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ANANYA R. BIBAVE
1.
INTERPRETATION OF STATUTES
SYLLABUS
INTRODUCTION
LITERAL RULE:
The words of a statute are first understood in their natural, ordinary or popular sense
and phrases and sentences are construed according to their grammatical meaning, unless
that leads to some absurdity or unless there is something in the context, or in the object of
the statute to suggest the contrary [Crawford v. Spooner, 1846]. The true way according to
Lord Brougham, to take the words as the legislature have given them, and to take the
meaning which the words either by preamble or by the context of the words in question,
controlled or altered (ibid); and in the words of Viscount Haldane L.C., if the language used
has a natural meaning we cannot depart from that meaning unless, reading the statute as
whole, the context directs us to do so [Attorney General v. Milne, 1915]. In an oft quoted
passage, Lord Wensleydale stated the rule that, In construing will and indeed statutes and
all written instruments, the grammatical and ordinary sense of the word is adhered to, unless
that would lead to some absurdity or some repugnance or inconsistency with the rest of the
instrument in which case the grammatical and ordinary sense of the words may be modified,
so as to avoid that absurdity, and inconsistency, but no further[Grey v. Pearson,1857]. And
stated Lord Atkinson: In the construction of statutes, their words must be interpreted in their
ordinary grammatical sense unless there be something in the context, or in the object of the
statute in which they occur or in the circumstances in which they are used, to show that they
were used in a special sense different from their ordinary grammatical sense.[Corporation
of the City of Victoria v. Bishop of Vancouver Island, 1921] Viscount Simon L.C., said: The
golden rule is that the words of a statute must prima facie be given their ordinary meaning.
[Nokes v. Doncaster Amalgamated Collieries Ltd., 1940]
GOLDEN RULE:
For a modern statement of the rule (i.e. literal rule to golden rule) one may refer to
the speech of Lord Simon of Glaisdale in a case where he said: Parliament is prima facie to
be credited with meaning what is said in an act of Parliament. The drafting of statutes, so
important to a people who hope to live under the rule of law, will never be satisfactory unless
courts seek whenever possible to apply the golden rule of construction, that is to read the
statutory language, grammatically and terminologically, in the ordinary and primary sense
which it bears in its (construction) context, without omission or addition. Of course,
MISHCHIEF RULE:
When the material words are capable of bearing two or more constructions the most
firmly established rule for construction of such words of all statutes in general (be they
penal or beneficial, restrictive or enlarging of the common law) is the rule laid down in
Heydons Case (1584) which has now attained the status of a classic (Kanailal Sur v.
Paramanidhi Sadhukhan, 1957). The rule which is also known as purposive construction or
mischief rule (Anderton v. Ryan, 1985), enables consideration of four matters in construing
an Act:
i.
ii.
What was the mischief or defect for which the law did not provide,
iii.
iv.
suppress the mischief and advance the remedy. The rule was explained in the [Bengal
Immunity Co. v. State of Bihar, 1955] by S.R. Das, C.J., as follows: It is a sound rule
construction of a statute firmly established in England as far back as 1504 when Heydons
PREAMBLE:
The role of preamble in interpretation cannot be curtailed or restricted. Preamble can
be an aid in constructing a provision when the provision is ambiguous [Sita Devi v. State of
Bihar, 1995]. It can afford useful assistance to ascertain legislative intention but cannot
control otherwise the plain meaning of a provision [L.D.A. v. M. K. Gupta, 1994]
In the words of Lord Normand, there may be no exact correspondence between
preamble and enactment, and the enactment may go beyond, or it may fall short of the
indications that may be gathered from the preamble. Again the preamble cannot be of much,
or any, assistance in construing provisions which embody qualifications or exceptions from
the operation of the general purpose of the Act. It is only when it conveys a clear and
definite meaning in comparison with relatively obscured or definite enacting words that the
preamble may legitimately prevail [A.G.V.HRH Prince Ernest Augustus of Hanover, 1957]
The Supreme Court also enunciated the same principle about the preamble: It is
one of the cardinal principle of construction that where the language of an Act is clear, the
preamble must be disregarded though where the object of or meaning of an enactment is
not clear, the preamble may be resorted to explain it. Again, where very general language is
used in an enactment which, it is clear must be intended to have a limited application, the
preamble may be used to indicate to what particular instances, the enactment is intended to
apply. We cannot, therefore, start with the preamble for construing the provisions of an Act,
though we could be justified in resorting to it, and we will be required to do so, if we find the
language used by the Parliament is ambiguous or is too general though in point of fact
Parliament intended that it should have a limited application [Burakar Coal Co. Ltd. v. Union
of India, 1961]
Retrospectively inserted preamble into an earlier act is not of much assistance for
gathering the intention of the original act. The view of the Gwyer, C.J. is pertinent here. He
said, But we doubt very much whether a preamble retrospectively inserted in 1940 in an Act
passed 25 years before can be looked at by the Court for the purpose of discovering what
the true intention of the Legislature was at the earlier date. A legislature can always enact
that the law is, and shall be deemed always to have been such and such, but that is wholly
different thing from imputing to dead and gone legislators a particular intention merely
DEFINITION SECTIONS:
The principle is that all statutory definitions have to be read subject to be the
qualifications variously expressed in the definition clauses which created them and it may be
that even where the definition is exhaustive inasmuch as the word defined is said to mean a
certain thing. It is possible for the word to have a some what different meaning in different
sections of the Act depending upon the subject or context. That is why all definitions in
statutes generally begin with the qualifying words, namely, unless there is anything
repugnant in the subject or context. Thus, there may be sections in the Act where the
meaning may have to be departed from on account of the subject or context in which the
word had been used and that will be giving effect to the opening sentence in the definition
section, namely unless there is anything repugnant in the subject or context. In view of this
qualification, the court has not only to look at the words relating to such matter and interpret
the meaning intended to be conveyed by the use of the words under those circumstances
[Whirlpool Corp. v. Registrar of Trade Marks, 1998]
While interpreting a definition, it has to be borne in mind that the interpretation
placed on it should not only be not repugnant to the context, it should also be such as would
aid the achievement of the purpose which is sought to be served by the Act. A construction
which would defeat or was likely to defeat the purpose of the Act has to be ignored and not
accepted [K.V. Muthu v. Angamuthu Ammal, 1997]
The definition contained in the definition clause of a particular statute should be used
for the purpose of the Act. Definition from any other statute cannot be borrowed and used
ignoring the definition contained in the statute itself.
A term or expression defined under a particular statute has its own scope or limits.
Such a definition should not be either restricted or expanded by importing elements from
other legal systems when there is no ambiguity in the definition. [Feroze N. Dotivala v. P.M.
Wadhwani, 2003]
Sometimes a definition is divided into two parts- explanatory and expandatory. When
the explanatory or the main part itself uses expressions of wide amplitude indicating clearly
its wide sweep, then its ambit is widened to such things which otherwise would have been
beyond its normal import. [LDA v. M. K. Gupta, 1994]
HEADING:
Headings are of two kinds, those prefixed to a section and those prefixed to a group
or set of sections. It is now settled that the headings can be preferred to in consisting an Act
of the Legislature.
In Frick India Ltd. v. Union of India (1990) the Supreme Court observed: It is well
settled that the headings prefixed to sections or entries cannot control the plain words of the
provision; they cannot also be referred to for the purpose of construing the provision when
the words used in the provision are clear and unambiguous; nor can they be used for cutting
down the plain meaning of the words in the provision.
Only in the case of ambiguity or doubt the heading or sub-heading may be referred
to as an aid in construing the provision but even in such a case it could not be used for
cutting down the wide application of the clear words used in the provision.
Another important case is that of Bhinka v. Charan Singh (1959) in which the
respondent-landlord sought to evict the tenant under section 180 of the U.P. Tenancy Act,
1939. The section reads that a person taking or retaining possession of a plot of land
without the consent of the person entitled to admit him and otherwise than in accordance
with the provisions of law for time being in force shall be liable to ejectment.
MARGINAL NOTES:
In some exceptional cases, marginal notes may be inserted by the legislators
themselves. In such cases help can be taken of the marginal notes because here they are
considered as part of the Act. For example, marginal notes appended to Articles of the
Constitution have been held to constitute part of the Constitution as passed by the
Constituent Assembly and, therefore, they have been used in construing the Articles of the
Constitution. In Bengal Immunity Co. Ltd. v. State of Bihar (1955) the Supreme Court held
that marginal notes appended to Article 286, which provides for Restrictions as to
imposition of tax on the sale or purchase of goods, are a part of the Constitution and they
furnish prima facie some clue as to the meaning and purpose of the Article.
In Balraj Kumar v. Jagatpal Singh (1926) Lord Macnaughten said, It is well settled
that marginal notes to the sections of an Act of Parliament cannot be referred to for the
purposes of construing the Act. The contrary opinion originated in a mistake, and has been
exploded long ago. There seems to be no reason for giving the marginal notes in an Indian
statute any greater authority than the marginal notes in an English Act of Parliament
The marginal notes or captions are, undoubtedly, part of legislative exercise and the
language therein provides the key to the legislative intent. The words so employed are not
mere surplusage. [Uttam Das Chela Sunder Das v. Shiromani Gurudwara Prabandhak
Committee, 1996] The legislative intent contained in the provision should not be bypassed
PUNCTUATION:
It is very doubtful to say that in the construction of modern acts punctuation can be
looked upon for purposes of construction. In the past also courts did not regard punctuation
in the construction of a statute. In the words of Hobhouse, It is an error to rely on
punctuation in construing acts of the legislature
In Ashwini Kumar Ghose v. Arabinda Bose (1952) Mukherjea, J., said, Punctuation
is after all a minor element in the construction of a statute, and very little attention is paid to
it by English Court.
With respect to modern statute it appears that if the statute in question is found to be
carefully punctuated, punctuation, though a minor element, may be resorted to for purposes
of construction.
In M. K. Salpekar v. Sunil Kumar Shamsunder Chaudhari (1988) clause 13 (3) (v) of
the C. P. and Berar Letting of Houses and Rent Control Order were construed. This
provision permitted ejectment of a tenant on the ground that the tenant had secured
alternative accommodation, or has left the area for a continuous period of four months and
does not reasonably need the house. In holding the requirement that the tenant does not
reasonably need the house has no application when he has secured alternative
accommodation; the court referred and relied upon the punctuation comma after the words
alternative accommodation.
Another example is Mohd. Shabbir v. State of Maharashtra (1979). In this case,
section 27 of the Drugs and Cosmetics Act, 1940 was construed. According to the section,
ILLUSTRATION:
The illustrations appended to a section form part of the section and although they do
not form part of the statute, are of relevance and value in the construction of the text of the
section and they should not be readily rejected as repugnant to the section.
Illustrations to the section are parts of the section and help to elucidate the principle
of the section. [Mahesh Chander Sharma v. Raj Kumari Sharma, 1996] But it is said that
illustrations cannot modify the language of the section and they cannot either curtail or
expand the ambit of the section which alone forms the enactment.
For example, in Sopher v. Administrator General of Bengal (1944) in interpreting
section 113 of the Indian Succession Act, 1925 and in deciding that later bequest to be
valid must comprise of all testators remaining interest if the legatee to the later bequest is
not in existence at the time of the testators death and that a conferment of a life estate
under such a bequest is not valid. The Privy Council took on aid of illustrations 2 and 3
appended to that section and held that what is not clear from the language of the sectionthat however complete may be the disposition of will, gift after the prior bequest may not be
a life interest to an unborn person for that would be a bequest to a person not in existence at
the time of the testators death of something less than remaining interest of the testator.
The view of Lord Shaw expressed in Ariffins case [Mohd. Sydeol Ariffin v. Yeah Oai
Gark, 1916] is pertinent here. Lord Shaw observed: It is the duty of a court of law to accept,
if that can be done, the illustrations given as being both of relevance and value in the
construction of the text. The illustrations should in no case be rejected because they do not
square with ideas possibly derived from another system of jurisprudence as to the law with
which they or sections deal. And it would require a very special case to warrant their
rejection on the ground of this assumed repugnancy to the sections themselves. It would be
the very last resort of construction to make this assumption. The great usefulness of the
illustrations which have, although not part of the sections, be expressly furnished by the
PROVISO:
Proviso has been variously defined. Hidayatullah, J., laid down a general rule
regarding a proviso: As a general rule, a proviso is added to an enactment to qualify or
create an exception to what is in the enactment and ordinarily, a proviso is not interpreted as
stating a general rule.[Shah Bhojraj Kuverji Oil Mills and Ginning Factory v. Subhash
Chandra Yograj Sinha, 1961]
Lush J., observed: When one finds a proviso to a section the natural presumption is
that, but for the proviso, the enacting part of the section would have included the subject
matter of the proviso. [Mullins v. Treasurer of Survey, 1880]
In the words of Kapur, J.,: The proper function of a proviso is that it qualifies the
generality of the main enactment by providing an exception and taking out as it were, from
the main enactment, a portion which but for the proviso would fall within the main
enactment
Ordinarily, it is foreign to the proper function of a proviso to read it as providing
something by way of an addendum or dealing with a subject which is foreign to the main
enactment. [CIT, Mysore etc. v. Indo Mercantile Bank Ltd., 1959]
A proviso to a provision in a statute has several functions and while interpreting a
provision of the statute, the court is required to carefully scrutinize and find out the real
object of the proviso appended to that provision. It is not a proper rule of interpretation of a
proviso that the enacting part or the main part of the section construed first without
EXPLANATION:
Sometimes an explanation is appended to a section to explain the meaning of words
contained in the section. Explanations are normally 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. It becomes a part and parcel of the enactment.
Explanation to a section is part of the section.
The Supreme Court observed in the Bengal Immunity Co. v. State of Bihar, 1955 that
an explanation is a part of the section to which it is appended and the whole lot should be
read together to know the true meaning of the provision. The explanation is to be limited to
the purpose for which it was created and should not be extended beyond that legitimate
field. The explanation created a legal fiction and these fictions are created for definite
purpose. Here the avowed purpose of the explanation was to explain what an outside sale
SCHEDULES:
Schedules attached to an Act generally deal 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.
The division of a statute into sections and schedules is done only for convenience
and, therefore, a schedule may contain substantive enactment which may even go beyond
the scope of a section to which the schedule may appear to be connected by its heading.
Here, in such a case a clear positive provision in a schedule may be held to prevail over the
PARLIAMENTARY HISTORY:
(a) Bill:
As the speeches made by the member of the constituent assembly in the course of
debates on the constitution cannot be admitted as an external aid to the construction of the
constitution. in the same way, the debates on a bill in parliament are not admissible for
construction of the Act which is ultimately enacted.
In Chiranjit lal choudhry v. Union of india(AIR 1951 SC pp 45,46)FAZAL ALI J.
admitted parliamenatary history including the speech of minister introducing the Bill as
evidence of the circumstances which
SUBSEQUENT
SOCIAL,
POLITICAL
AND
ECONOMIC
DEVELOPMENTS
AND
SCIENTIFIC INVENTIONS:
Generally, statutes are of always speaking variety and the court is free to apply the
current meaning of the statute to present day conditions. Therefore, the reference to
circumstances existing at the time of the passing of the statute does not mean that the
language used, at any rate, in a modern statute should be held to be inapplicable to social,
political and economic developments or to scientific inventions not known at the time of
passing of the statute.
A statute may be interpreted to include circumstances or situations which were
unknown or did not exist at the time of the enactment of the statute. (Sr. Electric Inspector v.
Laxminarayan Chopra, AIR 1962 SC 159, p. 557 (HL)). Lord Bridge observed: When a
change in social conditions produces a novel situation, which was not in contemplation at
the time when a statute is first enacted, there can be no a priori assumption that the
enactment does not apply to the new circumstances. If the language of the enactment is
wide enough to extend to those circumstances, there is no reason why it should not apply.
(Comdel Commodities Ltd. V. Siporex Trade, SA, (1990) 2 ALL ER 552, p.557 (HL).
In a case before it, the Supreme Court emphasized that the Indian Penal Code
should be construed, as far as its language permits, with reference to modern needs and not
integrated participatory consultative process and all the functionaries must act collectively to
reach an agreed decision;
2.
In the event of conflicting opinions by the Constitutional functionaries the opinion of
the judiciary symbolised by the view of the Chief Justice of India and formed in the manner
indicated has primacy;
3.
No appointment of any judge to the Supreme Court or any high Court can be made
unless it is in conformity with the opinion of the Chief Justice of India;
4.
The opinion of the Chief Justice of India has not mere primacy but is determinative in
the matter of transfer of High Court Judges.
Statutes Conferring Power.
Those statutes which confer power often contain certain express conditions for the
exercise of the conferred power and in the absence of or in addition to the express
conditions.
In Haridwar Singh v. Begum Sumbrui [AIR 1972] it has been held that in statutes
conferring a power to be exercised on certain conditions, the conditions prescribed are
normally held to be mandatory and a power inconsistent with those conditions is impliedly
negatived.
Similarly, when a corporation is conferred with a power, it impliedly authorises
everything which could be fairly and reasonably regarded as incidental or consequential to
the power conferred [V.T. Khanzode v. RBI, (1982); AIR (1982)].
The view of Lord ROCHE is pertinent here. He was considering the requirement that
a confession must be recorded in a manner prescribed by section 164, Criminal Procedure
Code, 1898, or not at all. He said that where a power is given to do a certain thing in a
certain way the thing must be done in that way or not at all. Other methods of performance
are necessarily forbidden [Nazir Ahmad v. King Emperor, AIR 1976].
Where statutes confer power to deprive the liberty of citizens, the conditions
prescribed for the exercise of the power, including procedural requirements, must be strictly
followed.
When powers entrusted for one purpose are deliberately used with the design of
newspapers and other documentaries, private letters may not be held included if other
documents be interpreted ejusdem generis with what goes before. But in a provision which
reads newspapers or other documents, likely to convey secrets to the enemy, the words
other documents would include document of any kind and would not take their colour form
newspaper [Jagdish Chander Gupta v. Kajaria Traders (India) Ltd., AIR 1964].
A claim for refund of tax on the ground that it has been collected by misinterpreting or
misapplying the provisions of a taxing Act or the rules and notifications made there under
has to be preferred in accordance with the provisions of the Act before the Authorities
and within the limitations specified therein and no suit is maintainable in that behalf.
Where a refund is claimed on the ground that the provision of the Act under which it was
levied is or has been held to be unconstitutional, the claim can be made by a suit or by
way of a writ petition for such a claim is outside the purview of the Act; and
A claim for refund can succeed only when the claimant establishes that he has not
passed on the burden of the tax to others.
The extent of exclusion is really a question of construction of each particular statute.
In the matters of construction, the applicable general principles are subordinated to the
actual words used by the legislature.
and
Make such incidental or consequential provisions as may be necessary to give effect to
the objects of the Proclamation.
Before the 44th Amendment Act the Article further provided that the satisfaction of the
President shall be final and conclusive and shall not be questioned in any court of law. In
State of Rajasthan v. Union of India [AIR 1977;(1977)] the Supreme Court held that if the
satisfaction of the President is based on wholly extraneous grounds which have no nexus
with the action taken, the Proclamation can be challenged in a court of law on the ground
that the President acted without the required satisfaction in issuing the Proclamation, for
satisfaction based on wholly irrelevant grounds amounts to no satisfaction. However, if there
are some grounds which bear some relevance or nexus to the action taken the sufficiency of
satisfaction cannot be challenged in a court of law.
B. Cases of Nullity:
A question is often asked, When can order passed by a tribunal or authority of
limited jurisdiction be held to be a nullity? The answer is supplied by the original or pure
theory of jurisdiction. The jurisdiction of a tribunal is determinable at the commencement of a
proceeding and if jurisdiction is properly assumed any order passed thereafter will be within
jurisdiction and conclusive though it may be erroneous in fact or law. The pure theory of
jurisdiction gave place to modern theory of jurisdiction according to which defects of
jurisdiction can arise even during or at the conclusion of a proceeding. The courts make a
distinction between jurisdictional questions of fact or law and questions of fact or law which
are not jurisdictional. If a question of fact or law is jurisdictional, the tribunal though
competent to inquire into that question cannot decide it conclusively, and a wrong
determination of such a question results in making the final decision in excess of jurisdiction.
But if a question of fact or law is non-jurisdictional, the tribunals decision is final and
conclusive. In other words, it can be said that a tribunal cannot by a wrong determination of
a jurisdictional question of fact or law exercise a power which the legislature did not confer
upon it [R. v. Shoredich Assessment Committee, (1910)]. However, in this theory the
demarcation between jurisdictional and non-jurisdictional questions of fact or law is not
clear.
1. An exclusionary clause using the formula an order of the tribunal under this Act shall not
be called in question in any court ineffective to prevent the calling in question of an order of
the tribunal if the order is really not an order under the Act but a nullity.
2. Cases of nullity may arise when there is lack of jurisdiction at the stage of
commencement of enquiry e.g., when
Authority is assumed under an ultra vires statute;
Tribunal is not properly constituted;
The subject-matter or the parties are such over which the tribunal has no authority to
inquire; and
There is want of essential preliminaries prescribed by the law for the commencement of
the inquiry.
3. Cases of nullity may also arise during the course or at the conclusion of the inquiry. These
cases are also cases of want of jurisdiction if the word jurisdiction is understood in a wide
sense. Some examples of these cases are:
When the tribunal has wrongly determined a jurisdictional question of fact or law;
When it has failed to follow the fundamental principles of judicial procedure;
When it has violated the fundamental provisions of the Act;
When it has acted in bad faith; and
When it grants a relief or makes an order which it has no authority to grant or make
OPERATION OF STATUTES
COMMENCEMENT:
Commencement of Act means the day on which the Act comes into force [Section
3(13), General Clauses Act, 1879]. Unless otherwise provided, a Central Act comes into
operation on the day it receives the Presidential Assent and is construed as coming into
operation immediately on the expiration of the day preceding its commencement [Section 5,
General Clauses Act, 1879].
A State Act comes into force on the day when the assent of the Governor or the
President, as the case may be, is first published in the Official Gazette of the State.
Unless the Act is brought into operation by Legislative enactment or by the exercise
of authority by a delegate empowered to bring it into operation, an Act cannot be said to
commence or to be in force [State of Orissa v. Chandrashekhar Singh, AIR 1970]. Power to
bring into force an Act can be exercised by the delegate even though the legislature may
have ceased to be competent to enact the Act, if it was within the competence of the
legislature at the time of its enactment [Ishwar Das v. Union of India, 1972].
The commencement of an Act is often postponed to some specified future date or to
such date as the appropriate Government may, by notification in the Official Gazette,
appoint. Sometimes different dates are also appointed for enforcement of different parts of
the same Act.
An Act which is not applicable to an area or a State cannot be applied there by
judicial fiat. But if the fact situation of the case so requires and a provision in such an Act
embodies a principle of justice, equity and good conscience, the principle so embodied may
be applied to a case arising from an area or State to which the Act originally does not extend
[Panchugopal Barua v. Umesh Chandra Goswamy, 1997; AIR 1997].
A provision in a Bill does not come into operation unless the enacting process is over
and the resulting Act containing that provision is brought into operation. However, an Act can
provide that certain provisions of a Bill on given subject will come into operation on their
introduction in the legislature.
RETROSPECTIVE OPERATION:
General Principles:
It is a cardinal principle of construction that every statute is prima facie prospective
unless it is expressly or by necessary implication made to have a 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 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
The legal pursuit of remedy, suit, appeal and second appeal are really but steps
in a series of proceedings all connected by a intrinsic unity and are to be
in force are preserved to the parties thereto till the rest of the carrier of the suit;
The right of appeal is a vested right and such a right to enter the superior court
accrues to the litigant and exists as on and from the date the lis commences and
although it may be actually exercised when the adverse judgment is pronounced,
such right is to be governed by the law prevailing at the date of the institution of
the suit or proceeding and not by the law that prevails at the date of its decision
so
provides
or
by
necessary
intendment
and
not
otherwise.
DECLARATORY STATUTES:
In the words of Craies, For modern purposes a declaratory Act may be defined as
an Act to remove doubts existing as to the common law, or the meaning or effect of any
statute. Such Acts are usually held to be retrospective. The usual reason for passing a
declaratory Act is to set aside what Parliament deems to have been a judicial error, whether
in the statement of the common law or in the interpretation of statutes. Usually, if not
invariably, such an Act contains a preamble, and also the word declared as well as
enacted [Craies; STATUTE LAW, 7th edn., p. 58].
If a statute is curative or merely declaratory of the previous law, retrospective
operation is generally intended [Channan Singh v. Jai Kaur, AIR 1970].
It is settled that an amending Act may be purely clarificatory to clear a meaning of a
provision of the principal Act which was already implicit. A clarificatory amendment of this
nature has retrospective effect and, therefore, if the principal Act was the existing law when
the Constitution came into force, the amending Act will also be part of the existing law
[Punjab Traders v. State of Punjab, AIR 1990].
PENDING PROCEEDINGS:
Alternation in matters of procedure:
As a litigant has no vested right in any matter of procedure, alterations in procedural
law are generally held to be retrospective in the sense that they apply to future as well as to
pending actions.
In Blyth v. Blyth [1966] section1 of the Matrimonial Causes Act, 1963 was construed.
This section enables rebuttal by evidence of presumption of condonation arising from martial
intercourse. This section has been held to be procedural and applicable to a pending divorce
proceeding irrespective of the date of events to which the evidence might be directed.
matter of the particular Act prior to its enforcement was being governed by the general
provisions of the earlier Act i.e., generalilaus specialia derogant. Here the operation of the
particular Act may partially repeal the general Act, or curtail its provisions or add conditions
to its operation for the particular cases.
In Ratan Lal Adukia v. Union of India [AIR 1990] section 80 of the Railways Act,
1890, which was substituted in 1961, provided for the forum where a suit for compensation
for the loss of life of, or personal injury to, a passenger or for loss, destruction, damage,
deterioration, or non-delivery of animals or goods against a railway administration could be
brought. It was held that the said section was a special provision and a self-contained Code
intended to last until the same power was exercised by B under a later enactment, the
assumption of that power by B will result in implied repeal of the earlier enactment.
E. Laws defining Offences and Penalties:
or
fee.
There
are
following
three
stages
in
the
imposition
of
tax:
pay.
statute so as to supply any deficiency. It cannot imply anything which is not expressed.
Before taxing any person it must be shown that he falls within the ambit of the charging
are ingredients of an offence, he has to be judged on the facts as he believed them to be.
For example, in R. v. Taffe [1984] when the accused smuggled a controlled drug mistakenly
believing that he was importing currency and also mistakenly believing that the import of
carrying on business in food grains without license. It was found that the accused had
applied for a license and he was under the impression that the license was issued to him
and that order of rejection of his application was not communicated to him and that he went
on sending the returns of the footing that he was a licensee to the authority concerned. The
Supreme Court acquitted the accused and held that the Act which imposed heavy penalties
could not be construed to dispense with mens rea as the object of the Act could not be
defeated on such a construction.
Sarjoo Prasad v. State of U.P. [AIR 1961]:
The Supreme Court in this case held that any person, whether employer or
employee contravening the provisions of section 7 of the Food Adulteration Act, 1954 is
liable to punishment under section 16 and it was not necessary for the prosecution to
establish that the person concerned has guilty knowledge or intention or that he knew that
the article was adulterated.
PRELIMINARY:
A constitution is an organic instrument. It is a fundamental law. Where more than one
reasonable interpretation of a constitutional provision are possible, that which would ensure
a smooth and harmonious working of the Constitution shall be accepted rather than the one
that would lead to absurdity or give rise to practical inconvenience or make well-existing
provisions of existing laws nugatory. [State of Bihar v. Kameshwar Singh, 1952; Chandra
Mohan v. State of U.P., 1966]
The Constitution must be interpreted in a broad and liberal manner giving effect to all
its parts and the presumption should be that no conflict or repugnancy was intended by its
framers. It cannot be construed in a narrow and pedantic sense and the court should be
guided with a broad and liberal spirit. [A.K. Gopalan v. State of Madras, 1950]
While interpreting the Constitution a construction most beneficial to the widest
possible amplitude must be adopted. One should give to Parliament the freedom, with in the
framework of the Constitution, to ensure that the blessings of liberty will be shared by all. It
is necessary towards that end that the Constitution should not be construed in a narrow and
pedantic sense. [Kesavanand Bharati v. State of Kerala]
Following principles have frequently been discussed by the courts while interpreting
the Constitution:
Principle of severability
Principle of eclipse
PRINCIPLE OF SEVERABILITY:
It is well-established principle that when the constitutionality of an enactment 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 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 of Alberta v. Attorney
General of Canada [1939 AC 117].
In A. K. Gopalan v. State of Madras [AIR 1980 SC 27], the Supreme Court said that
in case of repugnancy to the Constitution, only the repugnant provision of the impugned Act
will be void and not the whole of it, and every attempt should be made to save as much as
possible of the Act. If the omission of the invalid part will not change the nature or the
structure of the object of the legislature, it is severable.
In State of Bombay v. F. N. Balsara [AIR 1951 SC 318], the eight sections of the
Bombay Prohibition Act, 1949 were declared invalid by the court on the ground that they
were violative of certain fundamental rights. The Supreme Court held that the parts declared
PRINCIPLE OF ECLIPSE:
According to Article 13(1) of the Constitution all laws in force in the territory of India
immediately before the commencement of this Constitution, in so far as they are
inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be
void. Article 13 (2) of the Constitution says that the State shall not make any law which takes
away or abridges the rights conferred by this part and any law made in contravention of this
clause shall, to the extent of the contravention, be void.
In State of Bombay v. F. N. Balsara [AIR 1951 SC 318], eight sections of a preconstitution legislation, the Bombay Prohibition Act, 1949, were held to be unconstitutional in
view of Article 13 (1) in so far as they prohibited possession, use and consumption of
medicinal preparations which was violative of Article 19 (1) (f) of the Constitution.
In Saghir Ahmad v. State of Uttar Pradesh [AIR 1955 SC 728], the constitutionality of
the Uttar Pradesh Road Transport Act, 1951 was in question. The Supreme Court held it to
be violative of Article 19 (1) (g) and hence void under Article 13 (2) observing that an
unconstitutional law is a dead law incapable of being vitalized by a constitutional
amendment removing the fetters, and that the only course open is its re-enactment.
In Bikhaji Narain Dhakras v. State of Madhya Pradesh [AIR 1955 SC 781], section 43
of the Motor Vehicles Act, 1939 was amended by the Central Provinces and Berar Motor
Vehicles (Amendment) Act, 1947, both being pre-constitution legislations. The Amendment
Act empowered the Provincial Government to take up the entire Provincial motor transport
business, and it could run it either in competition with motor transport operator or excluded
them totally from this with the coming into being of the Constitution, these became
unconstitutional as violative of Article 19 (1) (g). By a constitutional amendment of Article 19
(6) on June 18, 1951 the State was empowered to carry on the business to the notification
issued by the government to this effect was questioned. The respondent government argued
that from January 26, 1950 to June 18, 1951 section 43 remained void, but the amendment