that this principle is
based on human tendency to be fair, accommodating, and just. Instead of restricting
the people from getting the benefit of the statute, Court tends to include as many
classes as it can while remaining faithful to the wordings of the statute.
For example, in the case of Alembic Chemical Works vs. Workmen AIR 1961, an
industrial tribunal awarded more number of paid leaves to the workers than what
Section 79(1) of Factories Act recommended. This was challenged by the appellant.
The Supreme Court held that the enactment being a welfare legislation for the
workers, had to be beneficially constructed in the favour of worker and thus, if the
words are capable of two meanings, the one that gives benefit to the workers must be
used.
Limitation On The Application Of Beneficial Construction
If on the application of the rule of beneficial construction, the court finds that it is
doing complete justice and delivering a fair judgment then there is no question of why
should not such rule is applied? But there are certain restrictions which the court has to
take care of which at the time of application have to be adhered to –
1. Where the courts find that by the application of the rule of beneficial construction, it
would be re legislating a provision of statute either by substituting, adding or altering
any provision of the act.
2. Where any word in a statute confers to a single meaning only. Then the courts
should refrain from applying the rule of benevolent construction to the statute.
3. When there is no ambiguity in a provision of a statute so construed. If the provision
is plain, unambiguous and does not give rise to any doubt, the rule of beneficial
construction cannot be applied.
Conclusion
The rule of Beneficial Construction is applied in the cases where any construction may
do any benefit to the society or any group of people and are basically applied in the
socio – economic legislations. Here there is no conflict between the meanings of any
two sections and meanings attributed to them. Anf hence play an important in the
interpretation of statutes and is important rule of interpretation.

29. Explain Delegated Legislation

Introduction
The Constitution of Indian empowers Legislature to make laws for the country. One of
the significant legislative functions is to determine a legislative policy and to frame it
as a rule of conduct. Obviously such powers cannot be conferred on other institutions.
But keeping in mind various multifarious activities of a welfare State, it is not possible
for the legislature to perform all the functions. In such situation, the delegated
legislation comes into the picture. Delegated Legislature is one of the essential
elements of administration whereby the executive has to perform certain legislative
functions.
Meaning
Delegation of powers means the powers passed on by the higher authority to the lower
authority to make laws. Delegated legislation means the powers given by the
legislature to the executive or administration to enact certain laws. The simple
meaning of the expression “delegated expression” may be:
When the function of the legislation is entrusted to organs other than the legislature by
the legislature itself, the legislation made by such organs is known as delegated
legislation.
Delegated legislation (sometimes referred as secondary legislation or subordinate
legislation or subsidiary legislation) is a process by which the executive authority is
given powers by primary legislation to make laws in order to implement and
administer the requirements of that primary legislation. Such law is the law made by a
person or body other than the legislature but with the legislature’s authority.
Need For Delegated Legislation
The process of delegated legislation enables the Government to make a law without
having to wait for a new Act of Parliament to be passed. Further, delegated legislation
empowers the authority to modify or alter sanctions under a given statute or make
technical changes relating to law. Delegated legislation plays a very important role in
the process of making of law as there is more delegated legislation each year than there
are Acts of Parliament. In addition, delegated legislation has the same legal standing as
the Act of Parliament from which it was created.

Delegated Legislation is important because of several reasons. They are-

1. Delegated Legislation reduces the burden of already overburdened Legislature

by enabling the executive to make or alter the law under the authority of
Legislature. Thus, this helps the Legislature to concentrate on more important
matters and frame policies regarding it.
2. It allows the law to be made by those who have the required knowledge and
experience. For instance, a local authority can be permitted to enact laws with
respect to their locality taking into account the local needs instead of making
law across the board which may not suit their particular area.
3. The process of delegated legislation also plays a significant role in an
emergency situation since there is no need to wait for particular Act to be
passed through Parliament to resolve the particular situation.
4. Finally, delegated legislation often covers those situations which have not been
anticipated by the Parliament during the time of enacting 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.

Types of Delegated legislation: -

1.Power to bring an Act into operation: -eq: on rule date on the Govt. by notification
in the Gazette. Example: on such date as the government by notification in the gazette
because govt. has better knowledge of the practical exigencies of bringing the law into
force. The Court Cannot Ask the Govt. to bring the law into force. It was held inA.K.
Roy. v. UOI AIR 1982 SC 710 where the constitution of the Advisory Board was in
question and the term qualified to be a High Court judge changed to actual or had been
a High Court judge. National Security Act. 1980 did not have this provision it was
held by that the court cannot ask the Govt. to implement.

2.Conditional Legislation: -The legislation makes the law but leaves it to the executive
to bring the act into operation when conditions demanding such operation are obtained.

(a) To bring an act into operation.

(b) To extend the application of any act in force in one territory.

(c) To extend or to except from the operation of an Act certain categories of subjects or
territories.

Control on Delegated Legislation

In India parliamentary control of administrative rule-making is implicit as a normal

constitutional function because the executive is responsible to the Parliament. There are
three types of control exercised:

1. Direct General Control

Direct but general control over delegated legislation is exercised:

(a) Through the debate on the act which contains delegation. Members may discuss
anything about delegation including necessity, extent, type of delegation and the
authority to which power is delegated.

(b) Through questions and notices. Any member can ask questions on any aspect of
delegation of legislative powers and if dissatisfied can give notice for discussion under
Rule 59 of the Procedure and Conduct of Business in Lok Sabha Rules.

(c) Through moving resolutions and notices in the house. Any member may move a
resolution on motion, if the matter regarding delegation of power is urgent and
immediate, and reply of the government is unsatisfactory.

2. Direct special control

This control mechanism is exercised through the technique of “laying” on the table of
the House rules and regulations framed by the administrative authority. The notable use
of this technique was made in the Reorganization Acts of 1939 to 1969, which
authorised the President to reorganise the executive government by administrative rule-
making. In England the technique of laying is very extensively used because all the
administrative rule-making is subject to the supervision of Parliament under the
Statutory Instruments Act, 1946 which prescribes timetable. The most common form of
provision provides that the delegated legislation comes into immediate effect but is
subject to annulment by an adverse resolution of either house.
2. Indirect control
Indirect control is exercised by Parliament through its Committees. With a view to
strengthen Parliamentary control over delegated legislation, Scrutiny Committees were
established. In UK and India, there are Standing Committees of Parliament to
scrutinise delegated legislation. In the USA, on the other hand, there is no equivalent
to such committees, the responsibility being diffused. The responsibility is shared but
a host of committees – standing committees in each House of Congress, committees
on government operation in each house, and some other joint bodies like the
committee on atomic energy. In England, the Select Committee on Statutory
Instruments was established by the House of Commons in 1944. In 1950, the Law
Minister made a suggestion for the establishment of a Committee of the House on the
pattern of the Select Committee on Statutory Instruments, 1944, to examine delegated
legislation and bring to the notice of the House whether administrative rule-making
has exceeded the intention of the Parliament or has departed from it or has affected
any fundamental principle.
Such a committee known as the Committee on Subordinate Legislation of Lok Sabha
3. Judicial Control

Judicial control over delegated legislative is exercise at the following two levels:

1. Challenging the delegation as unconstitutional

2. Improperly exercise of Statutory power

Chintaman Rao and Ors. v. State of Madhya Pradesh, 1951 AIR

118: Prohibition of making bidis in the agriculture season by the Deputy
Commissioner is violative of Article 19(1)(g) of the Indian Constitution.

Chandran v. R: It was held in this case that if the power of by-laws entrusted in the
hands of the Legislature, then it must be within the limits of the Legislature and if it
exceeds the limit then this by-laws can be struck down.

Conclusion
In the end we can conclude that the delegated legislation is important in the wake of
the rise in the number of legislations and technicalities involved. But at the same time
with the rise in delegated legislation, the need to control it also arises because with the
increase in the delegation of power also increases the chance of the abuse of power.
The judicial control apart from the legislative and procedural control is the way how
the delegation of power can be controlled. Thus, the delegated legislation can be
questioned on the grounds of substantive ultra vires and on the ground of the
constitutionality of the parent act and the delegated legislation. The latter can also be
challenged on the ground of its being unreasonable and arbitrary.

30. Doctrine of Colorable Legislation

Introduction
The doctrine of colourability is the concept that when a legislature aims to do
something that it is unable to do or is beyond its capability or authority, within the
limitations of its government’s constitution, it colours the law with a concealed motive
or purpose, allowing it to accomplish its original hidden goal. Legislation is termed as
colourable when a legislature, having insufficient or absolutely no authority or
legislative capability, enacts legislation that is so disguising that it misleadingly seems
to drop within its legislative capability. It is clear that the purpose lies in the element
that the legislature is unable to legislate directly; it cannot traverse outside its
capability to legislate it in an indirect manner. This principle is called the Doctrine of
Colourable Legislation.

Doctrine of Colourable Legislation in India

In India ' colourable legislation theory ' implies only a restriction of the legislature's
law-making power. While the government purports to act within its authority, it
appears to realize but in fact, it has transgressed certain powers. So, the doctrine
becomes valid whenever a statute tries to do what it can not do specifically in an
indirect manner. In India parliamentary and state legislatures, legislative powers are
delegated by Article 246 and allocated in the Seventh Schedule of the Indian
Constitution by lists I, II, and III. Parliament has the power to legislate on any of the
List II matters, and Parliament and the State Legislatures both have the power to make
laws on any of the List III matters, and the residual power of regulation is vested on
Parliament by way of Article 248 and Article 97, List I. It is a matter of how
legislative power must be exercised between the Center and the States, or it relies only
on the relationships between them, to create some legislation or the legitimacy of that
rule. The main point is that the government with punitive authority can not invade the
field of competency. It's called the "constitution scam."
One of the most cogent and lucid explanations relating to this doctrine was given in
the case of
K.C. Gajapati Narayana Deo And Other v. The State Of Orissa

If the Constitution of a State distributes the legislative powers amongst different

bodies, which have to act within their respective 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 has or has not, in respect to the subject-matter of the statute or in the method of
enacting it, transgressed the limits of its constitutional powers.

If the rule is resolved that no malafides could be applied to the Government, the first
respondent does not argue that the provision was enacted only to prosecute the first
respondent. It is not necessary to accuse the government as an individual of having
passed a law for a foreign reason. Therefore, the legislation could not be attributed to
any malafides. A legislature does not operate on outside thought. But a legislative
action based on mala fide can not be struck down for lack of legal integrity or for
being unreasonable.

Case Laws
1. State of Bihar v. Kameshwar Singh

This is the single landmark case where the stature has been declared evidently void on
the ground of being colourable legislation. The petitioner, in this case, had challenged
the rationality of the Bihar Land Reforms Act 1950 on the ground that the act was
apparently intended to place the principle of compensation but in fact, it had failed to
lay down any such doctrine. This was purported as the hidden effort to deprive the
petition of his right to benefit. The court also upheld the unconstitutionality of the Act.

2. State of Tamil Nadu v. M. Rayappa Gounder

In this case, the State of Tamil Nadu enforced to reevaluate a few of the theatre
owners who were held to have evaded the entertainment tax. When the matter was
heard by the High Court, it was ascertained that the particular legislation Madras
Entertainment Tax Act 1939 did not let the government consider reassessment, and the
Act was declared unconstitutional. The state govt. preferred an appeal before the
Supreme Court to which the court pronounced that the effect of this provision was to
override the HC decision and it was not envisioned to change the law retrospectively.

3. In the case of M.R. Balaji v. The state of Mysore,

an order of the Mysore Government was challenged under Article 15(4) for reserving
seats for admission to the State medical and engineering colleges. The state issued an
order that all the communities except the Brahmin community, fell within the classes
of educationally and socially backward classes and scheduled castes and scheduled
tribes and 75% seats were reserved for them. On July 31, 1962 the State of Mysore
passed another order which superseded all the previous orders and left only 32% seats
for the merit pool. The petitioner said that the classification made by the state was
irrational and reservation of 68% was a fraud on the Article 15(4) of the Constitution.
The question was whether Article 15(4) gives constitutional power to the States to
pass such reservation power or not. The court held that the reservation is a fraud on the
constitutional power conferred on the state by Article 15(4).
Limitation of Doctrine of Colourable Legislation
 • The doctrine does not extend to Subordinate Legislation, either.
• Colorable law theory does not require any doubt on the part of the legislature
about bona fides or mala fides. The whole theory transforms itself into a single
legislature's, question of ability to pass a particular law.
• If a Legislature has the power to make legislation on a particular subject, it also
has the power to make the law successful.
• The doctrine has no effect where any Constitutional restriction does not fetter
the powers of a legislature.
• When discussed above, the Legislature's transgression of constitutional power
may be proprietary, manifest or actual, but may also be veiled, concealed, and
indirect, and the term "Colorable Legislation" applies only to this latter class of
situations.
Conclusion
The Constitution of India has brought about well-founded dissemination of powers
between Parliament and State Legislatures and every one of them is obligated to act
within its confined sphere. The question of legislature competency often ascends when
they seek to transgress the limits enforced by the Constitution but these contraventions
are sometimes direct or patent. The Doctrine acts as a fundamental device of the
Judiciary to monitor the legislative authorities endowed on the Union and State
Governments and determine the validity of the legislation in question.

31. Presumption to Jurisdiction of Court

Introduction
Jurisdiction (from the Latin ius, iuris meaning "law" and dicere meaning "to speak") is
the practical authority granted to a formally constituted legal body or to a political
leader to deal with and make pronouncements on legal matters and, by implication, to
administer justice within a defined area of responsibility.
Jurisdiction has not been explained in the Code of Civil Procedure. In simple words, it
can be described as the power of the court to settle the matter. The Indian Judiciary has
invoked the ancient legal maxim ‘Ubi jus Ibi Remedium’, which means that where there
is a right there is a remedy. The judicial forum must have jurisdiction to deal with the
matter. Hence, the Jurisdiction commonly rests where the crime is committed.

Presumption as to jurisdiction

In dealing with the subject whether a civil court’s jurisdiction to analyse a suit is barred
or not, it is necessary to bear in mind that every opinion should be made in support of
the jurisdiction of a civil court. The rejection of the jurisdiction of a civil court to
entertain civil causes should not be easily inferred unless the appropriate law contains
express terms to that effect or points to a significant and inevitable implication of nature.

Burden of proof

It is well proved that it is for the party who tries to dismiss the jurisdiction of the civil
court to establish it. It is uniformly well established that the statue dismissing the
jurisdiction of a civil court must be strictly explained. In the case of doubt as to
jurisdiction, the court should lean towards the theory of jurisdiction. A civil court has
original authority to determine the issue of its own jurisdiction although as a
consequence of such query it may become that it has no jurisdiction to consider the suit.

Exclusion of jurisdiction: limitations

A litigation having a grievance of a civil nature has, independent of any statute, a right
to institute a suit in a civil court unless its cognizance is either expressly or impliedly
barred. The exclusion of the jurisdiction of a civil court is not to be readily inferred and
such exclusion must be clear.

Again, even when the jurisdiction of a civil court is barred, either expressly or by
necessary implication, it cannot be said that the jurisdiction is altogether excluded. A
court has jurisdiction to examine whether the provisions of the act and the rules made
thereunder have or have not been complied with, or the order is contrary to law,
malafide, ultra vires, perverse, arbitrary, ‘purported’, violative of the principles of
natural justice, or is based on ‘no evidence’ and so on. In all these cases, the order cannot
be said to be under the act but is de hors the act and the jurisdiction of a civil court is
not ousted. In the leading decision of Secretary of State v. Mask & Co., the Privy
Council rightly observed:
“it is settled law that the exclusion of the jurisdiction of the civil court is not to be readily
inferred, but that such exclusion must either be explicitly expressed or clearly implied.
It is also well established that even if jurisdiction is so excluded the civil courts have
jurisdiction to examine into cases where the provisions of the act have not been
complied with, or the statutory tribunal has not acted in conformity with the fundamental
principles of judicial procedure.”

Case Laws

1. Premier automobiles v. K.D Wadke

The Supreme Court laid down the following principles as relevant to the jurisdiction of
civil courts in association with industrial disputes:

If a conflict is not an industrial conflict, nor does it correlate to the enforcement of any
other right under the industrial dispute act, the remedy lies only in civil court.

If a conflict is an industrial conflict emerging out of a right or liability under the general
or public law, the jurisdiction of the court is an alternative left to the person involved to
decide his remedy for the support which is sufficient to be given in a particular remedy.

If an industrial dispute relates to the implementation of the right or a duty organised

under the act, then the only remedy available is to get adjudication under the act.

2. Dhulabhai v. state of MP

Hidyatullah summarized the following principles relating to exclusion of jurisdiction of

civil courts:

When a statute provides finality to the orders of particular tribunals, the civil court
jurisdiction must be kept to be prohibited. Such a provision does not eliminate those
cases where the terms of the act have not complied with fundamental laws of judicial
method.
When there is an express bar of jurisdiction of the court, an examination of a scheme of
a particular act to find the adequacy or sufficiency of remedies provided may be
important but this is not crucial for maintaining the jurisdiction of a civil court

It examines the terms of a specific act as ultra vires cannot be brought before tribunals
constituted under the act. Even the High Court cannot go for revision or reference from
the decision of the tribunal.

When the terms are already stated illegal or declared the constitutionality of any terms
is to be challenged, then a suit is open. A writ of certiorari may introduce a direction to
refund but it is not a necessary remedy to compensate a suit.

When the particular Act includes no method for a return of tax collected in excess of
constitutional goals, a suit lies.

Prohibition of the jurisdiction of a civil court is not ready to be inferred unless the
conditions above set down apply.

Conclusion

Civil court has jurisdiction to investigate whether tribunal and quasi-judicial bodies or
legal executive acted within their jurisdiction. It can be presumed that section 9
essentially deals with the issue of the civil court’s jurisdiction to consider a matter. Civil
court has jurisdiction to consider a suit of civil nature except when it’s notification is
expressly barred or bared by significant suggestion. Civil court has jurisdiction to
resolve the problem of its jurisdiction.