SUBSIDIARY RULES

 Same word same meaning.

 Use of different words.

 Rule of last antecedent.

 Non- obstante clause.

 Legal fiction.

 Mandatory & directory provisions.

 Conjunctive and disjunctive words ‘or’ & ‘and’.

 SAME WORD SAME MEANING.
When the legislature uses same word in different parts of the same section or
statute, there is a presumption that the word is used in the same sense throughout.
The presumption is, however, a weak one and is readily displaced by the context.

It has been said that the more correct statement of the rule is that “where the
draftsman uses the same word or phrase in similar contexts he must be presumed to
intend it in each place to bear the same meaning.- CHAIRMAN INDORE VIKAS
PRADHIKARAN v. PURE INDUSTRIAL COKE & CHEMICALS Ltd., AIR
2007.

In interpreting the words ‘the grounds on which the order has been made’ as they
occur in section 3(3) and section 7(1) of the Preventive Detention Act, 1950, the
Supreme Court held that the words do not bear the same meaning in these two
provisions for in communicating to the detenu, the grounds of detention under
 Section 7(1), the authority can withhold facts which it considers against
the public interest to disclose, [vide section 7(2)]; whereas in reporting to the
State Government the grounds of detention under section 3(3), these facts are
likely to figure more prominently.

Venkatarama Ayyar, J., referring to the rule that the same meaning is
implied by the use of the same expression in every part of an Act, stated: “the
rule of construction contended for is well settled but that is only one element
in deciding what the true import of enactment is to ascertain which it is
necessary to have regard to the purpose behind the particular provision and its
setting in the scheme of the statute”.
 USE OF DIFFERENT WORDS
When in relation to the same subject- matter, different words are used
in the same statute, there is a presumption that they are not used in the same
sense.

In construing the words ‘distinct matters’ occurring in section 5 of the

Stamp Act, 1899, and in concluding that these words have not the same
meaning as the words ‘ two or more of the descriptions in Schedule 1
occurring in section 6, Venkatarama Aiyar, J., observed: “when two words of
different import are used in a statute in two consecutive provisions, it would
be difficult to maintain that they are used in the same sense”.- MEMBER,
BOARD OF REVENUE v. ARTHUR PAUL BENTHALL, AIR 1956.
 RULE OF LAST ANTECEDENT
As a corollary to the rule that phrases and sentences in a statute are
interpreted according to the grammatical meaning, relative and qualifying
words, phrases and clauses are applied to the antecedent immediately
preceding. The rule is , however, subordinate to context and may be better
stated by saying that a qualifying phrase ought to be referred to the next
antecedent which will make sense with the context and to which the context
appears properly to relate it.

MONGIBAI HARIRAM v. STATE OF MAHARASHTRA, AIR 1966-

while construing the definition of ‘premises’ in the Bombay Land Requisition
Act, 1948, which reads ‘any building or part of a building lat or intended to be
let separately’. It was held that the words ‘let or intended to be let separately’
did not qualify the word ‘building’ but only the words ‘part of a building’.
 Further , in interpreting Article 194(1) of the constitution, which reads
‘subject to the provisions of this constitution and to the rules and standing
orders regulating the procedure of the legislature, there shall be freedom of
speech in the legislature of every state’, the Supreme Court has held that the
adjectival clause ‘regulating the procedure of the legislature’ governs both
the preceding clauses viz., ‘ the provisions of this constitution’ and ‘the rules
and standing orders’.[ Article 143 of the Constitution of India, AIR 1965].
 NON OBSTANTE CLAUSE
A clause beginning with ‘notwithstanding anything contained in
this Act or in some particular provision in the Act or in some particular
Act or in any law for the time being in force’, is sometimes appended to a
section in the beginning, with a view to give the enacting part of the
section in case of conflict an overriding effect over the provision or Act
mentioned in the Non Obstante Clause.- ORIENT PAPER AND
INDUSTRIES Ltd., v. STATE OF ORISSA, AIR 1991.

The expression ‘notwithstanding anything in any other law’

occurring in a section of an Act cannot be construed to take away the
effect of any provision of the Act in which that section appears.-
P.VIRUDHACHALAM v. MANAGEMENT OF LOTUS MILLS, AIR
1998.
 In other words ‘any other law’ will refer to any law other than the Act in
which that section occurs’. In contrast the expression ‘notwithstanding
anything contained in this Act’ may be construed to take away the effect of
any provision of the Act in which the section occurs but it cannot take away
the effect of any other law.

The expression ‘notwithstanding anything to the contrary in any

enactment’ cannot take away the effect of any provision in a law which is not
an enactment.- SHARDA DEVI v. STATE OF BIHAR, AIR 2002.

P.E.K. KALLIANI AMMA v. K.DEVI,AIR 1996- Section 16 of the

Hindu Marriage Act, 1955, which legitimates children born of void marriages,
opens with a non obstante clause ‘notwithstanding that a marriage is null and
void under section11’, but having regard to the language and beneficent
purpose of the enacting clause it was held that were void under section 11 and
children born of all void marriages were held to be legitimatised.
 LEGAL FICTION
The legislature is quite competent to create a legal fiction, in other
words, to enact a deeming provision for the purpose of assuming existence of
a fact which does not really exist provided the declaration of non existent
facts as existing does not offend the constitution.- INDRA SAWHNEY v.
UNION OF INDIA, AIR 2000 [Statutory declaration by Kerala legislature of
non- existence of ‘creamy layer’ which was unrelated to existing facts was
held to be violative of Articles 14 & 16 of the Constitution].

In interpreting a provision creating a legal fiction, the court is to

ascertain for what purpose the fiction is created, and after ascertaining this,
the court is to assume all those facts and consequences which are incidental
or inevitable corollaries to the giving effect to the fiction.- CORPORATION
BANK v. SARASWATHI ABHARANSALA.
 But in so construing the fiction it is not to be extended beyond the purpose
for which it is created, or beyond the language of the section by which it is
created.

Article 341(1) empowers the President to specify with respect to any state
by notification ‘the castes, races or tribes or parts of our groups within castes,
races or tribes which shall for the purposes of this constitution be deemed to be
scheduled castes in relation to that state’.

Article 342(2) provides that the notification so issued shall not be varied
except by parliament. In interpreting this provision, it has been held that because
of the legal fiction resulting from the deeming provision, the conglomeration of
castes in the presidential order shall be considered as representing a class as a
whole and the state concerned has no authority by legislation or otherwise to
further subdivide the castes in the notification so as to give more preference in the
matter of reservation to minuscule proportion thereof in preference to other
members of the same class.-V.CHINNAIAH v. STATE OF ANDHRA
PRADESH, AIR 2005.
 MANDATORY & DIRECTORY PROVISIONS
The study of numerous cases on this topic does not lead to formulation
of any universal rule except this that language alone most often is not decisive,
and regard must be had to the context, subject- matter and object of the statutory
provision in question, in determining whether the same is mandatory or
directory.
“No universal rule can be laid down as to whether mandatory
enactments shall be considered directory only or obligatory with an implied
nullification for disobedience. It is the duty of the courts of justice to try to get at
the real intention of the legislature by carefully attending to the whole scope of
the statute to be considered”.
As approved by the Supreme Court “the question as to whether a statute is
mandatory or directory depends upon the intent of the legislature and not upon
the language in which the intent is clothed. The meaning and intention of the
Legislature must govern, and these are to be ascertained not only from the
phraseology of the provision, but also by considering its nature and design, and
the consequences which would follow from construing it the one way or the
other.

If the object of the enactment will be defeated by holding the same

directory, it will be construed as mandatory, whereas if by holding it mandatory
serious general inconvenience will be created to innocent persons without very
much furthering the object of enactment, the same will be construed as
directory.

But all this does not mean that the language used is to be ignored but
only that the prima facie inference of the intention of the legislature arising from
the words used may be displaced by considering the nature of the enactment, its
design and the consequences flowing from alternative constructions.
 If a provision is mandatory an act done in breach thereof will be
invalid, but if it is directory the act will be valid although the non- compliance
may give rise to some other penalty if provided by the statute.

 Use of ‘shall and may’; ‘must and should’.

 Manner of expression of exercise of power.

 Enabling words, e.g. ‘may’, ‘it shall be lawful’, ‘shall have power’.

 Have regard to.

 CONJUNCTIVE & DISJUNCTIVE WORDS ‘OR’ & ‘AND’
The word ‘or’ is normally disjunctive and ‘and’ is normally conjunctive
but at times they are read as vice versa to give effect to the manifest intention of
the legislature as disclosed from the context.

Section 3 of the Prevention of Corruption Act, 1988 empowers the

Government to appoint as many special judges as may be necessary for which
area or areas or for such or group of cases, as may be specified in the
notification. Construing the italised ‘or’ it was held that it would mean that the
government may, even for an area for which a special judge has been appointed,
appoint a special judge for a case or group of cases.- J.JAYALALITHA v.
UNION OF INDIA, AIR 1999. The case illustrates that the alternatives joined
by ‘or’ need not always be mutually exclusive.