INTERPRETATION OF STATUTES

(K-6001)

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Q. Discuss the rules of statutary interpretation with the help of decided cases. Explain - Literal
Rule, Mischief Rule (Rule in Haydon's case), Golden Rule, Rule of Harmonious Construction,
Nosciur a sociis, Ejusdem generis, Reddendo singular singulis. State the circumstances when
these rules are applied by the courts.

Introduction
Statutory interpretation is the process of interpreting and applying legislation to decide cases.
Interpretation is necessary when case involves suble or ambiguous aspects of a statute. Generally, the
words of a statute have a plain and straightforward meaning. But in some cases, there may be
ambiguity or vagueness in the words of the statute that must be resolved by the judge. The reason for
ambiguity or vagueness of a legislation is the fundamental nature of language. It is not always
possible to precisely transform the intention of the legislature into written words. Interpreting a
statute to determine whether it applies to a given set of facts often boils down to analyzing whether a
single word or short phrase covers some element of the factual situation before the judge. The
expansiveness of language necessarily means that there will often be equally good or equally
unconvincing arguments for two competing interpretations. A judge is then forced to resort to
documentation of legislative intent, which may also be unhelpful, and then finally to his or her own
judgment of what outcome is ultimately fair and logical under the totality of the circumstances. To
find the meanings of statutes, judges use various tools and methods of statutory interpretation,
including traditional canons of statutory interpretation, legislative history, and purpose. In common
law jurisdictions, the judiciary may apply rules of statutory interpretation to legislation enacted by
the legislature or to delegated legislation such as administrative agency regulations.

Over time, various methods of statutory interpretation and construction have fallen in and out of
favor. Some of the important rules of statutary interpretation are:

1. Primary Rules -
1. Literal Rule (aka Plain Meaning Rule) - It means that statutes are to be interpreted
using the ordinary meaning of the language of the statute unless a statute explicitly
defines some of its terms otherwise. In other words, the law must be read, word for
word, and it should not divert from its true meaning.
 2. Mischief rule - This rule attempts to determine the legislator's intention. Originating
from a 16th century case in the United Kingdom, its main aim is to determine the
"mischief and defect" that the statute in question has set out to remedy, and what
ruling would effectively implement this remedy. Smith vs. Hughes [1960] 2 All
E.R. 859
3. Golden rule - It is a compromise between the plain meaning (or literal) rule and the
mischief rule. Like the plain meaning rule, it gives the words of a statute their plain,
ordinary meaning. However, when this may lead to an irrational result that is unlikely
to be the legislature's intention, the judge can depart from this meaning. In the case of
homographs, where a word can have more than one meaning, the judge can choose
the preferred meaning. If the word only has one meaning, and applying this meaning
would lead to a bad decision, the judge can apply a completely different meaning.
4. Rule of Harmonious Construction - when there are two provisions in a statute,
which are in conflict with each other, they should be interpreted such that effect can
be given to both and the construction which renders either of them inoperative and
useless should not be adopted except in the last resort. Bengal immunity Co. vs.
State of Bihar (1955) 6 STC 446 (SC).
2. Secondary Rules -
1. Noscitur a sociis - When a word is ambiguous, its meaning may be determined by
reference to the rest of the statute.
2. Ejusdem Generis - When a list of two or more specific descriptors are followed by
more general descriptors, the otherwise wide meaning of the general descriptors must
be restricted to the same class, if any, of the specific words that precede them e.g.
vehicles in "cars,motorbikes,motor powered vehicles" would be interpreted in a
limited sense and therefore cannot be interpreted as including air planes.
3. Reddendo Singula Singulis - When a list of words has a modifying phrase at the end,
the phrase refers only to the last word, e.g., firemen, policemen, and doctors in a
hospital. Here,"in a hospital" only applies to doctors and not to firemen or policemen.

Literal Rule

A statues often contains a "definitions" section, which explicitly defines the most important terms
used in that statute. However, some statutes omit a definitions section entirely, or fail to define a
particular term. The literal rule, which is also known as the plain meaning rule, attempts to guide
courts faced with litigation that turns on the meaning of a term not defined by the statute, or on that
of a word found within a definition itself. According to this rule, when a word does not contain any
definition in a statute, it must be given its plain, ordinary, and literal meaning. If the word is clear, it
must be applied, even though the intention of the legislature may have been different or the result is
harsh or undesirable. The literal rule is what the law says instead of what the law means. This is the
oldest of the rules of construction and is still used today, primarily because judges are not supposed
to legislate. As there is always the danger that a particular interpretation may be the equivalent of
making law, some judges prefer to adhere to the law's literal wording.

When the words of a Statute are clear, plain or unambiguous, i.e. they are reasonably susceptible to
only one meaning, the courts are bound to give effect to that meaning irrespective of consequences.
In J. P. Bansal v. State of Rajasthan 2003, SC observed that the intention of the legislature is
primarily to be gathered from the language used, which means that attention should be paid to what
has been said as also to what has not been said. As a consequence, a construction which requires for
its support, addition, substitution, or removal of words or which results in rejection of words as
meaningless has to be avoided. This is accordance with the case of Crawford vs Spooner, 1846,
where privy council noted that the courts cannot aid the legislature's defective phrasing of an Act,
they cannot add or mend, and by construction make up for deficiencies which are left there.

In Kannailala Sur vs Parammindhi Sadhu Khan 1957, J Gajendragadkar says that if the words
used in statute are capable of only one construction then it is not open to the courts to adopt any other
hypothetical construction on the ground that such construction is more consistent with the alleged
objective and policy of the act.

In M V Joshi vs M V Shimpi, AIR 1961, relating to Food and Adulteration Act, it was contented
that the act does not apply to butter made from curd. However, SC held that the word butter in the
said act is plain and clear and there is no need to interpret it differently. Butter is butter whether
made from milk or curd.

Thus, when the language of a provision is plain and clear, court cannot enlarge the scope of the
provision by interpretive process. Further, a construction which requires for its support addition of
words or which results in rejection of words as meaningless has to be avoided
Advantages

1. Proponents of the plain meaning rule claim that it prevents courts from taking sides in
legislative or political issues.
2. They also point out that ordinary people and lawyers do not have extensive access to
secondary sources and thus depending on the ordinary meaning of the words is the safest
route.
3. It encourages precision in drafting.

Disadvantages

1. Opponents of the plain meaning rule claim that the rule rests on the erroneous assumption
that words have a fixed meaning. Words are imprecise, leading justices to impose their own
prejudices to determine the meaning of a statute. However, since little else is offered as an
alternative discretion-confining theory, plain meaning survives.
2. Sometimes the use of the literal rule may defeat the intention of Parliament. For instance, in
the case of Whiteley vs Chappel (1868; LR 4 QB 147), the court came to the reluctant
conclusion that Whiteley could not be convicted of impersonating "any person entitled to
vote" at an election, because the person he impersonated was dead. Using a literal
construction of the relevant statutory provision, the deceased was not "a person entitled to
vote." This, surely, could not have been the intention of Parliament. However, the literal rule
does not take into account the consequences of a literal interpretation, only whether words
have a clear meaning that makes sense within that context. If Parliament does not like the
literal interpretation, then it must amend the legislation.
3. It obliges the courts to fall back on standard common law principles of statutory
interpretation. Legislation is drawn up with these principles in mind. However, these
principles may not be appropriate to constitutional interpretation, which by its nature tends to
lay down general principles. It is said that it seems wrong to parcel the Constitution as if it
were a Finance Act.
4. Clearly, the literal approach has another disadvantage in that one judge‘s literal interpretation
might be very different from another‘s. Casey says: ―What may seem plain to one judge may
seem perverse and unreal to another.‖
5. It ignores the limitations of language.
 6. To place undue emphasis on the literal meaning of the words is to assume an unattainable
perfection in draftsmanship.
7. Judges have tended excessively to emphasise the literal meaning of statutory provisions
without giving due weight to their meaning in wider contexts.

Mischief Rule

The Mischief Rule is used by judges in statutory interpretation in order to discover legislature's
intention. It essentially asks the question: By creating an Act of Parliament what was the "mischief"
that the previous or existing law did not cover and this act covers. This rule was developed by Lord
Coke in Sir John Heydon's Case, 1584, where it was stated that there were four points to be taken
into consideration when interpreting a statute:

1. What was the common law before the making of the act?
2. What was the "mischief or defect" for which the common law did not provide?
3. What remedy the parliament hath resolved and appointed to cure the disease of the
commonwealth?
4. What is the true reason of the remedy?

The application of this rule gives the judge more discretion than the literal and the golden rule as it
allows him to effectively decide on Parliament's intent. Legislative intent is determined by
examining secondary sources, such as committee reports, treatises, law review articles and
corresponding statutes. The rule was further illustrated in the case of Smith v Hughes, 1960, where
under the Street Offences Act 1959, it was a crime for prostitutes to "loiter or solicit in the street for
the purposes of prostitution". The defendants were calling to men in the street from balconies and
tapping on windows. They claimed they were not guilty as they were not in the "street." The judge
applied the mischief rule to come to the conclusion that they were guilty as the intention of the Act
was to cover the mischief of harassment from prostitutes.
To that end, let me suggest an analogy. An inventor of useful household devices dies leaving the
pencil sketch of an invention on which he was working at the time of his death. On his death bed he
requests his son to continue work on the invention, though he dies without having had a chance to
tell the son what purpose the invention was to serve or any thing about this compliance for
completing it. In carrying out his father‘s wish the son‘s first two step would be to decide what the
purpose of the projected invention was, what defect of insufficiency of existing devices. It was
indented to remedy. He would then try to grasp the underline principle of the projected invention,
the true reason of the remedy in the language of Heydon‘s case. With these problems solved he
would then proceed to work out what was the essentials to complete the design for the projected
device.
Let us now ask of the son‘s action questions of the sort commonly asked concerning the
interpretation of the statutes. Was the son faithfull to his father‘s invention? If we mean, ―Did he
carry out an intention the father had actually formed concerning the manner of
completing the design‖? Why, of course, the question is quiet unanswerable for we do not know
whether the father had any such intention, and if so, what it was? If we mean, ―Did he remain in the
framework said by the father, accepting the father conceptions of a need for the projected device and
his father‘s general approach to the problem of supplying that need?‖ then the answer, on the facts
supposed, if yes. If the son were able to call on his father‘s spirit for hell, the chances are that this
help would take the form of collaborating with the son in the solution of a problem, the father had
left unsolved. So it is usually, with difficult problems of a interpretation. If the draftsman of a statute
were called in to direct consultation, he would normally have to proceed in the same manner as the
judge by asking such questions as the following :

Does this case fall within the mischief which the statute sought to remedy? Does it fall with the true
reason of the remedy appointed by the statute, i.e., is the prescribed remedy opt for dealing with this
particular manifestation of the general mischief at which the statute was aimed?

This rule is of narrower application than the golden rule or the plain meaning rule, in that it can only
be used to interpret a statute and only when the statute was passed to remedy a defect in the common
law. This rule has often been used to resolve ambiguities in cases in which the literal rule cannot be
applied. As seen In Smith v Hughes, the mischief approach gave a more sensible outcome than that
of the literal approach.

Advantages

1. The Law Commission sees it as a far more satisfactory way of interpreting acts as opposed to
the Golden or Literal rules.
2. It usually avoids unjust or absurd results in sentencing

Disadvantages
 1. It is 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.
2. It gives too much power to the unelected judiciary which is argued to be undemocratic.
3. 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, however, such is not
the case any more.

Golden Rule

This rule of statutory interpretation allows a shift from the ordinary sense of a word(s) if the overall
content of the document demands it. This rule is a modification of the literal rule. It states that if the
literal rule produces an absurdity, then the court should look for another meaning of the words to
avoid that absurd result. The rule was evolved by Parke B (who later became Lord Wensleydale)
in Becke v Smith, 1836 and in Grey v Pearson, 1857, who stated, "The grammatical and ordinary
sense of the words is to be 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 the absurdity and inconsistency, but no farther."

It is a very useful rule in the construction of a statute as it allows to adhere to the ordinary meaning
of the words used, and to the grammatical construction, unless that is at variance with the intention
of the legislature to be collected from the statute itself, or leads to any manifest absurdity or
repugnance, in which case it allows the language to be varied or modified so as to avoid such
inconvenience.

This rule may be used in two ways. It is applied most frequently in a narrow sense where there is
some ambiguity or absurdity in the words themselves. For example, imagine there may be a sign
saying "Do not use lifts in case of fire." Under the literal interpretation of this sign, people must
never use the lifts, in case there is a fire. However, this would be an absurd result, as the intention of
the person who made the sign is obviously to prevent people from using the lifts only if there is
currently a fire nearby. This was illustrated in the case of Lee vs Knapp 1967 QB where the
interpretation of the word "stop" was involved. Under Road Traffic Act, 1960, a person causing an
accident "shall stop" after the accident. In this case, the driver stopped after causing the accident and
then drove off. It was held that the literal interpretation of the word stop is absurd and that the
requirement under the act was not fulfilled because the driver did not stop for a reasonable time so
that interested parties can make inquiries from him about the accident.

The second use of the golden rule is in a wider sense, to avoid a result that is obnoxious to principles
of public policy, even where words have only one meaning. Bedford vs Bedford, 1935, is another
interesting case that highlighted the use of this rule. It concerned a case where a son murdered his
mother and committed suicide. The courts were required to rule on who then inherited the estate, the
mother's family, or the son's descendants. The mother had not made a will and under the
Administration of Justice Act 1925 her estate would be inherited by her next of kin, i.e. her son.
There was no ambiguity in the words of the Act, but the court was not prepared to let the son who
had murdered his mother benefit from his crime. It was held that the literal rule should not apply and
that the golden rule should be used to prevent the repugnant situation of the son inheriting. The court
held that if the son inherits the estate that would amount to profiting from a crime and that would be
repugnant to the act.

Thus, the Golden rule implies that if a strict interpretation of a statute would lead to an absurd result
then the meaning of the words should be so construed so as to lead to the avoidance of such
absurdity. A further corollary to this rule is that in case there are multiple constructions to effect the
Golden rule the one which favors the assessee should always be taken. This rule is also known as the
Rule of Reasonable Construction.

Advantages

1. This rule prevents absurd results in some cases containing situations that are completely
unimagined by the law makers.
2. It focuses on imparting justice instead of blindly enforcing the law.

Disadvantages

1. The golden rule provides no clear means to test the existence or extent of an absurdity. It
seems to depend on the result of each individual case. Whilst the golden rule has the
 advantage of avoiding absurdities, it therefore has the disadvantage that no test exists to
determine what is an absurdity.
2. This rule tends to let the judiciary overpower the legislature by applying its own standards of
what is absurd and what it not.

The purposive approach

This approach has emerged in more recent times. Here the court is not just looking to see what the
gap was in the old law, it is making a decision as to what they felt Parliament meant to achieve. Lord
Denning in the Court of Appeal stated in Magor and St. Mellons Rural District Council v
Newport Corporation, 1950, "we sit here to find out the intention of Parliament and of ministers
and carry it out, and we do this better by filling in the gaps and making sense of the enactment by
opening it up to destructive analysis".

This attitude was criticised on appeal by the House of Lords. Lord Simmons called this approach "a
naked usurpation of the legislative function under the thin disguise of interpretation". He went on to
say that if a gap is disclosed, the remedy lies in an amending Act..

These comments highlight one issue with the purposive approach. How Parliament's intentions can
be determined and whether judges should really be refusing to follow the clear words of Parliament.
The purposive approach is one used by most continental European countries when interpreting their
own legislation. It is also the approach which is taken by the European Court of Justice in
interpreting EU law.

Since the United Kingdom became a member of the European Economic Community in 1973, the
influence of the European preference for the purposive approach has affected the English courts in a
number of ways. First, the courts have been required to accept that, from 1973, the purposive
approach has to be used when deciding on EU matters. Second, as they use the purposive approach
for EU law they are becoming accustomed to using it and more likely to use it to interpret domestic
law. One example is Pickstone v Freemans plc (1998). Here, women warehouse operatives were paid
the same as male warehouse operatives. However, Miss Pickstone claimed that the work of the
warehouse operatives was of equal value to that done by male warehouse checkers who were paid
£1.22 per week more than they were. The employers argued that a woman warehouse operative was
employed on like work to the male warehouse operatives, so she could not bring a claim under
section 1(2) (c) of the 1970 statute for work of equal value. This was a literal interpretation of the
1970 statute. The House of Lords decided that the literal approach would have left the United
Kingdom in breach of its treaty obligations to give effect to an EU directive. It therefore used the
purposive approach and stated that Miss Pickstone was entitled to claim on the basis of work of
equal value even though there was a male employee doing the same work as her.

Noscitur a Sociis

Noscere means to know and sociis means association. Thus, Noscitur a Sociis means knowing from
association. Thus, under the doctrine of "noscitur a sociis" the questionable meaning of a word or
doubtful words can be derived from its association with other words within the context of the phrase.
This means that words in a list within a statute have meanings that are related to each other. If
multiple words having similar meaning are put together, they are to be understood in their collective
meaning. According to Maxwell, "this rule means that when two or more words susceptible to
analogous meaning are clubbed together, they are understood to be used in their cognate sense. They
take as it were their colour from each other, i.e. the more general is restricted to a sense analoguous
to a less general".

This doctrine is broader than the doctrine of ejusdem generis because this rule puts the words in
context of the whole phrase and not just in relation to the nearby words. The language of the phrase
can be used as a guide to arrive at the true meaning of the word. This rule is illustrated in Foster v
Diphwys Casson (1887) 18 QBD 428, involving a statute which stated that explosives taken into a
mine must be in a "case or canister". Here the defendant used a cloth bag. The courts had to consider
whether a cloth bag was within the definition. Under Noscitur a sociis, it was held that the bag could
not have been within the statutory definition, because parliament's intention was refering to a case or
container of the same strength as a canister.

In State of Assam vs R Muhammad AIR 1967, SC made use of this rule to arrive at the meaning
of the word "posting" used in Article 233 (1) of the Constitution. It held that since the word "posting"
occurs in association with the words "appointment" and "promotion", it took its colour from them
and so it means "assignment of an appointee or a promotee to a position" and does not mean transfer
of a person from one station to another.

Noscitur a sociis is only a rule of construction and it cannot be used when it is clear that the word
with wider meaning is deliberately used in order to increase the scope. It can only be used when the
intention of the legislature in using a word with wider sense along with the words with narrower
meaning is not clear. Further, this rule can only be used when the associated words have analogous
meaning. It cannot be used when the words have disjoint meanings. For example, in the case of
Lokmat Newspapers vs Shankarprasad AIR 1999, it was held that the words "discharge" and
"dismissal" do not have the same analogous meaning and so this rule cannot be applied.

Ejusdem Generis

The ejusdem generis, or ‗of the same genus‘ rule, is similar though narrower than the more general
rule of noscitur a sociis. It operates where a broad or open-ended term appears following a series of
more restrictive terms in the text of a statute. Where the terms listed are similar enough to constitute
a class or genus, the courts will presume, in interpreting the general words that follow, that they are
intended to apply only to things of the same genus as the particular items listed. According to this
rule, when particular words pertaining to a class or a genus are followed by general words, the
general words are construed as limited to the things of the same kind as those specified by the class
or the genus. The meaning of an expression with wider meaning is limited to the meaning of the
preceeding specific expressions. However, for this rule to apply, the preceeding words must for a
specific class or genus. Further, this rule cannot be applied in the words with a wider meaning appear
before the words with specific or narrow meaning. In UP State Electricity Board vs Harishankar,
AIR 1979, SC held that the following conditions must exist for the application of this rule –

1. The statue contains an enumeration of specific words

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

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

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

5. There is no indication of a different legislative intent

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

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

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

This rule also covers The rank principle, which goes as follows - Where a string of items of a
certain rank or level is followed by general residuary words, it is presumed that the residuary words
are not intended to include items of a higher rank than those specified. By specifiying only items of
lower rank the impression is created that higher ranks are not intened to be covered. If they were,
then their mention would be expected a fortiori. For example, the phrase "tradesman, artificer,
workman, labourer, or other person whatsoever" was held not to include persons above the artisan
class. Similarly, the phrase "copper, brass, pewter, and tin, and all other metals" in a local Act of
1825 was held not to include precious metals such as gold and silver.

Reddendo Singula Singulis

The reddendosingulasingulis principle concerns the use of words distributively. Where a complex
sentence has more than one subject, and more than one object, it may be the right construction to
render each to each, by reading the provision distributively and applying each object to its
appropriate subject. A similar principle applies to verbs and their subjects, and to other parts of
speech. A typical application of this principle is where a testator says 'I devise and bequeath all my
real and personal property to B'. The term devise is appropriate only to real property. The term
bequeath is appropriate only to personal property. Accordingly, by the application of the principle
reddendo singular singulis, the testamentary disposition is read as if it were worded 'I devise all my
real property, and bequeath all my personal property, to B'.

This rule has been applied in the case of Koteshwar Vittal Kamatvs K Rangappa Baliga, AIR
1969, in the construction of the Proviso to Article 304 of the Constitution which reads, "Provided
that no bill or amendment for the purpose of clause (b), shall be introduced or moved in the
legislature of a state without the previous sanction of the President". It was held that the word
introduced applies to bill and moved applies to amendment.

Q. 5 Explain – Generalia specialibus non derogant, utres magis valeat quan pareat, expressum
facit cessare tacitum, Generalia specialibus non derogant.

Where there is a special provision specifically dealing with a subject, a general provision, howsoever
widely worded must yield to the former. This principle is expressed by the maxim Generalia
specialibus non derogant.

The aforesaid rule of construction was applied by the Supreme Court in Venkataramana Devaru Vs
State of Mysore, AIR 1958. In that case the Supreme Court applied the rule to resolve conflict
between Article 25 (2)(b) and 26 (b) of the Constitution. It was held that the right of every religious
denomination or any Section thereof to manage its own affairs in matter of religion is subject to a
law made by a State providing for social welfare and reform or throwing open of Hindu religious
institution of a public character to all classes and sections of Hindus.

Article 25. (1) Subject to public order, morality and health and to the other provisions of this Part, all
persons are equally entitled to freedom of conscience and the right freely to profess, practise and
propagatereligion.
(2) Nothing in this article shall affect the operation of any existing law or prevent the State from
makinganylaw—

(a) regulating or restricting any economic, financial, political or other secular activity which may be
associated with religious practice;
(b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a
public character to all classes and sections of Hindus.

Article 26. Subject to public order, morality and health, every religious denomination or any section
thereof shall have the right—
a) to establish and maintain institutions for religious and charitable purposes;
(b) to manage its own affairs in matters of religion;
(c) to own and acquire movable and immovable property; and
(d) to administer such property in accordance with law.

In State of Gujarat Vs. Ramji Bhai, AIR 1979 Supreme Court taking note of the principle
observed as follows:

― Generalia Specialibus non derogant is a cardinal principle of interpretation. It means that the
general provisions must always yield to the special provisions. Construed in accordance with this
fundamental principle, the special class of unregistered dealer covered by Section 33 (6) must be
taken to have been excluded from the purview of the general provisions in Section 35. Thus
considered, it is clear that the case of an unregistered dealer who evades tax by committing the
double default specified in Section 33(6), action can be taken only under that Section and not under
Section 35‖.

Thus, it is well settled that if a special provision is made on a certain matter, that matter is excluded
from the general provision. In the event of conflict between a general and a special provision, the
latter must prevail. Differently stated the principle is that general words in a Statute should not be
held to repeal or rip up a specific provision upon a particular matter. A general rule though stated in
wide terms must be taken to be not interfering with matters covered by a special provision.

In South India Corporation (P) Ltd. Vs Secretary, Board of Revenue, Trivendrum AIR 1964, it
was held that the general provision under Article 372 of the Constitution regarding continuance of
existing laws is subject to Article 277 of the Constitution, which is a special provision relating to
taxes, duties, cesses or fees lawfully levied at the commencement of the Constitution. In this regard
the Supreme Court observed as follows:-―With this background let u now consider the following two
questions raised before us:
(i) whether Article 372 of the Constitution is subject to Article 277 thereof; and
(ii) whether Article 372 is subject to Article 278 thereof. Article 372 is a general provision‘; and
Article 277 is a special provision.
It is settled law that special provision should be given effect to the extent of its scope, leaving the
general provision to control cases where the special provision does not apply. The earlier discussion
makes it abundantly clear that the constitution gives a separate treatment to the subject of finance and
Article 277 saves the existing taxes etc. levied by states, if the conditions mentioned therein are
complied with. While Article 372 saves all pre-Constitution valid laws, Article 277 is confined only
to taxes, duties, cesses or fees lawfully levied immediately before the Constitution. Therefore,
Article 372 cannot be construed in such a way as to enlarge the scope of the savings of taxes, duties,
cesses or fees. To state it differently, Article 372 must be read subject to Article 277. We have
already held that an agreement can be entered into between the Union and the States in terms of
Article 278 abrogating or modifying the power preserved to the State under Article 277‖.

In Gujarat State Co-operative Land Development Bank Vs P.R. Mankad, (1979), the Supreme
Court applying the maxim generalia specialibus non-derogant held that a general provision must
yield to the special provision. Lord Hobhouse in Barker Vs Edgar (1898) AC 749 opined that
when the legislature had given its consent to a separate subject and made provision for it, the
presumption is that a subsequent general enactment is not intended to interfere with the special
provision unless it manifests that intention very clearly.

Ut res magis valeat quam pereat

Literal meaning - Such a construction is to be made that lets the thing have effect rather than let it
fail. Aka Rule of Effectiveness.

Avtar Singh vs State of Punjab, AIR 1955 SC 1107 166 - Appellant was convicted of theft of
electricity under Section 39 of Electricity Act, 1990. He contented that the proceeding were illegal
because they were not initiated by any of the persons as mandated by Section 50 of the act. It was
held that under this principle, the requirement of Section 50 should be given effect.

Corporation of Calcutta vs Liberty Cinema, AIR 1965 SC 661 170 -

Under a. 413 of the Calcutta Municipal Act, 1951, no person shall without a license granted by the
Corporation of Calcutta, keep open any cinema house for public amusement in Calcutta. Under s.
548(2), for every license under the Act, a fee may be charged at such rate as may from time to time
be fixed by the Corporation. In 1948, the appellant (Corporation) fixed fees on the basis of annual
valuation of the cinema house. The respondent, who was the owner and licensee of a cinema theater,
had been paying a license fee of Rs. 400 per year on that basis. In 1958, the appellant, by a
Resolution, changed the basis of assessment of the fee.

Under the new method the fee was to be assessed at rates prescribed per show according to the
sanctioned seating capacity of the cinema house; and the respondent had to pay a fee of Rs. 6,000 per
year. The respondent, therefore moved the High Court for the issue of a writ quashing the resolution
and the application was allowed.

In the appeal to the Supreme Court the appellant contended that (i) the levy was a tax and not a fee in
return for services and (ii) s. 548(2) does not suffer from the vice of excessive delegation; While the
respondent contended that (i) the levy was a fee in return for services to be rendered and not a tax,
and as it was not commensurate with the costs incurred by the Corporation in providing the services,
the levy was invalid; (ii) if s. 548 authorized the levy of a tax, as distinct from a fee in return for
service rendered, it was invalid, as it amounted to an illegal delegation of legislative functions to the
appellant to fix the amount of a tax without any guidance for the purpose and (iii) the levy was
invalid as violating Art. 19(1) (f) and (g) of the Constitute.

HELD (per Sarkar, RaghubarDayal and Mudholkar JJ) : (i) The was not a fee but a tax.

The word "fee" in s. 548 must be read as referring to a tax as any other reading would make the
section invalid, and in interpreting a statute, it ought to be made valid if possible.

Expressum facit cessare tacitum

That which is expressed makes that which is implied to cease (that is, supersedes it, or controls its
effect). Thus, an implied covenant in a deed is in all cases controlled by an express covenant. Where
a law sets down plainly its whole meaning the court is prevented from making it mean what the court
pleases.
Q. What do you understand by Strict Construction? If there is an ambiguity in a word in a
penal statute, what interpretation should be given and why? Explain why a taxing statute
should be strictly constructed?

Strict Construction

Strict construction refers to a particular legal philosophy of judicial interpretation that limits or
restricts judicial interpretation. Strict construction requires the court to apply the text as it is written
and no further, once the meaning of the text has been ascertained. That is, court should avoid
drawing inference from a statute or constitution. It is important to note that court may make a
construction only if the language is ambiguous or unclear. If the language is plain and clear, a judge
must apply the plain meaning of the language and cannot consider other evidence that would change
the meaning. If, however, the court finds that the words produce absurdity, ambiguity, or a literalness
never intended, the plain meaning does not apply and a construction may be made. Strict
construction occurs when ambiguous language is given its exact and technical meaning, and no other
equitable considerations or reasonable implications are made. Strict construction is the opposite of
liberal construction, which permits a term to be reasonably and fairly evaluated so as to implement
the object and purpose of the document.

Applicability in Penal Statutes

A Penal Statute must be constructed strictly. This means that a criminal statute may not be enlarged
by implication or intent beyond the fair meaning of the language used or the meaning that is
reasonably justified by its terms. It is fundamentally important in a free and just society that Law
must be readily ascertainable and reasonably clear otherwise it is oppressive and deprives the citizen
of one of his basic rights. An imprecise law can cause unjustified convictions because it would not be
possible for the accused to defend himself against uncertainties. Therefore, an accused can be
punished only if his act falls clearly into the four corners of the law without resorting to any special
meaning or interpretation of the law. For example, in Seksaria Cotton Mills vs State of Bombay,
1954, SC held that in a penal statute, it is the duty of the Courts to interpret the words of ambiguous
meaning in a broad and liberal sense so that they do not become traps for honest unlearned and
unwary men. If there is honest and substantial compliance with an array of puzzling directions that
should be enough, even if on some hyper critical view of the law other ingenious meanings can be
devised.
If a penal provision is capable of two reasonably possible constructions, then the one that exempts
the accused from penalty must be used rather than the one that does not. Whether a particular
construction achieves the intention of the statute or not is not up to the court to think about in case of
penal statutes. It is not apt for the court to extend the scope of a mischief and to enlarge the penalty.
It is not competent for the court to extend the meaning of the words to achieve the intention of the
legislature. If a penal provision allows accused to go scot-free because of ambiguity of the law, then
it is the duty of the legislature and not of the courts to fix the law. Unless the words of a statute
clearly make an act criminal, it cannot be construed as criminal. Chinubhaivs 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.

Applicability in Taxing Statutes

Tax is the money collected from the people for the purposes of public works. It is a source of
revenue for the government. It is the right of the govt to collect tax according to the provisions of the
law. No tax can be levied or collected except by the authority of law. In general, legislature enjoys
wide discretion in the matter of taxing statutes as long as it satisfies the fundamental principle of
classification as enshrined in Article 14. A person cannot be taxed unless the language of the statute
unambiguously imposes the obligation without straining itself. In that sense, there is no reason why
a taxing statute must be interpreted any differently from any other kind of statute. Indeed, SC, in the
case of CIT vs ShahazadaNand and Sons, 1966, observed that the underlying principle is that the
meaning and intention of a statute must be collected from the plain and unambiguous expression
used therein rather than any notions which be entertained by the Courts as to what is just or
expedient. In construing a statutory provision the first and foremost rule of construction is the literary
construction. All that the court has to see at the very outset is what does the provision say. If the
provision is unambiguous and if from the provision the legislative intent is clear, the court need not
call into aid the other rules of construction of statutes. The other rules of construction are called into
aid only when the legislative intent is not clear.

Lord Russel in Attorney General vs Calton Ban, 1989, illustrated categorically as, "I see no reason
why special canons of construction should be applied to any act of parliament and I know of no
authority for saying that a taxing statute is to be construed differently from any other act."

However, as with any statute, a fiscal or taxing statute is also susceptible to human errors and
impreciseness of the language. This may cause ambiguity or vagueness in its provisions. It is in such
cases, the task of constructing a statute becomes open to various methods of construction. Since a
person is compulsorily parted from his money due to tax, imposition of a tax is considered a type of
imposition of a penalty, which can be imposed only if the language of the provision unequivocally
says so. This means that a taxing statute must be strictly constructed. 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. - "In a taxing statute one has to look merely at what is clearly said.
There is no room for any intention. 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." If
by any reasonable meaning of the words, it is possible to avoid the tax, then that meaning must be
chosen. There is no scope for any inference or induction in constructing a taxing statute. There is no
room for suppositions as to ―spirit‖ of the law or by way of ―inference‖. When the provision is
reasonably open to only one meaning then it is not open to restrictive construction on the ground that
the levy of tax, is oppressive, disproportionate, unreasonable or would cause hardship. There is no
room for such speculation. The language must be explicit. Similarly, penalty provision in a taxing
statute has to be specifically provided and cannot be inferred.

In A. V. Fernandesvs State of Kerala, AIR 1957, the Supreme Court stated the principle that if the
revenue satisfies 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 does not fall within the four corners of the provisions of the
taxing statute, no tax can be imposed by inference or by analogy or by trying to probe into the
intentions of the Legislature and by considering what was the substance of the matter.

This does not mean that equity and taxation are complete strangers. For example, in the case of CIT
vs J H KotlaYadgiri, 1985, SC held that since the income from business of wife or minor child is
includable as income of the assessee, the profit or loss from such business should also be treated as
the profit or loss from a businesss carried on by him for the purpose of carrying forward and set-off
of the loss u/s. This interpretation was based on equity. However, it does not permit any one to take
the benefit of an illegality. This is illustrated in the case of CIT vs Kurji Jinabhai Kotecha, AIR
1977, where Section .24(2) of IT Act was constructed as not to permit assessee to carry forward the
loss of an illegal speculative business for setting it off against profits in subsequent years. This
proves that even a taxing statute should be so construed as to be consistent with morality avoiding aa
result that gives recognition to continued illegal activities or benefits attached to it.

The rule of strict construction applies primarily to charging provisions in a taxing statute and has no
application to a provision not creating a charge but laying down machinery for its calculation or
procedure for its collection. Thus, strict construction would not come in the way of requiring a
person claiming an exemption. The provisions of exemptions are interpreted beneficially.

Q. What do you understand by Beneficial Construction? Explain the statement, "Beneficial

construction is a tendency rather than a rule".

A general rule of interpretation is that if a word used in a statute excludes certain cases in its
common meaning, it should not be constrained unnecessarily to include those cases. An exception to
this rule is that when the objectives of the statute are not met by excluding the cases, then the word
may be interpreted extensively so as to include those cases. However, when a word is ambiguous i.e.
if it has multiple meanings, which meaning should be understood by that word? This is the
predicament that is resolved by the principle of Beneficial Construction. When a statute is meant for
the benefit of a particular class, and if a word in the statute is capable of two meanings, one which
would preserve the benefits and one which would not, then the meaning that preserves the benefit
must be adopted. It is important to note that omissions will not be supplied by the court. Only when
multiple meanings are possible, can the court pick the beneficial one. Thus, where the court has to
choose between a wider mean that carries out the objective of the legislature better and a narrow
meaning, then it usually chooses the former. Similarly, when the language used by the legislature
fails to achieve the objective of a statute, an extended meaning could be given to it to achieve that
objective, if the language is fairly susceptible to the extended meaning. This is quite evident in the
case of B Shah vs Presiding Officer, AIR 1978, where Section 5 of Maternity Benefits Act, 1961
was is question, where an expectant mother could take 12 weeks of maternity leave on full salary. In
this case, a women who used to work 6 days a week was paid for only 6x12=72 days instead of
7x12=84 days. SC held that the words 12 weeks were capable of two meanings and one meaning was
beneficial to the woman. Since it is a beneficial legislation, the meaning that gives more benefit to
the woman must be used.
It is said by MAXWELL, that 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. SC held that the enactment being a welfare legislation for the workers, it had to be
beneficially constructed in the favor of worker and thus, if the words are capable of two meanings,
the one that gives benefit to the workers must be used.

BENIFICIAL CONSTRUCTION

Introduction

Beneficial construction is also known as liberal construction. It means interpretation of a statute in

the widest possible meaning of the language permitted. The mischief in the language is remedied by
liberal and beneficial construction. Beneficial construction is an interpretation to secure remedy to
the victim who is unjustly denied of relief. Such beneficial construction is mainly applicable in social
welfare and labour legislations.

Beneficial construction

a. Wider Meaning

In Beneficial construction, wider meaning is given instead of the usual and natural meaning of the
language of the statute. Such wider meaning helps the victim secure relief unjustly denied to him.
In Forsdike v Colquhoun, the court held that if an enactment requires that public houses are to be
closed at certain hours on Sundays then it means that it does not include Christmas days. Here
beneficial construction is to be given to exempt Christmas from Sundays so that on Christmas day
public houses need not be closed.
In Re Hale, the words ´soldier being in actual military service‖ was held to include a territorial
officer who has received orders to join his unit‖. Statutes granting power are sometimes broadly
interpreted.
In M/s Ethiopian Airlines v M/s STIC Travels Pvt Ltd, the Supreme court held that the object of
beneficial legislation, in case of ambiguities, is resolved by granting rather than denying the benefit.
In Steel Authority of India v National Union Water Front Workers, the rule of literal interpretation is
to be given a go by, only when provisions are vague or obscurely worded.

b. Suppression of mischief

The duty of the judge is to make construction of a statute so as to suppress the mischief and advance
the remedy.
In John Calder ( Publications) Ltd v Powell, By Sec1 (1) of the obscene publications Act,1959, the
court gave a wide interpretation to the term ― depravity‖ and ― corruption‖ not merely confining them
to sexual matters but to other matters too.

c. Industrial legislation

In Industrial legislations, the application of beneficial construction is more witnessed.

d. Jurisdictional/ procedural requirements

Provisions relating to procedural requirements namely ―giving of notice‖ often receive beneficial
construction. Statute relating to the jurisdiction or procedure of the court has received beneficial
construction.

e. Genus includes Species

The language of the statute is generally extended to new things which could not have been known at
the time of enactment. If the Act deals with ‗genus‘, ‗species‖ is also included.
E.g. ‗Bicycles were considered to be carriages under the highway Act, 1835.

f. De minmus non curatlex

The law does not concern itself with trifles or negligible things or acts. While interpreting trivial acts
are ignored. The objectives which the legislature is presumed not to intend must be avoided. E.g. ―To
break from prison‖ would not apply to a prisoner who broke out of prison while it was on fire to save
his life.

Beneficial construction or liberal construction has been receiving more attention as most of the
legislations are social welfare legislations and hence rules of beneficial interpretation has become an
important branch of study.
Similarly, in U Unichoyivs State of Kerala, 1963, the question was whether setting of a minimum
wage through Minimum Wages Act, 1948 is violative of Article 19 (1) (g) of the constitution
because the act did not define what is minimum wage and did not take into account the capacity of
the employer to pay. It was held that the act is a beneficial legislation and it must be construed in
favor of the worker. In an under developed country where unemployment is rampant, it is possible
that workers may become ready to work for extremely low wages but that should not happen.

Q. Discuss the principles of Constitutional Interpretation. Explain, "In the interpretation of

constitution, the judicial approach should be dynamic than static, pragmatic than pedantic,
and elastic than rigid". Describe - Harmonious Construction, Doctrine of Pith and Substance,
Colorable Legislation, Proviso, Doctrine of Eclipse, Principle of separation. What is the proper
function of a proviso?

Can it affect the enacting portion of a section as well?

Introduction
Constitution is the supreme and fundamental law of our country. Since it is written in the form of a
statute, the general principles of statutory interpretation are applicable to interpretation of the
constitution as well. As is the case with any other statute, the court tries to find out the intention of
the framers of the constitution from the words used by them. For example, in the case of State of
Bihar v Kameshwar Singh AIR 1952, SC used one of the standard principles of interpretation that
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 law nugatory, while interpreting the constitution. However, even if an
argument based on the spirit of the constitution is very attractive, it must be validated with the spirit
of the constitution as reflected by the words of the constitution. In the same case mentioned above,
SC observed that spirit of the constitution cannot prevail if the language of the constitution does not
support that view.

It is important to note that the constitution itself endorses the general principles of interpretation
through Article 367(1), which states that unless the context otherwise requires, the General Clauses
Act, 1897 shall apply for the interpretation of this constitution as it applies for the interpretation of an
act of the legislature. Courts have ruled in cases such as Jugmendar Das vs State 1951, that not
only the general definitions given in General Clauses Act, but also the general rules of construction
given therein are applicable to the constitution.

Having said the above, the fact remains that Constitution is a special act. It is a fact that every
provision of the constitution is constitutional and no part of it can be held unconstitutional. This casts
an important duty on the interpreters of the constitution to interpret its provisions such that the spirit
of the constitution is not maligned. In Kesvananda Bharati v State of Kerala, AIR 1973,
SC identified the basic structure of the constitution that reflects its true spirit and held that nothing
that hurts the basic structure of the constitution, is constitutional. In the same case, SC held that one
should give the freedom to the parliament to enact laws that ensure that the blessings of liberty be
shared with all, but within the framework of the constitution. It is necessary towards that end that the
constitution should not be construed in a narrow and pedantic sense.

The letters of the constitution are fairly static and not very easy to change but the laws enacted by the
legislature reflect the current state of people and are very dynamic. To ensure that the new laws are
consistent with the basic structure of the constitution, the constitution must be interpreted in broad
and liberal manner giving affect to all its parts and the presumption must be that no conflict or
repugnancy was intended by its framers. Applying the same logic, the provisions relating to
fundamental rights have been interpreted broadly and liberally in favor of the subject. Similarly,
various legislative entries mentioned in the Union, State, and Concurrent list have been construed
liberally and widely.

The following are some of the key principles applied specially in interpreting the provisions of the
constitution –

1. Principle of Harmonious construction

2. Doctrine of pith and substance
3. Doctrine of Colourable legislation
4. Principle of Ancillary powers
5. Principle of Occupied field
6. Residuary power
7. Doctrine of repugnancy
8. Principle of Territorial Nexus
9. Doctrine of stare decisis
10. Doctrine of prospective overruling
Principle of Harmonious Construction

The principle of harmonious interpretation is similar to the idea of broad or purposive approach. The
key to this method of constitutional interpretation is that provisions of the Constitution should be
harmoniously interpreted. As per Kelly:
―Constitutional provisions should not be construed in isolation from all other parts of the
Constitution, but should be construed as to harmonize with those other parts.‖ A provision of the
constitution must be construed and considered as part of the Constitution and it should be given a
meaning and an application which does not lead to conflict with other Articles and which confirms
with the Constitution‘s general scheme. When there are two provisions in a statute, which are in
apparent conflict with each other, they should be interpreted such that effect can be given to both and
that construction which renders either of them inoperative and useless should not be adopted except
in the last resort.

This principle is illustrated in the case of Raj Krishna vs Binod AIR 1954. In this case, two
provisions of Representation of People Act, 1951, which were in apparent conflict were brought
forth. Section 33 (2) says that a Government Servant can nominate or second a person in election but
section 123(8) says that a Government Servant cannot assist any candidate in election except by
casting his vote. The Supreme Court observed that both these provisions should be harmoniously
interpreted and held that a Government Servant was entitled to nominate or second a candidate
seeking election in State Legislative assembly. This harmony can only be achieved if Section 123(8)
is interpreted as giving the govt. servant the right to vote as well as to nominate or second a
candidate and forbidding him to assist the candidate it any other manner.

Upon looking at various cases, the following important aspects of this principle are evident –

1. The courts must avoid a head on clash of seemingly contradicting provisions and they must
construe the contradictory provisions so as to harmonize them.
2. The provision of one section cannot be used to defeat the provision contained in another
unless the court, despite all its effort, 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 as way so that effect is given to both the provisions as
much as possible.
 4. Courts must also keep in mind that interpretation that reduces one provision to a useless
number or a dead lumbar, is not harmonious construction.
5. To harmonize is not to destroy any statutory provision or to render it otiose.

Doctrine of Pith and Substance

Pith means "true nature" or "essence" and substance means the essential nature underlying a
phenomenon. Thus, the doctrine of pith and substance relates to finding out the true nature of a
statute. This doctrine is widely used when deciding whether a state is within its rights to create a
statute that involves a subject mentioned in Union List of the Constitution. The basic idea behind this
principle is that an act or a provision created by the State is valid if the true nature of the act or the
provision is about a subject that falls in the State list. The case of State of Maharashtra vs F N
Balsara AIR 1951 illustrates this principle very nicely. In this case, the State of Maharashtra passed
Bombay Prohibition Act that prohibited the sale and storage of liquor. This affected the business of
the appellant who used to import liquor. He challenged the act on the ground that import and export
are the subjects that belong in Union list and state is incapable of making any laws regarding it. SC
rejected this argument and held that the true nature of the act is prohibition of alcohol in the state and
this subject belongs to the State list. The court looks at the true character and nature of the act having
regard to the purpose, scope, objective, and the effects of its provisions. Therefore, the fact that the
act superficially touches on import of alcohol does not make it invalid.

Thus, as held in State of W Bengal vs Kesoram Industries, 2004, the courts have to ignore the
name given to the act by the legislature and must also disregard the incidental and superficial
encroachments of the act and has to see where the impact of the legislation falls. It must then decide
the constitutionality of the act.

Principle of Incidental or Ancillary Powers

This principle is an addition to the doctrine of Pith and Substance. What it means is that the power to
legislate on a subject also includes power to legislate on ancillary matters that are reasonably
connected to that subject. It is not always sufficient to determine the constitutionality of an act by
just looking at the pith and substance of the act. In such cases, it has to be seen whether the matter
referred in the act is essential to give affect to the main subject of the act. For example, power to
impose tax would include the power to search and seizure to prevent the evasion of that tax.
Similarly, the power to legislate on Land reforms includes the power to legislate on mortgage of the
land. However, power relating to banking cannot be extended to include power relating to non-
banking entities. However, if a subject is explicitly mentioned in a State or Union list, it cannot be
said to be an ancillary matter. For example, power to tax is mentioned in specific entries in the lists
and so the power to tax cannot be claimed as ancillary to the power relating to any other entry of the
lists.

As held in the case of State of Rajasthan vs G Chawla AIR 1959, the power to legislate on a topic
includes the power to legislate on an ancillary matter which can be said to be reasonably included in
the topic.

The underlying idea behind this principle is that the grant of power includes everything necessary to
exercise that power. However, this does not mean that the scope of the power can be extended to any
unreasonable extent. Supreme Court has consistently cautioned against such extended construction.
For example, in R M D Charbaugwalavs State of Mysore, AIR 1962, SC held that betting and
gambling is a state subject as mentioned in Entry 34 of State list but it does not include power to
impose taxes on betting and gambling because it exists as a separate item as Entry 62 in the same list.

Doctrine of Colourable Legislation

This doctrine is based on the principle that what cannot be done directly cannot be done indirectly. In
other words, if the constitution does not permit certain provision of a legislation, any provision that
has the same effect but in a round about manner is also unconstitutional. This doctrine is found on
the wider doctrine of "fraud on the constitution". A thing is Colourable when it seems to be one thing
in the appearance but another thing underneath. K C Gajapati Narayan Deovs State of Orissa,
AIR 1953 is a famous case that illustrates the applicability of this doctrine. In this case, SC observed
that the constitution has clearly distributed the legislative powers to various bodies, which have to act
within their respective spheres. These limitations are marked by specific legislatives entries or in
some cases these limitations are imposed in the form of fundamental rights of the constitution.
Question may arise whether while enacting any provision such limits have been transgressed or not.
Such transgression may be patent, manifest or direct. But it may also be covert, disguised, or
indirect. It is to this later class of transgression that the doctrine of colourable legislation applies. In
such case, although the legislation purports to act within the limits of its powers, yet in substance and
in reality, it transgresses those powers. The transgression is veiled by mere pretense or disguise. But
the legislature cannot be allowed to violate the constitutional prohibition by an indirect method. In
this case, the validity of Orissa Agricultural Income Tax (Amendment) Act 1950 was in question.
The argument was that it was not a bona fide taxation law but a colourable legislation whose main
motive was to artificially lower the income of the intermediaries so that the state has to pay less
compensation to them under Orissa Estates Abolition Act, 1952. SC held that it was not colourable
legislation because the state was well within its power to set the taxes, no matter how unjust it was.
The state is also empowered to adopt any method of compensation. The motive of the legislature in
enacting a law is totally irrelevant.

A contrasting case is of K T Moopil Nair vs State of Kerala, AIR 1961. In this case, the state
imposed a tax under Travencore Cochin Land Tax Act, 1955, which was so high that it was many
times the annual income that the person was earning from the land. The SC held the act as violative
of Articles 14 and 19(1)(f) in view of the fact that in the disguise of tax a person's property was being
confiscated.

Similarly, in Balajivs State of Mysore, AIR 1963, SC held that the order reserving 68% of the seats
for students belonging to backward classes was violative of Article 14 in disguise of making a
provision under Article 15(4).

Write about the Presumptions Affecting Jurisdiction of the Court?

Ans.

Introduction

The general presumption is that ordinary courts of law namely the civil courts, criminal courts, high
courts and Supreme Court have jurisdiction over people. Any statute which takes away the
jurisdiction of ordinary courts must be rarely resorted to, as people have the right to have free access
to all the courts.

Jurisdiction of civil courts

The basic presumption of law is that all civil courts are empowered to decide all suits of civil
nature. The basis of this presumption is that civil and criminal court have general jurisdiction over
people and they have right to have free access to both civil and criminal court.

Section 9 of CPC

It was emphasized by the Supreme Court that the rule prescribed by section 9 of CPC is that the
court shall, subject to provisions contained in the code, have jurisdiction to try al suits of civil nature
excepting suits in which their cognizance is either expressly or impliedly barred. The law further
presumes that a remedy in the ordinary civil courts must always be available to citizens.

Legal provisions excluding jurisdiction of civil courts and conferring jurisdiction to tribunals must
strictly interpreted in such a way that as far as possible, the jurisdiction of civil court are not taken
away. If the statute contains two interpretations, then the one conferring jurisdiction will prevail.

Exclusion of jurisdiction must be expressed or clearly implied. Not possible to curtail jurisdiction of
High Court and Supreme Court except by an amendment to the relevant provisions in the
constitution.

Jurisdiction of other courts

The general presumption is that a statute should not be given such an interpretation as to take away
the jurisdiction of the court unless the language of the statute is unambiguous and clear.

Since jurisdiction has been given to court by legislation, it is the legislation alone which can take
away the jurisdiction. If any statute provides for an express bar of jurisdiction of a civil or other
court, then the scheme of the particular Act must provide adequate alternative remedies.

If the constitutionality of any provision is to be challenged, the writ of certiorari is the only recourse.
There is no sympathy for legislative provisions which oust jurisdiction of courts, because of the fact
that the subjects are deprived of a remedy. If jurisdiction is conferred to a tribunal, the intention of
the parliament is presumed to have jurisdiction to correct the decision of inferior tribunal.

Finality clause

Many modern statutes contain provisions which attempt to take away the jurisdiction of courts by
making the decision of the tribunal final or conclusive.

The remedy by certiorari is never to be taken away by any statute except by the most explicit and
clear words. The word final means without an appeal. It does not mean without recourse to the writ
of certiorari. It makes the decision final on fact but not on law.

In Dhulabhai v State of MP, the Supreme court held that if a statute gives finality to the orders of a
special tribunal, the jurisdiction of civil court must be held to excluded only if there is an adequate
alternate remedy similar to what civil remedy would be.
In R v Medical Appeal Tribunal, Lord Denning said the word ‗final‘ only means‘ without appeal‘
and the remedy of certiorari cannot be taken away because it is not an appeal.

Creating new and enlarging existing jurisdiction

It is presumed that a statute does not create new jurisdiction or enlarge existing jurisdiction. Express
language is required if an Act is to be so interpreted, as to create new jurisdiction or enlarge existing
jurisdiction.

In Heathstar properties Ltd, A statute giving power to grant relief ‗on being satisfied‘ on certain
facts, does not confer on it any power to grant interim relief until such fact had been fully
ascertained.
In State of UP v Mohammed Nooh, In a departmental enquiry against the constable, the person
holding the trial offered to be a witness and prosecuted the constable. There was a gross violation of
the principles of natural justice. The court held that it can issue a certiorari.

Write about the Retrospective operation of Statutes.

A. 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.

Two terms

a. Commencement

The term ‗commencement‘ is used with reference to an Act, the day on which the Act comes into
force. If not provided, a Central Act comes into force on the day it receives Presidential assent.
b. Retrospective

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.
B. General Statute

Every statute is prima facie prospective, unless it is expressed or implied. If the object of the statute
is to affect vested rights or to impose mew burdens or to impair existing obligations, then there must
be words in the statute sufficient to show the intention of the legislature.

A statute can be given retrospective effect, only if the statute so directs either expressly or by
necessary implications. It is a fundamental rule of the law that no statute shall be construed to have
retrospective operation unless such construction appears very clearly in terms of the Act, or arises by
necessary or distinct implication.

Conditions for giving retrospective effect:

Minute attention must be given to the language of the statutory provision for determining the scope
of the retrospection as intended by the Parliament.

The language used in a statute is the most important factor to be considered.

C. Amending statute

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

D. 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 retrospective.

E. Pending Actions

In the pending suits or actions, the law is that the rights of the parties are decided as per the law as it
existed when the action was commenced. If however the Act provides the retrospective operation of
a statute, it would be construed accordingly even though the consequences are unjust and hard
In Smith’s Vs National Association of Operative Plasterers.

S4 of the trade dispute act,1906 enacted that ‗ an action for tort against a trade union shall not be
entertained by any court‘. It was held not to affect decisions of an action commenced before passing
of the act.

F. Doctrines of prospective overruling

Rule in I.C Golaknath Vs State of Punjab The doctrine of prospective overruling is a modern
doctrine suitable for a fast moving society. It does not affect the past but restricts its scope for the
future.

Under this doctrine, the court declares what the law is but does not give retrospectivity. It reconciles
the two conflicting doctrines, namely, the Court finds law and that it makes a law for the future by
bringing about a smooth transition by correcting the errors in the law without disturbing the impact
of errors on the past transactions. In other words, the law for the future corrected and the past
transaction as per the law, though invalid, are held valid.

The doctrine of prospective overruling can be invoked only regarding constitutional matters. It can
be applied only by the Supreme Court.
G. De Facto Acts

The acts performed by the officers de facto within their assumed official authority, provided such
acts are performed in the interest of the public or the third party and not for their own benefits, are
generally held as valid and binding, as if they were acts of officers‘ de jure.

H. General Act and Special Act.

The general rule is that special Acts prevails over the general act in the case of inconsistency. A
general act cannot repeal a special act. A Special Act, though earlier in time, deals with special
objects and general law even if enacted later cannot repeal it.
Food inspector Vs Suivert and Dholakia Pvt ltd. If there is a general law and a special law relating to
a particular subjects, the general law must be so applied as to not to affect the special provision. Only
if the intention to abrogate the special law can be spelled out, the general law shall prevail.

I. Statutes dealing with merely matters of procedure are presumed to be retrospective unless
otherwise interrupted.
J. Statutes Regulating Succession

Statutes enacted for regulating succession are not applicable to already open succession. Such laws
have only prospective effect. It is the same regarding statutes regulating transfers and contracts.
Fiscal and Penal Statutes are prospective Statutes regulating appeals and finality of orders are also
prospective.

Write a notes on Mandatory and directory statutes.

Ans. Whether an enactment is mandatory or directory depends on the scope and the object of the
statute. Where the enactment demands the performance of certain provision without any option or
discretion it will be called peremptory or mandatory.

On the other hand if the acting authority is vested with discretion, choice or judgment the enactment
is directory. In deciding whether the provision is directory or mandatory, one has to ascertain
whether the power is coupled with a duty of the person to whom it is given to exercise it. If so, then
it is imperative. Generally the intention of the legislature is expressed by mandatory and directory
verbs such as ‗may‘, ‗shall‘ and ‗must‘.
However, sometimes the legislature uses such words interchangeably. In such cases, the interpreter
of the law has to consider the intention of the legislature.
If two interpretations are possible then the one which preserves the constitutionality of the particular
statutory provisions should be adopted and the one which renders it unconstitutional and void should
be rejected.

Non-compliance of mandatory provisions has penal consequences where as non-compliance of

directory provisions would not furnish any cause of action or ground of challenge.
Distinction

It is one of the rules of construction that a provision is not mandatory unless non-compliance with it
is made penal (Jagannath v Jaswant Singh). Mandatory provisions should be fulfilled and obeyed
exactly, whereas in case of provisions of directory enactments substantial compliance is satisfiable.

Test for determining whether a provision in a statute is directory or mandatory.

Lord Campbell observed that there can be no universal applications as to when a statutory provisions
be regarded as merely directory and when mandatory.
Maxwell says ―that it is impossible to lay down any general rule for determining whether a provision
is mandatory or directory‘. The supreme court of India is stressing time and again that the question
whether a 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. In other words it depends on the intent of the legislature
and not upon the language in which the intent is clothed.

The intent of the legislature must be ascertained not only from the phraseology of the provision, but
also from its nature, design and consequences which would follow from construing it in one form or
another.

‗May’, ‘shall’ and ‘must’.

The words ‗may‘, ‗shall‘ and ‗must‘ should initially be deemed to have been used in their natural and
ordinary sense. May signifies permission and implies that the authority has been allowed discretion.
In state of UP v Jogendra Singh, the Supreme Court observed that ‗there is no doubt that the word
‗may‘ generally does not mean ‗must‘ or ‗shall‘. But it is well settled that the word ‗may‘ is capable
of meaning ‗must‘ or ‗shall‘ in the light of context. It is also clear that when a discretion is conferred
upon a public authority coupled with an obligation, the word ‗may‘ should be construed to mean a
command (Smt. Sudir Bala Roy v West Bengal).

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

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

Must- is doubtlessly a word of command. Specific Terminologies

99% of negative terms are mandatory; affirmative terms are mostly mandatory where guiding
principle for vesting of powers depends on context.

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

If time fixation is provided to the executive, it is supposed to be permissive with regard to the issue
of time only. However, provisions regarding time may be considered mandatory if the intention of
the legislature appears to impose literal compliance with the requirement of time.

Statutes regulating tax and election proceeding are generally considered permissive. However the
Supreme Court held in Manila Mohanlal v Syed Ahamed, whenever a statute requires a particular act
to be done in a particular manner and also lays down that failure to comply will have consequence. It
would be difficult to accept the argument that the failure to comply with the required said
requirement should lead to any other consequence.

Write in detail about the interpretation of penal statutes.

Ans.

General Principle

The rule that a statute enacting an offence or imposing a penalty in strictly construed is now only of
limited application and it serves in the selection of one when two or more construction are
reasonably open.
The rule was originally evolved to mitigate the rigor of monstrous sentences for trivial offences and
although that necessity has now almost vanished, the difference in approach made to a penal statute
as against any other statute stick persists.

According to Lord Esher, the settled rule of construction of penal section is that ‗if there is
reasonable interpretation which will avoid the penalty in any particular case we must adopt that
construction. If there are two reasonable constructions can be put upon a penal provision, the court
must lean toward that construction which exempts the subject from the penalty rather than the one
which imposes penalty.

There are two elements of crime; the Actus Reus and the mens rea.

In Noakes v Dancaster Amalgamated collieries ltd, Maxwell cited that where to apply words literally
would defeat the obvious intention of the legislation and produce a wholly unreasonable result. Then
the court must do some violence to the words and so achieve that obvious intention and produce a
rational construction.

But the full bench rejected the argument of futility based on Noakes V Dancaster amalgamated
colliery ltd in tolaram‘s case. On appeal the Supreme Court held that ‗court is not competent to
stretch the meaning of the expression used by the legislature in order to carry out the intention of the
legislature‘- Mahajan.J .

Even if one were to disregard the rule of construction based on futilities the only reasonable way of
construction is provided by ensuring that the language is not stretched and rule of strict construction
is not violated.

In M.V.Joshi v M.V Shimpi, it was held that ―it is now well settled that in the absence of clear
compelling language, the provision should not be given a wider interpretation‖.
A penal statute must be construed according to its plain, natural and grammatical meaning. (R v Hunt
1987)
In deciding the essential ingredients of the offence, substance and reality of the language and not its
form will be important. When the intention is not clearly indicated by linguistic construction then
regard must be given to the mischief at which the act is aimed.

Rule of construction in penal statutes does not prevent the court from interpreting a statute according
to its current meaning and applying the language to cover developments in science and technology
not known at the time of passing the statute.
In R v Ireland (1987), Psychiatric injury caused by silent telephone calls was held to amount to
assault and bodily harm under the person Act, 1861 in the light of the current scientific appreciation
of the link between the body and psychiatric injury.

In applying and interpreting a penal statute, public policy is also taken into consideration. In R v
Brown, the House of Lords held that consensual sadomasochistic homosexual encounters which
occasioned actual bodily harm to the victim were assaults.

Following are some of the propositions important in relation to strict construction of penal statutes.
if the scope of prohibitory words cover only some class of persons or some well defined activity,
their scope cannot be extended to cover more on consideration of policy or object if the statute.

Prohibitory words can be widely construed only if indicated in the statute. On the other hand if after
full consideration no indication is found the benefit of construction will be given to the subject.

If the prohibitory words in their own signification bear wider meaning which also fits in with the
object or policy of the statute.

Mens rea in statutory offences.

This principle is expressed in the maxim ― Actus non facit reum nisi mens sit rea” which means that
the existence of a guilty intent is an essential ingredient of a crime at common law.

Mens Rea is the state of mind stigmatized as wrongful by the criminal law.

Crimes involving mensrea are of two types.

a.crimes of basic intent ( does not go beyond Actus Reus) Crimes of specific intent (foresight of its
consequence and has a purposive element).
Words such as ‗voluntarily‘, ‗knowingly‘, dishonestly‘, ‗fraudulently‘ are used to signify the state of
mind.]

The modern tendency is in favour of the view that principles of construction do not vary with
statutes. The juristic parlance today uses the expression that a proper construction should be made
whether the statute is penal or fiscal. Normally the words used in the statute are to be construed in
their ordinary meaning. However such approach always does not meet the ends of fair and a
reasonable construction. Exclusive reliance on the bare dictionary meaning of words may not provide
proper construction. That is why in deciding the true scope and effect of the relevant words in any
statutory provision as observed by Halsbury, the words should be construed in the light of their
context rather than what may be either their strict etymological sense or their popular meaning apart
from the context.

Thus one has to analyze the different parts of a statute and consider what effect they may have on
interpretation.