Law Commission Report

The General Clauses Act

LAW COMMISSION OF INDIA

SIXTIETH REPORT

ON

THE GENERAL CLAUSES ACT, 1897

MAY, 1974

GOVERNMENT OF INDIA

MINISTRY OF LAW, JUSTICE & COMPANY AFFAIRS

Chapter 1
Chapter 2
Chapter 3
Chapter 4
Chapter 5
Chapter 6
Chapter 7
Chapter 8
Chapter 9
Chapter 10
Chapter 11
Chapter 12
Chapter 13
Chapter 14
Chapter 15

Appendix

CONTENTS

Preliminary

Statutory Interpretation

Definitions

Commencement

Part of Statutes

Repeal and Amendment

Temporary Acts

Other General Rules of Construction

Corporations
Provisions concerning the Government
Powers and Functionaries

Statutory Instruments

Severability

Offences under Several Enactments

Miscellaneous

Proposals as shown in the form of draft amendments to the existing Act

14
30
36
41
48
55

62

69

72

84

88

96

100

4:

D.O. No. F. 1(1)/73--L.C.

P. B. Gajendragadkar
LAW COMMISSION OF INDIA

'A' Wing, Shastri Bhavan,

New Delhi--1.

May 21, 1974.

I have great pleasure in forwarding herewith the 60th Report of the

Commission on the
General Clauses Act,

As the Commission has pointed out in the first Chapter of the Report, a draft
Report on
the subject, containing tentative proposals, had been prepared by the
previous Commission and
circulated for comments to State Governments, High Courts, Bar Associations
and other inter-
ested persons and bodies. Replies had been received in response to the said
draft; but, no fur-
ther action was taken by the previous Commission and no report submitted in
that behalf.

As you are aware, after the present Commission was constituted, it was
engaged in dealing
with more urgent work and when that work was completed, it decided to take up
the present
subject for study. A fresh draft Report on the subject was then prepared by
the Member-
Secretary, Mr. Bakshi for discussion. This draft was fully considered by the
Commission and
in the light of the discussion, it was revised and ultimately finalised. While
doing so, the
comments received on the earlier draft have been duly taken into account.

The Commission hopes that the recommendations made in the present Report
would help
rationalise some of its important sections and clarify the law by removing
ambiguities where
they existed and recommending the addition of certain new sections.

Yours
Sd/-
P. B. GAJENDRAGADKAR
Hon'b1e Mr. H. R. Gokhale,
Minister of Law, Justice & Co. Affairs,
Government of India,

New Delhi.

CHAPTER 1
PRELIMINARY

1.1. This Report deals with an enactment which is not confined to a particular
branch
of the law, but applies to all its branches. It is concerned with the General
Clauses Act,
1897.

1-2. Revision of the General Clauses Act was referred to a previous Law
Commission in
1959 by the Ministry of Law' (Legislative Department). The Commission
commenced a study
of the subject. and had to consider one important preliminary question"
relating to the effect
of revision of the Act on the operation of article 367(1) of the
Constitution- This question
was, after considerable discussion, settled, and the way was cleared for
proceeding with a
revision of the Act. In due course, a draft Report containing tentative
proposals on the subject
was prepared, and approved for circulation, and circulated by the previous
Commission for
comments to State Governments, High Courts, Bar Associations and other
interested persons
and bodies.

But the work of finalising the draft Report was not concluded and so, the
report on this
subject was not forwarded by the Commission to the Government.

Since this problem has remained with the Commission for quite some time, we
thought
that we should now take up the task, as the more urgent matters, which
claimed our attention
during the last two years or more, have now been dealt with, and our Reports
in respect of
them have been forwarded to the Government.

The Member--Secretary to the Commission prepared for our consideration a

fresh draft
Report, after a study _of the Act and also after taking into account the
comments received on
the proposals of the earlier Commission. This draft Report was treated by us
as a working
paper for our discussion.

We ought to add that we have examined the Act section by section, and have
considered
the question whether any section requires to be amended or revised, or any
new provision
requires to be added.

1.3. The objects of the Act are several, namely, (1) to shorten the language
of Central
Acts; (2) to provide, as far as possible, for uniformity of expression in
Central Acts, by giving
definitions of a series of terms in common use; (3) to state explicity certain
convenient rules
for the construction and interpretation of Central Acts; and (fl) to guard
against slips and
oversights by importing into every Act certain common form clauses, which
otherwise ought
to be inserted expressly in every Central Act. Of course, in the above
statement, when we
refer to Central Acts, we also include Regulations and Ordinances, and
statutory instrument
made under Central Acts, Regulations and Ordinances. -

1.4. The General Clauses Act, thus, makes provisions as to the construction
of General
Acts and other laws of all-India application. Its importance, therefore, in
point of the number
of enactments to which it applies, is obvious. '

1. 28th September, 1959.

'. Para 1.27 to 1.31, infra.

Subject-
matter
of the
Report.

Reference
to the ' _
Commission.

Objects of
the Act.

Importance
of the
General
Clauses
Act.

Importance of
uniformity.

Importance
of statute
law today.

Legislation
as princi-
pal means
of growth.

Much more, however, can be said about the importance of an interpretation

Act, which
has been called the "Law of all laws". In so far as certainty in the
application of the law is a
desideratum itself, an interpretation Act seeks to introduce that certainty,
in the limited sphere
in which it operates-

l.5- One of the objects of the Act, as already pointed out above, is to
shorten the language
of statutes and to achieve, as far as possible, uniformity of expression in
such language. Its
importance is evident from what Bentham saidlz

"The language of error is always obscure and indefinite. An abundance of words

serves to cover a paucity and a falsity of ideas. The oftner terms are
changed,
the easier it is to delude the reader. The language of truth is uniform and
simple. The same ideas are always expressed by the same terms."

But for the control exercised by the General Clauses Act over statutory
language, it would
have been a "free for all" affair so far as the use, meaning and
interpretation of words and
language in our statute law are concerned.
1.6. It is desirable, in this context, to emphasise the importance of statute
law today. It
was towards the end of the last century, that the present General Clauses Act
was enacted;
statute law did not then possess, in its volume and range, the importance
which it now possesses,
though, of course, much of the lawyer's law had been codified in India by that
time. Since
1897, the number of statutes and statutory instruments has multiplied every
year. As the
position stood towards the end of 1971, there were about 700 Central Acts of
permanent
duration, and the number of statutory instruments issued under these Acts
would run literally
into thousands. Litigation involving questions of statutory construction,
constitute now the bulk
of the total litigation in India. It is, therefore, obvious that an enactment
which is intended
to deal' with the process of interpretation of statutes, is now of much
greater importance than it

could have been in the last century.

127- Pound has called attention to the fact that legislation is the principal
characteristic
and means of growth in mature legal systems". As has been observed3 National
development,
as we understand it in the world today, involves a vast amount of
governmental planning "and
programming, not only to expedite the process of development, but to direct
their course along
desired lines. A great volume of legislative enactments is required to
validate plans and
programmes and the actions necessary for their implementation. For these
reasons, enacted or
statutory law has acquired predominant importance in modern developing
nations."

"Taken by itself, statutory law, that is, law consciously and purposely
adopted to meet
social needs as they arise, is certainly a higher stage of legal development
than customary law.
. . . .Not a few of us may look forward to a time when with us, as with most
other Western

Nations, practically all law shall be statutory4."

The importance of increase in the tempo of legislative activity was stressed,

in the United
States, by the late Justice Felix Frankfurter. He pointed out that the
proportion of cases
coming before the United States Supreme Court which did not involve statutory
issues, had
fallen from 40 per cent in 1875 to 5 per cent in 1925, and almost to zero in
19475. '
1. Bentham Theory of Legislation (Hi1dreth's Edition), 19c4, page 87. _ _

Pound "Sources and Forms of Law", (1946) 22 Notre Dame Lawyer 1, cited in
Sands, "Statutory Construction
' and National Development," (1969) 18 I.C.L.Q. 205.
a_ sands, "Statutory Construction & National Development", (1969) 18 I.C.L.Q.
206. 210.

Ernest Bruncken, "The Common Law and Statutes", (1920) 29 Yale L]. 516, 522.

"s R fl t' on the Reading of Statutes", Sixth Annual Benjamin N. Cardozo

Lecture deli-
si flabrgie thganifssofiafiiiihogté the Bar of the City of New York,.March 18,
1947; (1947) 2 Record of the Assn.
of the Bar of the City of New York, No 6 (1947) ; 47 Columbia L. Rev. 527 ;
quoted by Sands, "Statutory

Construction and National DcV6l0Dm6T1f" (1959) 18 I-C-I--Q 206: 210-

1.8. It should be pointed out that legislation has not been regarded always
as a mere
supplement to, or taking out of common law or customary law. On the contrary,
an older view
was that enacted law was the normal type, and customary law a mere makeshift
to which men
resorted, for want of enactment, to prevent a failure of justice. Roman law
after Justinian was
a body of enactments, and this idea is very prominent from the sixth century
to the rise of the
school at Bologna in the twelfth century}

The Roman Jurist Gaiusi' classified statutes as one form of "law", and
Justinian's Corpus
Juris was, as legislation of the Emperor, regarded as binding statute law for
centuries on the
continent. For some time, even a view prevailed that the rules of the common
law had their
origin in forgotten statutes." It was the rise and development of vigorous
body of judge-made
law in the King's courts, and the paucity of legislation from the time of
Henry the 2nd until
Henry the 8th, which rendered legislation tmimportant in the growing period
of the English legal
system.'

19- The tide has now turned again. In any modern society with an aspiration
for the im-
provement of the conditions. of the life of the people, legislation is par
excellence the source of
law. Therefore, importance of the General Clauses Act, having regard to the
growing impor-
tance of legislation in society, is obvious.
Maine put the matter lucidly when he stated" :

"The capital fact in the mechanism of modern states is the energy of

legislatures." As the
development of law goes on, the function of the judges is confined within
growing limits; the
main source of modifications in legal relation comes to be more and more
exclusively the
legislature."

We are making these observations in order to emphasise the importance of the

General
Clauses Act.

1.10. It is not, of course, implied that the General Clauses Act, or, for
that matter, the Inter-
pretation Act of any other country, codifies all the 'rules' of statutory
interpreation. The so-called
rules of interpretation are really in the nature of guide~lines," and are not
to be treated as
mathematical formula. In fact, even the definitions contained in the General
Clauses Act (and

,many of the general rules of construction which are incorporated in it)

apply only where the context

does not otherwise require. This shows that the Act itself does not purport
to treat rules of con-
struction as categorical imperatives.

1.1l. Even so, the value and utility of the General Clauses Act is
considerable, because
it not only constitutes the reference book of the judge when dealing with
statutes, but serves
as the draftsman's labour--saving device. It lays down rules which would have
been tedious to
repeat in every statute, thus shortening the language of legislative
enactments-

'I'he aspect of shortening the language has been emphasised again and again
in the speeches
relating to the General Clauses Act, 1868 and General Clauses Act, 1897, in
the course of the
legislative proceedings. It has also been referred to by the Supreme Court."

. Pound, "Common Law and Legislation" (1907-1908) 21 Harvard Law Review 383,
388.

. Gaius I. 2.

. Janka, Law and Politics in the Middle Ages, p. 1.

. See Pound, "Common Law and Legislation", (1907-1908) 21 Harvard Law Review
383, 389.

. Maine, Early History of Institutions, Lect. xiii, cited by Pound, Common

Law & Legislation (1907-1908) 21
Harvard Law Rev. v. 383, 402. ,

. Sidgwick, Elements of Politics, 2 ed.

. See also para 2.8, infra.
8. Subramaniam v. Official Receiver, A.I.R. 1953 S. C. 1.

15-MofLaw/ 74~ 2

go' 'J:-56¢..-

Act not
intended
to codify
rules of
interpreta-
tion.

Shortening
the language.

imp1ifica-
an in
anguage-
Iflportance
I .

istory.

3ackground-
English
Act.

.-Iistorical -
-ackground
---Indian

kct
)f 1868.

Act of 1889
ind Act

)f 1897
Present
let).

1.12. The importance of simplification in language should not be under--

estimated. As
has been observed by the Canadian Law Commission:1-2

"A part of the task (of Law reform) involves making the laws more
understandable
and more meaningful to the average citizen. Thus, a specific effort must be
made, not only to improve law in its substance, but to reduce legal
complexity
and technicality. This will require a study of topics that, on the surface,
may
appear technical, but that, in fact, affect, in telling ways, the realisation
through
law of the aspirations of the average man and woman for fair treatment for
themselves and for others."

1.13. A few other points of a general nature may now be dealt with. It may be
con-
venient to begin with the history of the Act. It would appear that the idea
of having a device
for shortening statutes could be traced to Bentham and to those who took up
the criticism of the

legal system made by Bentham.'

1.14. In England, the first interpretation Act, known as Lord Brougham's Act,
was passed
as far back as 1850. In 1889, the Act was replaced by the Interpretation Act.
This Act is
the source of subsequent Interpretation Acts, not only in England, but also
in other countries

of the Commonwealth.

1.15. The provisions of Lord Brougham's Act,4 with a few additions, were
adopted in
India, and enacted as the General Clauses Act, 1868 (1 of 1868). A Bill on
the subject had
been conceived of much earlier, but it could not be prepared for various
reasons, chief among
them being the impression that such a Bill might possibly be suggested by the
Indian Law
Commissioners.5 Ultimately, the Bill leading to the Act of 1868 was drafted
by Whitley Stokes.
In drafting the Bill, Stokes drew not only upon the earlier English statutes
on the subject, but
also upon the illustrations of rules of construction prepared by Arthur
Symondsf'

The Act of 1868 was of a measure of a limited character. It was incomplete;

but, in so
far as the ground covered was concerned, it worked "fairly well". It
considerably shortened the
language of subsequent Central Acts. Its utility made the legislative
Department think of mak-
ing useful additions to it. A supplementary General Clauses Act was later
enacted as the General
Clauses Act, 1887 (1 of 1887). This Act was drafted by Sir C. Ilbert. Ilbert
described the
process by which he arrived at the list of additions proposed, in the
following words.7

"The additions which I propose to make are based on personal experience

during the
last few years. I have had a list prepared of the special definitions inserted
in
Acts of Council and I find on examination of this list that there are some
dozen
or so of these definitions which might with advantage be generalised and added
to the list contained in the Act of 1868.

I also propose to generalize certain provisions which have so frequently

recurred in
9 99

recent Acts as to have become what conveyancers call 'common form .

1.16. In 1889, a comprehensive and consolidating Act on the subject was

enacted in
England. Our General Clauses Act, 1897, is largely modelled on that Act. It
consolidates
the two earlier enactments of 1868 and 1887, and includes a few new
provisions taken from

the (English) Interpretation Act, 1889.

. Law Reform Commission of Canada, Research Program 1, (March 1972) page 7.

. See also para 2.6, infra.

. Carr, "The Mechanics of Law-making", (1951) Current Legal Problems , page

122.
. Para 1.14, Supra.

. Gazette of India, August 24,1867, page 1220.

, whitley Stokes Anglo Indian Code (1887) Vol 1, page 485

. Legislative proceedings (1886), page 305

~lO\LIq-thing)-

\4

'I

117- Every State has its own General Clauses Act,1 which applies to State
Acts. The
lead in this matter was taken by the former Presidencies of Bombay, Bengal
and Madras. The
earliest Act on the subject was Bombay Act 10 of 1866. The first General
Clauses Act in
Madras and Bengal was enacted in 1867 (Madras Act 1 of 1867 and Bengal Act 5
of 1867).

1.18. The Central Act of 1897 has stood the test of time. Its value in
avoiding super-
fluity of language in statutes has been commended by courts. There can be no
better testi-
mony of its utility than the fact that courts have, on considerations of
equity, justice and good
conscience, thought fit to extend its principles not only to subordinate
legislation," but also to
private documents.3 The Act has also served as a model for all States General
Clauses Acts.
Lastly. the Act has been expressly applie. to the interpmtation of the
Constitution' by article
367 of the Constitution.

1.19. Since the passing of the Act, however, far--reaching changes have taken
place in this
country. The constitutional set-up has altered completely after the
attainment of independence,
and the volume of legislation has increased considerably. The range and
variety of the new
legislation has given rise to substantial changes in legislative practice.
The quantity of sub-
ordinate legislation has also assumed large proportions. Some provisions of
the Act of 1897
have come up for judicial consideration. A few of them have given rise to
conflict of views.

No large--scale revision of the General Clauses Act has so far been

undertaken. Certain
minor amendments were made by the amending Acts of 1903 and 1936. In
addition, by various
Adaptation Orders, the Act was, from time to time, amended to bring it in
conformity with
Government of India Act, 1935 and with the Constitution. But the scope of
such amendments
was necessarily limited. Time has come when the Act should be completely
reviewed, so as
to bring it in line with the fundamental constitutional changes and the new
trends in legislative
practice.

1.20. Before making our detailed recommendations for revision of the Act, we
consider
it necessary to examine a few preliminary questions. One such question
relates to the form which
the proposed changes should take. The basic question is whether there should
be one interpreta-
tion Act, or whether there should be two Interpretation Acts. Need for making
a choice in this
respect arises because a View has been put-fourth that the present General
Clauses Act should
continue for the interpretation of the existing Central Acts etc. and a new
full-fleged interpretation
Act should be proposed for the interpretation of Central Acts etc. to be
enacted hereafter.

In this connection, we may note that in the proposals for revision of the
Act, circulated
by the earlier Commission)' one suggestion was that there should be two-
Acts.----the present
Act may be preserved for existing Central Acts etc. and a new Interpretation
Act may be enacted
to apply to new enactments. But it should be added that the Commission had no
opportunity
of taking a final decision in the matter; and, in fact, because of its pre--
occupation with urgent
work, the matter remained undisposed of when the term of the Commission came
to a close.

1.21. We have carefully considered the matter in all its aspects, and are
inclined to take
the View that the simultaneous existance of two interpretation Acts is likely
to create unnecessary
complications. Citizens as well as lawyers will be required to make
themselves familiar with both
the Acts, for a considerable time to come, because it is unlikely that all
the existing Central Acts
will be removed from the Statute Book within a reasonably foreseeable future.
Diversity of judi-
cial interpretation in respect of two sets of identical provisions may also
create problems, and

1. See para 1.33,infra also.

3. Para 12.22 to 12.26, infra.

3. Para 6.21 A and 6.22, infra.

4. Article 367 of the Constitution, para 1.27, infra.

5. Para 1.2, supra.

State Acts.

Utility

of the

present
Act.

Need for
change.

Whether
there
should be
one Act
or two
Acts.

One Act
preferred.

#1
I-Iomo-
eneity of
Jentral
icts
assed
ince

868.

Form of
the proposed
'egislation.

\mending
xct
referred.

Broad
:onsidera-
tions

borne in
mind when
revising
the Act.

such diversity will harm the uniformity of the law.

Statute Book were to have two General Clauses Acts for the interpretation of
Central Acts.

No doubt, the initiation of a totally new interpretation Act (with only

prospective effect)
has an advantage inasmuch as the redical changes will not apply to existing
Acts. But the same
object could, in a fair measure, be achieved by suggesting new provisions for
incorpration in
the present Act, at the same time making those new provisions prospective'.
The proposals for
having two Acts does not, in this respect, have any peculiar merit.

1.22. It may be stated that though, during the period since 1868, there were
different Cons-
titution Acts in force at different times, yet Central Acts passed since 1868
have a certain amount
of homogeneity. Hence, it is logical to have one Act for their
interpretation. As regards the
new provisions to be inserted in the Act, care is being taken to ensure that
such of them as are
likely to create any difficulty will be prospective only. For all these
reasons, we think that the
alternative of having one Act, is not likely to create any serious practical
difficulty. In any
case, the advantage of having one Interpretation Act for all Central Acts far
outweighs the slight
disadvantage that certain difliculties may possibly arise in a few odd cases
in discerning which
provisions apply to which Central Act.

1.23. There is another preliminary question_to be considered. Assuming that

there is to
be one Interpretation Act" what should be the form which the proposed
legislation should take 7

The new legislation can possibly take one of the following forms :-----

(1) An amending Act; or

(ii) A new Act which will apply to all Central Acts. whether passed before or
after
the commencement of the new Act.

1.24. We prefer the first course, namely, an amending Act. The General Clauses
Act, 1897,
already makes a distinction between (a) Central Acts made after the 3rd
January, 1868 (the
date of commencement of the General Clauses Act, 1867); (b) Central Acts and
Regulations
made after the 14th January, 1887; and (c) Central Acts made after the 11th
March, 1897 (the
date of commencement of the Act of 1897). To these categories will be added
one more cate-
gory, namely, Central Acts and Regulations made after the commencement of the
amending Act.
This may appear to be complicated; but it cannot be avoided. The complicated
structure is
already there in the existing Act. What the amending Act will do is only to
add one more cate-

3013'-

1.25. This disposes of the preliminary questions. So far as the revision of

individual sec»
tions of the Act is concerned, we have borne in mind a few broad
considerations which we may
now mention. In the first place, where a particular section of the Act has led
to a conflict of
decisions, or other difficulties of interpretation, we have tried to settle
the law. Secondly, apart
from such conflict or difficulties, where the particular provision was found to
be juristically
wrong3, we have tried to set right. Thirdly, we have recommended the addition
of new
provisions' where the gap in the existing law was found to cause difliculties
in practice.

1.26. It will be apparent from the following Chapters of this report that the
recom-
mendations that we have made are not numerous or radical. This is a tribute
to the draftsman-
ship of the present Act, which has stood the test of time for three quarters
of a century.
On the whole, the provisions of the Act have caused no serious difiiculty5. No
doubt, a

. See para. 1.22, infra.

. Para 1.22, supra.

E. g., section 3--"aflidavit".

. E. g., the proposed provision as to temporary Acts, Chapter 7, infra.

. See para. 1.18, supra.

v:A.uu._

It would, thus, be a serious anomaly if the

certain amount of technical language is bound to recur in an Interpretation

Act. as the subject-

matter deals with abstractions familiar to lawyers but not to laymen. One
cannot, therefore.

expect here the excellence of limpid language found in, say, continental
Codes, and in some
l7 of our own laws.

However, at some places, the legislative style was tortured1 and left scope
for improvement.
We hope that in the recommendations made by us, we have been able to arrive
at a statement of
law which, on the whole, can be described as clear, simple and precise

1.27. There is a constitutional question which we would like to dispose of at

the outset. f,'[3'et§'e'°'a'i°"

It concerns the interpretation of the Constitution, and can be

appropri:>.tely rnentioned in conne('- 9Qnsmu_
tion with the revision of this Act. The question? arises, mainly, from the
language of article "O"-
-- 367 of the Constitution, which reads as follows :-----

"Unless the context otherwise requi.='es. the General Clauses Act. 1897,
shall. subject
to any adaptations and nicdifications that may be made therein under article
372.
apply for the interpretation of this Constitution as it (m[)Iies' for the
interpretation
' of an Act of the Legislature of the Dominion of India."
Since this article refers to "an Act of the Legislature of the Dominion of
India", the query may

Y' be raised if it is permissible to modify or revise the General Clauses

Act, lest such modification
or revision should introduce complications in the literal application of
article 367. In other words,
the question is whether amendments concerning the existing General Clauses
Act. in so far as the
Act applies to Central Acts, would, in any manner, dislocate the operation of
that Act in relation
to the Constitution. That is the question to which we address ourselves.

1.28. It appears to us that there should be no such difficulty. Any

amendments. additions NO
or deletions which may be made in the General Clauses Act, 1897, would not
affect the Consti- difficulty
tution. Interpretation of the Constitution will continue to be governed by
the General Clauses hkely'
Act, as in force immediately before the C0nSliIl!ll07?3. The Act-cannot be so
repealed or
modified as to affect the interpretation of the Constitution.

1.29. It may be stated that the concluding words in article 367--"as it

applies tor the inter- Debates
pretation of an Act of the Legislature of the Dominion of India",--were added
in the Constituent 3" the

'/ Assembly, by an amendment moved by Dr. Ambedkar, who thus explained their
utility': f{§','?j,§,'{,'ff,f"

>

"The point is this, that the General Clauses Act applies to Acts, Regulations
and Ordi-
nances. It is, therefore. necessary to say to which class of these laws this
will
apply. That is the reason why the amendment is proposed."

Shri T. T. Krishnamachari made the position clear :

" . . . . . . . . ..what we want is that only those particular portion: which

refer to Acts
s should apply, so far as this particular clause is concerned
The concluding words of article 367 do not, therefore, mean that the General
Clauses Act
'. should be preserved for all times in its pre--l950 form. The Act can be
revised or modified;
but the unmodified Act will continue to govern the interpretation of the
Constitution.
1.30. Will section 8 of the General Clauses Act, which provides that when an
enactrrieiit Efiectof
is repealed and re-enacted, references to the old enactment will be construed
as references to the sectior_18
*,re--enacted one, make any difierence ? We do not think so. It should be
noted that the words §g'7""'°1°
1. E. g. section 6A, para 6.10, infra.

2. At a very early stage of consideration of this Act before a previous Law

Commissior this query was dealt
with. _ ' "

3. Subject to adaptations made under article 372 of the Constitution.

4. Constituent Assembly Debates, Vol. IX, Part III, pages 1641-1642,
discussion relating to article 3C7.(-)

Conclusion.

Title of
the Act.

State law.

"unless the context otherwise requires" (in article 367)' mean that the
General Clauses Act,
section 8, is to be excluded. Even by its terms, section 8 of the General
Clauses Act will not
apply to the Constitution, because expression "enactment" (which occurs in
section 8) would
not take in the Constitution, which is not an "enactment". The Constitution
is supreme and is,
in fact, the foundation of all enactments. '

1.31. Our conclusion, therefore, is that the revision or amendment of the

General Clauses I

Act, 1897, will not, in any way, aflect the operation of article 367; and the
General Clauses Act,
[897 as it stood immediately before 26 January, 1950 (subject to adaptations
made under the
Constitution) will continue to apply.

1.32. In many countries, Acts similar to the General Clauses Act are called
Interpretation
Acts. But, as the provisions of the General Clauses Act (whether relating to
definitions and
meanings of words and terms or dealing with construction and interpretation)
are, so far as may
be necessary, common to every Central Act, the title "General Clauses Act" is
not less appro-
priate than the title "Interpretation Act". For this reason, and also because
this title has been
in vogue for more than a century, we do not recommend any change therein. The
Supreme
Court had perhaps, this in mind when it observed in the case of Chief
Inspector of Mines §"
K. C. Thaparl: v
"Whatever the General Clauses Act says, whether as regards the meanings of
words 01':
as regards legal principles, has to be read into every Act to which it
applies."

1.33. It may also be noted that though Act does not, in terms apply to State
laws, it is
evident that the State General Clauses Acts should conform to the General
Clauses Act of 1897,
for, otherwise, divergent rules of construction and interpretation would
apply, and. as a result,
great confusion might ensue. Thus, excepting a few provisions in the Central
Act, such as
those contained in section 5, nearly all its remaining provisions are as
appropriate for State
Act and Ordinances asifor the Central Acts and Ordinances and. have, in fact,
been adopted
in all the State General Clauses Acts. The result has been that a certain
amount of uniformity
has been achieved in the language of the entire body of statute law of this
country.

1. Para 1.27, supra.

2. Chieffnspector afMt'nes v. K.C. thapar, (1961) 2 S.C.A. 86, 89; AIR 1961,
SC 838, 843 (Das Gupta).

CHAPTER 2
STATUTORY INTERPRETATION

2.1. In this Chapter, we propose to refer to certain general aspects of

statutory interpreta- Introduc-
tnry.

tion.

2.2. Interpretation is as old as language. Elaborate rules of interpretation

were evolved Interpfctw
even at a very early stage of the Hindu civilisation and culture. The rules
given by J aimini, the Lismad as
author of the Mimansat Sutras, originally meant for the Srutis, were employed
for the interpreta- language-
tion of the Smritis also. All the commentators and writers of Nibandhas
invariably adopted these
canons of interpretation for their own purposes, so much so that these
interpretations or comments
sometimes became more difficult and abstruse than the original texts
commented uponl. K.A.
Nélkanta Sastry, a distinguished scholar, has observed":

"With reference to the system of Jaimini (Mimansa) it has for its main
object, the
determination of doubtful points in the elaborate rituals enjoined by the
Vedas
by discussion and interpretation. It raises and answers, incidentally, some
ques-
tions of great interest."

The importance of avoiding literal interpretation has also been stressed in

one of the ancient
text books" 2

"Merely following the texts of the law, decisions are not to be rendered,
for, if such
decisions are wanting in Equity, a gross failure of Dharma is caused'."

The Bhavishya Purana5 has an apt verse dealing with the rule to be followed
for the resolu-
tion of conflict between Smriti and Artha as well as for the resolution of
inconsistency between
the rules of the Smritis themselves.

And Kalidas has described, in ringing words which have become immortal, the
indissoluble

, link between "word" and "meaning°".

, According to Naradal, when Smritis and Artha Sastra are inconsistent, the
presumption
of Arthasastra is superseded by Smritis". In case of mutual inconsistency,
however, that rule
is authentic which is in accord with equity'.

2.3. Interpretation, thus, is a familiar process of considerable significance.

In relation to Interpreta-

statute law, interpretation is of importance because of the inherent nature

of legislation as a :it',:{'m';£_
source of law. The process of statute making and the process of
interpretation of statutes take Importance

place separately from each other, and two different agencies are concerned.
An interpretation °f'
Act serves as the bridge of understanding between the two.

1. U.C. Sarkar, Epoche in Hindu Legal History (1958), page 167.

2. K.A. Nilakanta Sastry, "Mimamsa Doctrine of Works" (1921) Indian Antiquary

p. 211.
3. Brihaspati.

4. %a'<'~m; smamfw: =r arésai fa Twain: t;fi?rg'T='r faarfig Erésnfirz snvfir

5 Fianna Faxing mimrarcr a?eI=r¥{ tm'a'< f=«t*<'fe'r<-31 {tangent Fafisr: win:

wferwrgtt

6 antsfifiaz man amisrfasrar? Ema: fi1a'<'t Er-*2 crr$ia°rq-<5: ml

7. Narada Ch. 1, verse 40. K

8. Translation by Dr. Ludo Rocher, Vyavahar Chintameni of Vachaspati
(Chent.1956).

. qfivnw t'«'a"('n': at zgferanjnt Fetter: I-'aft:

A process of
finding out.

And: to
interpreta-
tron.

Object of
Interpreta-
tinn Act
to standar-
dise the
interpreta-
tion.

Not

possible to
codify rules-

Acharya's
suggestion
not

accepted.

10

Judicial determination of questions of law requires the use of materials of

various types,
depending on the nature of the question. In the interpretation of statutory
provisions the material
used will naturally have a sharply legal character, as distirct from the
application of a general
common law doctrine where it may have a more diffused character. In statutes,
greater precision
is, therefore, required. The process of interpretation is more legalistic and
makes more inten-
sive use of the legal technique in statutory interpretation, as contrasted
with the application
of common law rules.

2.4. No idea is exactly what it appears in the linguistic form in which it is

expressed'.
There is always something which is behind the linguistic form, and which goes
deeper: and it
is the function of interpretation to see that this is made explicit. In this
process (which is a
process of finding out), we come to grips with the subject in all its wealth
of inter--relations, and
with particular aspects which, perhaps, we never suspected to exist, thougali
they are closely bound
up with the ideas.

2.5. In this process of interpretation, several aids are used. They may be
statutory or non-
statutory. The former category (statutory aids) is illustrated by the General
Clauses Act, and
by specific definitions contained in individual Acts, as also by certain
provisions of a general
nature which are, for example, contained in the Indian Penal Code2, and are
relevant to the cons-
truction of penal enactments. The latter is illustrated by common law rules
of interpretation (in-
cluding certain presumptions relating to interpretation), and also by case-
law relating to the in-
terpretation of statutes. '

Holland3 has dealt with the function of interpretation at length. For the
present purpose, it
is suflicient to mention that he has drawn a clear distinction between
"authentic" interpretation
on the one hand and other aids to interpretation, on the other hand.

2.6. An interpretation Act is, thus*, one of the aids to interpretation. The
primary pur-
pose of an interpretation Act is to standardise the interpretation. The
importance and utility
of this aspect should not be under-rated. The avoidance of uncertainty as to
the meaning of
statute law helps the average citizen, by reducing the scope for ingenious
argument. It is,
therefore, an efiort to simplify and "demystify" the substantive law".

2.7. It is obvious that all "rules of interpretation" cannot be codified. Some

rules are only
guidelines, as we have already stated". A suggestion was made by the later
Professor Acharya.
in his Tagore Law Lectures on Codification in British India7, that the scope
of the General
Clauses Act should be extended so as to make it a comprehensive code on the
interpretation-
of statutes. This suggestion is, no doubt, attractive at first sight; but a
close scrutiny will
reveal its impracticability. It is not possible to incorporate, in an
Interpretation Act, the
rules of interpretation enunciated in the text books on the subject. One of
the main reasons for
having an Interpretation Act is to facilitate the task of the draftsman in
preparing parliamentary
legislation. The courts also have recourse to Interpretation Acts to
interpret statutes; but they
do not confine themselves to these Acts. They certainly take the aid of
accepted rules of
interpretation as laid down in decided cases.

Moreover, a certain degree of elasticity is necessary in this branch of the

law. Rules of
construction of statutes are not static. Aims and objects of legislation will
be better served
by appropriate judicial interpretation of the law, rather than by rigid
provisions in the laws
themselves. At present, Judges have a certain amount of latitude in the
matter, which enables

Paule Preire's article in 1970 Seminar "Tomorrow began yesterday" (Educ.

International).
. Chapters 2 to 4, Indian Penal Code.

Holland on Jurisprudence.

. Para 2.5, supra.

. See also para 1 .8, supra.

. Chapter 1, supra.

. Acharya, Codification in British India, pages 189, 191.

\IO\'JIJ>-LA-|l\3"'

ll

them to do justice, after taking into consideration the nature and

charactienof 'each. statute. If
the rules of construction are given a statutory form, the consequential
rigidity in this branch of
the law is likely to do more harm than good.

2.8. For example, the maxin--"Expressio unius exclusio aIierius"--has been

thus commen-
ted upon by Max Radinl :

"So far from being logical, as some courts have called it, it illustrates one
of the most
famously simple of logical fallacies, the 'illicit major', long the pons
asinorum of school-boys2.
And yet, in a widely used cyclopaedia" there are at least seven hundred cases
cited in which
the maxim has been applied or explained.

"It has been called an axiom by the House of Lords, and it has been said of
it that no
maxim is of more general and uniform application.' Yet, in the same case in
which the House
of Lords called it axiomatic5, it was disregarded; and the first case of its
'application' cited
in the Corpus juris is a case in the United States Supreme Court in which it
was rejected.""
How various and variable such considerations are is graphically illustrated
by a collection
of the various canons of construction by Karl Llewellyn and Charles -
Driscoll? Each rule of
construction of statutes, it is stated, is answered by a counter--rule. Each
thrust is met by a
parrv.

Some mles of law can be fixed and certain, but it is clear, as Arristotle
realised", that there
is a "whole class of matters which cannot be decided. . . .properly by rules
of law". To meet
this difficulty", "Law trains the holders of office expressly in its sprit,
and then sets them to
decide and settle those residuary issues 'as justly as in them lies'1°".

2.9. Statutes are the expressions of the will of an authority constituted by

society to announce
general obligatory legal rules. The binding force of statute law attaches to
the formula in which
the law is expressed". The task of interpretation of a statute is of
extracting, from the formula,
all that it contains of legal rules, with a view to adapting it, as perfectly
as possible, to the facts
of life"-'. Therefore, the insertion of rigid rules may go against the very
concept of interpreta-
tion.

Moreover, with the passage of time, there may be changes in the meaning of
words. As
has been stated", "some words are confined to their history, while some are
starting points for
history."

To quote Lord Reid",

"All these canons of construction give a lot of material for people who like
dealing
with them, but I do not think they are more than guides, and guides which
take
you a very short way."

2.10. However, where there is a conflict of judicial opinion on a specific

question, it is
both proper and necessary to resolve the conflict. In suggesting the
incorporation of new
rules of construction, we have followed this principle.

1. Max Radin, "Statutory Interpretation", (1929-1930) 43 Harv. L. Rev. 863,

875.

. c. f. Jevons, Elementary Lessons in Logic (1918), 132.

. (1921) 25 Corpus Juris, 220.

. See Saunders V. Evans, (1861) 8 H.L. Cas. 72], 727.

Saunders v. Evans, (1861) 8 H. L. Cas. 721.

United States v. Barnes. (1912) 222 U.S. 513.

K.N. Llewellyn, "Better Theory of Legal Interpretation", (1950), 3 Vend. L.

Rev. 395, 401-406.
. Aristotle, Politics, Ill, XV, S. 6.

. B. E. King, Review of Levi's Introduction to Legal Reasoning, (1953) Cam.

L. J. 126.

. Aristotle, Politics lll, XVI. S. 5.

. Geny, Methode, Part 111, C.l., cited in Stone, Legal System, (1964), page
216.

. Stone, Legal System, (1964) p. 216.

. Frankfurter, "Reading of Statutes", cited in Stone, Legal System, (1964),

page 351, footnote 29.
. Lord Reid in (1955) Australian Law Journal 221.

15 M of Law/74-3

Statutes to be
adopted to
facts of life.

Specific
conflicts
to be set
right.

Interpreta-
tion Acts
and the
C011'! D1011
law.

Interpreta-
tion may
partake

of the
character
of law-
making.

ludicial
"law-making
in three

situations".
12

2.1]. Provisions in interpretation Acts can, in respect of their relationship

with the Com-
mon Law, be analysed thus. First, there are provisions which declare the law.
In many
instances, such provisions simply state the rule of law announced by the
courts in their de-
cisions,' with the result that the general principles of the construction of
statutes are, in effect,
codified. In other words, the statute will simply state the rules of law
already declared and
applied by the courts. Where this is the case, obviously. the statute has
very little, if any,
eflect upon the judicial attitude.

Secondly, there are various statutory rules of construction which embody

efforts of the
legislature to correct constructions which it has deemed erroneous. Such
rules seek to sub-
stitute new rules of construction for existing ones, and thereby alter the
common law.

'1' hirdly, there are statutory rules of construction which add to the common
law. We have
not referred to the above aspect merely as one of academic interest. It helps
to elucidate
one possible channel in which the reform of the law could be directed,--~the
confirmation or
modification of rules of interpretation laid down by courts, or the addition
of rules on matters
which have not so far come up before the courts.

2.12. It is, of course, well-recognised that interpretation is not merely a

process of spell-
ing out the meaning by set guidelines. Sometimes, it has to partake of the
character of law-
making.

While the judiciary would not have much scope for law~making where the
language is
clear and the purpose of the statute is definite. its scope for law--making is
undisputed when the
statute itself consciously delegates the creation of the norm of the
judiciary.

Interpretation is not pure mathematics, where the answers given by every

person to the
particular mathematical problem must 'rally with each other if the answers
are correct. As
we shall show later,2 a certain amount of latitude is left to those who have
to interpret and,
to this extent, interpretaion resembles law-making.

Morris Cohen pointed out, "You 'cannot construct a building out of the rules
of architec-
ture".3 As Judge Learned Hand' said,»-
"OF course, it is true that the words used, even in their literal sense, are
the primary,
and ordinarily the most reliable, source of interpreting the meaning of any
writ-
ing: be it a statute, a contract, or anything else. But it is one of the
surest in-
dexes of a mature and developed jurisprudence not to make a fortress out of
the
dictionary."

2.13. Julius Cohen5 has distinguished three main situations covered by the
loose term
"iudicial law-making" relating to statutes----(i) One is very rare, namely,
the usurpatory kind,
where the clear 'language and purpose' of the statute are subverted and
replaced by the court's
own policy. (ii) a second (non-unsurpatory) kind is where, for some reason,
the legislator
has (in effect) consciously delegated norm-creation to the judiciary. whether
because flexi-
bility of administration is required as in the Sherman Anti-Trust Law), or
because conflicting
views and interests within the legislature prevent agreement on anything but
vague expression
(iii) The third is where there is neither clarity of language and purpose,
nor a conscious dele-
gation, but single vagueness or ambiguity, or internal inconsistency of
language, affecting the
statutory words. In this, as distinct from the first two kinds, the judicial
search is for legislative
meaning, and, thus, for legislative policy. The judicial task, in cases of
this third kind, is to

1. See Crawford, Statutory construction, (1940) pages 751352.

2. Para 2.13, infra.
3. M. R. Cohen, Social Order, 173.
4. Cabal!'-I. Markham, 14R F 2d 737 (2nd Cir 1945) cited in Friedmarm. legal
Theor}. (1967). rage 458.

5. J. Cohen, "Judicial Legislation", (1961) 36 Indiana L.J.414, 419, 423,

cited in Stone. legal System
(1964), 353.

13

mend the legislative expression so as to yield a solution that can reasonably

be attributed to
the legislature, whether by surface search of the syntax, by reading in the
context of the whole
statute. by probing for a principle which the statute expresses, or for hints
of the legislator's
purpose, consciously or unconsciously held by him.
2.14. Thus, it will not be sufficient merely to define the concept as a matter
of semantics, Dutyof -

or to describe or explain it by taking its implications, as a given--fact.

The interpreter has
to adopt a position of commitment towards the Act which he is to interpret.
:01'
a en.

This is not to say that the interpreter should start with pre--conceived
attitudes. Julius
Stone has observed, that1 in most questions of statutory interpretation which
are likely to come
before an appellate court, there is involved an important element of
evaluation, of deciding
what is the more desirable result which can be brought within the verbal
framework of the
legislator's expression. If the Court is not engaged in legislation, it is,
at any rate, as Professor
Cohen has suggested,'-' engaged in "legisputation."

2.15. The central aim in the "administration of a statute is to discover or

formulate, as Adminism.
well as give effect to, principles or formulas for elaborating the purposes
bearing upon the gitgltlufi;
statute". And in this view, the principles when discovered are thereafter to
be applied as in- ¢em,a1a;m_
tegral principles of the law. Judicial interpretation of statutes, and
judicial law-making by

statutory analogy, are in other words, to be seen as one process, and not as
contrasted.3

We have made these observations to define the scope of interpretation in

general. We
shall now proceed to specific topics arising out of the General Clauses Act.

1. Julius Stone, Legal System (1964), page 352 and footnote 35.

2. Cohen, "Judicial Legisputation and the Dimensions of Legislative meaning",

(1961) 36 Indiana 1...].
414, 423, esp. 414 and 419.

3. J. P. Witherson, The Essential Focus of Interpretation" referred to in

Stone, Legal System (1964), page
352, footnote 35.

Introductory.

Section
3---opening
line----amend-
merit
regarding.
Section 3(1)---
"abet".

Section 3(2)---
"act".

Section
3 ( 3) "atti-
davit"

CHAPTER 3
DEFINITIONS

3.1. Three sections of the General Clauses Act,-----sections 3, 4 and 4A,--

contain general
definitions. Not many general observations as to these definitions are
required, since most of
the points which we have to deal with, concern matters of detail pertaining
to particular words
and expressions defined in the various clauses of these sections. In general,
however, it may
be observed that when a particular word or expression which has not been
defined in the Gene-
ral Clauses Act, comes to be used with increasing frequency so as to become
the current coin
of the legislature, opportunity should be taken to consider whether it should
not be defined in
the Interpretation Act, so as to ensure uniformity,----provided, of course,
it is first assured that
the expression is used in a broadly uniform sense and has thus become a term
of art. We
have, in suggesting amendments in these sections, kept this consideration in
mind.

3.lA. It may be noted that section 3, which is the principal section

containing definitions,
applies to the General Clauses Act itself and to post-1897 Central Acts and
Regulations.

Now, we are recommending the insertion, in the section, of a few new

definitions, and some
of them may not be appropriate for applying to existing Central Acts and
Regulations. These
will be enumerated in a separate section} and it is desirable to make it
clear that section 3
will be subject to that section. Accordingly, we recommend an amendment of
the opening
line of section 3, as follows :---

Section 3 (opening lines)

in section :, before the words, "In this Act," the words, figure and letter
"subject to the
provisions of seciirm SA." shall be inserted?
3.2 Section 3(1) defines the expression "abet". It needs no change. We have
taken
into account the decisions on abetment under the Penal Code, but they do not
necessitate any
change here.

3.3. Section 3(2) defines the expression "act". It needs no change.

3.4. Section 3(3) reads thus:

"ai'fidavit" shall include aflirmation and declaration in the case of persons

by law allowed
to afiirrn or declare instead of swearing.

The definition is inaccurate, because it seems to equate "aflidavit" and

"oath", as the word
"oath" is defined also3 in the same terms. What an "affidavit" really means is
the written state-
ment made on oath (or on a solemn afiirmation etc.), and not the aflirmation or
oath itself.

Etyrnologically, the root of the word "aflidavit" is the medieval Latin

"fidus", which means
trust. From this root, the word "afiidare" was derived in medieval Latin, and
it meant "has
stated on oath". From that, the word "affidavit" is derived. Hence, the
dictionary meaning of
"afiidavit" is a written statement confirmed by oath, to be used as judicial
proof*. According to
Wharton5, "aflidavit" is a written statement sworn before a person having
authority to adminis-
ter an oath.

1. See section 3A (proposed), Para 3 .96, infra.

2. See new section 3A.

3. Section 3(37).

4. Concise Oxford Dictionary (1964). under "atfidavit" page 27.

S. Wharton, Law Lexicon (1953), page 38.

14

15

3.5. It may be noted that in England, the practice of taking evidence by

afiidavits originated if

in the Court of Chancery. Following the practice of the civil law, the Court
of Chancery, for many p',-agcfice.
centuries, decided causes upon aflidavit evidence, with only occasional oral
cross--examination.'
For example, the rule in force in Chancery", in 1861, provided that "it shall
not be competent for
the plaintiff or any defendant to require, by notice or otherwise, that the
evidence to be adduced
shall be taken orally". As regards oral evidence, for some time, English law
allowed only oaths.
The position was later altered by statutes, which allowed aflirmations3.

Even recent English practice indicates that the word "aflidavit" is generally
used to denote
a statement in writing on oath (or on aliirmation) . Thus, the rules of the
Supreme Court' provide
that every aflidavit shall be instituted in the cause or matter in which it is
sworn, and that aflidavits
must be confined to such facts as the witness is able of his own knowledge to
prove. These rules
also speak of the aflidavits being "filed" (in the Registry), prohibit
alteration in aflidavits except
under certain conditions and so on.

Similarly, the County Court Rules" provide that afiidavits shall be expressed
in the first per-
son, drawn up in paragraphs and numbered, and made by some person who has
knowledge of the
facts etc. These provisions are, unfortunately, not noticed by text--book
writers on the interpre-
tation of statutes when they discuss the meaning of aflidavit. The Bankruptcy
Rules have simi-
lar provisions". The important point to be made is that "aliirmation" and
"declaration" primarily
denote a substitute for the formality of oath.

3.6. Indian legislative practice also regards "aflidavit" as referring to the

written statement Indian

"on oath" etc., and not to the oath or afi'irmation. In our procedural codes,-
-for example, practice.
in the Code of Civil Procedure7-----"aflidavit" means not the process or
ceremony (oath or
aflirmation) but the document which is on oath or afiirmation. In the Code of
Criminal Proce-

dure, 1898, section 539, both the words "aflidavit" and "aflirmation" were
used, but in the new

Code", only the word "affidavit" is used, in conformity with the draft
suggested in the Law Com-
missiou's Report".

3.7. In the Oaths Act, in the provision" conferring power to Oaths Act
administer oaths or
aflirmation for the purpose of aflidavit, the language used (so far as is
material), is as fo1lows:--

". . .any court, Judge, magistrate or person may administer oaths and
affirmations
for the purpose of aliidavits, if empowered in this beha1f----
(a) by the High Court, in respect of affidavits, for the purpose of judicial
proceed-
ings ; or

(b) by the State Government, in respect of other allidavits."

Under the same Act", a witness, interpreter or juror may, instead of making
an oath, make
an aflirmation. liorms of oath and aflirmation are also given in the Schedule
to the Act, read
with section 6. '1 his discussion is intended to show that the word
"aflirmation", in the majority
of Indian statutes refers usually to the formality substituted for the word
"oath". Hence, the
Word "alfirmation" is not appropriate to denote the writing.

1. Best, Law of Evidence (1922), page 102, paragraph 118.

. Chancery Consolidated Orders, 1861, Order 19, rule 3, quoted in Best, Law
of Evidence (1922), page 102,
footnote. '

. The principal Acts relevant to aflirmations are the Oaths Acts, 1888 and
1961. Eng.
. Order 38, rules 2 and 3, R.S.C. (Eng.)

. Order 20, rule 19, County Court Rules (Eng.)

. Bankruptcy Rules, 1952, Rules 55-60 (Eng.)

. Order 19, rule 1, Code of Civil Procedure, 1908.

. Section 297, Cr. P.C., 1974.

9. Law Commission, 41st Report, Vol. 1, page 355, para. 46.4.

10. Section 3(2), Oaths Act, 1969.

11. Section 5, Oaths Act, 1969 (Central Act 44 of 1969).

I0

OO\1O\LII-1&9'

Recommendation

Section 3(3A)--
definition of
'aircraft' (New).

Section

3(4)--:-
'barrister'.
Section 3(5)
"British India."

Section 3 (6)
"British
possession".
Section 3 (7)
"Central Act".

Section 3 (8)
Definition of
"Central
Government".

Section 3 (9)
"Chapter."

Section 3 ( 10)
"Chief
Controlling
Revenue
Authority".

Section 3(10A)
Definition of
"Clause" (new).

16

3.8. We accordingly recommend a re-draft of the definition to indicate~the

meaning accura-
tely, on the following lines :--

REVISED SECTION 3(3)

(3) "ct[fi:lttviz" shall mean a statement in writing purporting to be Cl

statement of
facts, signed by the per.n.m malting it and confirmed by him by oat ."

3.9. The Act does not define the expression "aircral't", which is now
frequently used
in Central Acts. It is necessary to define it in the General Clauses Act.

Section 2(1) of the Indian Aircraft Act, 1934, provides that "aircraft" means
"any
machine which can derive support in the atmosphere from reactions of the air,
and includes
balloons, whether fixed or free, airships, kites, gliders and flying machines."
Section 2(i)
of the Air Corporations Act, 1953, is in the same terms. The Indian Carriage
by Air Act,
1934 does not contain any definition of "aircraft". Section 4(ii) of the Air
Force Act, 1950,
defines "aircraft" as including "aeroplanes, balloons, kite balloons.
airships, gliders or other
machines for flying."
We recommend that on the lines of the definition in the lndian'Aircrat't Act,
1934, a
definition of 'aircraft' should be inserted in the General Clauses Act. It
will be as follows:--

(3A) "at'rcra,t't" shall mean any machine which can derive support in the
atmosphere
from reactions of the air, and shall include balloons, whether fixed or free,
airships, kites,
gliders and flying machines.

3.10. Section 3(4) defines the expression "barrister". It needs no change.

3.11. Section 3(5) defines the expression "British India". It needs no change.

3.12. Section 3(6) defines the expression "British possession". It needs no

change.

3.13. Section 3(7) defines the expression "Central Act". It needs no change.

3.14. In the definition of "Central Government", in section 3(8), we propose

no change.

3.15. Section 3(9) defines the expression "Chapter". It needs no change.

3 16.
no change.

Section 3( I 0) defines the expression "Chief Controlling Revenue Authority".

It needs

3.17. A new definition of the expression "clause" is proposed to be added.

Just as the
expression "section" and "sub--section" have been defined in the existing
Act', it would be
convenient to define the expression "clause" as well. This will standardise
the use, of these
devices also. It will be as follows :--

Sectfon 3(10A) New

"(10A) 'clause' shall mean----

(a) £1 sub-division of the sub-section in which the word occurs. or

(b) where there is no sub-section in the section, a sub--division of the

section in
which the word occurs."

1. Section 3(54) and 3(6l).

b~

17
3.18. In section 3(11), which contains the definition of "Collector", the
expression Section
"Presidency Towns" should be replaced by a specific mention of the three
cities (Bombay, ~~C0"ect0,v_
Madras and Calcutta). An amendment is recommended for the purpose. The
revised clause
should be as follows :

Revised section 3 ( I I)

3(l1) "Collector" shall mean. . .the chief ofiicer--in--charge of the revenue

adminis-

tration of a district. and shall include the Collector of C(l/('IlIf(l,

Madras' or Bombay :

Section
3 ( 12)
"Colony".

Section
3 ( 13)

3.19. Section 3(l2) defines the expression "Colony". It needs no change.

3.20. Section 3(]3) defines the expression "commencement".

Certain points as to the date of commencement are discussed later}

It needs no change.

3.21. Section 3(/4) defines the expression "Commissioner". It needs no change.

section
3(1 )

"Commisioner".

Section
3 (15)
"Commissioner".

3.23. Section 3(l6) defines the expression "Consular Officer". There has been
an inter- Section 3(16)
national Convention on the subject. In the light of the provisions of the
relevant convention'~', we OC;§(';':l'_'.l_"'
recommend that the expression 'consular officer' should be re--defined as
follows3 2

3.22. Section 3(l5) defines the expression "Constitution". It needs no change.

"Consular Officer" shall mean any person entrusted with the exercise of
consular
functions, irrespective of his designation, and shall include Consul--
General, Consul, Vice-
Consul and Consular Agent."

3.24. A definition of the expression "daughter" is proposed to be added, as a

useful pro- Sectiqrt 3(16A)
. . ._ . . . . ' , . . . Definition of
vision, on the lines of the existing definition of son. The adoption of
daughters is permitted «damzhte,» (new,
in certain cases.' It is felt that section l3(I), under which words of the
masculine gender are
taken as including the faminine gender, may not necessarily have the effect
of extending the
definition of 'son' to the construction of the word 'daughter'. We, therefore,
recommend insertion

of the following new definition.

Section 3 ( 16A) (New)

(16A) "daughter", in the case of any one whose personal law permits adoption,
shall
include an adopted daughter:-"

3.25. A definition of the expression "day" is proposed to be added. Such a

definition will Section 3(16B)
be similar to the existing definition of "month". The proposed definition
follows the existing .I3f:,fiy'7~'"°n of
statutory precedents", and will be as follows :

Section 3(I6B) (New)

(16B) "day" shall mean a period of twenty--four hours beginning or inid-
nielit.
3.26. A definition of the expression "diplomatic officer" is desirable. on the
pattern of the Section 3(16C)

definition of "consular officer" in section 3(16). as proposed to be amended.

It may be noted ;)%liP1°§P"'l"
CCI' .

1. See discussion under section 5 in Chapt--er 4, infra.

2. Vienna convention on Consular Relations, 1963, Article 1(1) (d).

3. The draft is based on the Ministry of External Afi"airs' letter (S. No.
207) No. D--23l9,"L&T/63 (No. 4/45! (2)
63 dated 6-3-1963, to the Law Commission.

4. See sections 7 and 8, Hindu Adoptions and Maintenance Act, 1956, (76 of
1956),
5. This amendment should not apply to existing Acts. See section 3A
(proposed).
6. (a) Section 2, Factories Act, 1948 (63 of 1948).

(b) Section 2, Weekly Holidays Act, 1942, (18 of 1942).

(c) Section 2, Plantations Labour Act, 1951 (69 of 1952).
(d) Section 2, Mines Act, 1952 (35 of 1952).

"Commencement".

18
that there is an international Convention' on the subject. In the light of
the relevant conveIItion,2
we recommend that the expression 'diplomatic olliccr' should be defined as
follows:

Section 3(I6C) (New)

(]6C) "diplomatic officer" shall mean a member of the staff of a diplomatic

mission
having diplomatic rank, and includes an ambassador, //n'gl1 commiss1'oner,
€HV0.\', 77157155187
and charge dnflaires ;

Section 3(17) 3.27. The definition of "District Judge", in section 307), is as

follows :--
District ' ._
Ind" "District Judge" shall mean the Judge of a principal Civil Court of
Original jurisdic-

tion. but shall not include a High Court in the exercise of its ordinary or
extra-ordinary
original civil jurisdiction."

This definition uses the words "shall mean", and not the words "includes" or
the words "shall
include". Therefore, if the definition, as it is worded, is taken literally,
no one except "the judge
of a principal Civil Court of original jurisdiction" can come within it. The
use of the article
"the" before the word "Judge" (in the definition) is significant. It has a
specifying or particularis--
ing effect, as opposed to the indefinite and generalising force of "a", and
denotes that it is not
any Judge of a principal Civil Court of original jurisdiction that can be
termed as a District
Judge, but that only the sole presiding Judge of a principal Civil Court of
original jurisdiction can
be called a District Judge. This was the View taken in a Madhya Bharat case.3

gafiiaw as 3.28. The contrary view has, however, been taken in an Assam case.'
holding that "District
"District Judge" in section 7(3) (b) of the Industrial Disputes Act includes
an Additional District Judge
]"d3°"' by virtue of this clause.-'

Of course, the definition of the term "District Judge" cannot be used for
finding out the
meaning of the term "District court."" But, where the term "district judge"
is used, difiiculty
is created by the conflict of views referred to above.

ggfyzuégndgigrwra 3.29. The question, therefore, usually arises whether a

statutory provision which confers
in',-¢1_,,¢,-on to ' powers on a "District Judge" refers to the District
Judge as a persona designata, or, whether it
3133:" refers to him as the presiding oflicer of the court. In the latter
case, the usual provisions applicable

to the district court apply. According to Osborn's Concise Law Dictionaryi, 8

a persona designata
is "a person who is pointed out or described as an individual, as opposed to
a person ascertained
as a member of a class, or as filling a particular character." When a special
or local law provides
for an adjudication to be made by a constituted Court---- that is, by a Court
not created by a
special or local law, but to an existing Court----the special or local law,
in fact generally enlarges
the ordinary jurisdiction of such a court." -Thus, where a special or local
statute refers to a
constituted court as a court, and does not refer to the presiding officer of
that court, then -the
reference cannot be said to be a persona designata. But the reverse
proposition," that where
the reference is to the presiding officer of a court, it is intended to be
taken as referring to him
as a persona designata and not as a court, may or may not be true.

1. Contrast the definition in the Diplomatic Officers (Oaths and Fees) etc.
Act, 1948 (41 of l948)and section 2.of
the Special Marriage Act. 1954 (43 of 1954).

2. Vienna Convention on Consular Relations, 1963. Article l(l)(d).

3. Mangharam v. K. B. Kher, A.I.R. 1956 MB. 183, 187.

4. G. C. Bezbarna v. State, A.l.R. I954 Assam 161, 165, para 9.

S. For the recommendation relvant to the definition, see infra para 3 .30.

6. D.C.S. Bureau v. United Concern, A.I.R. 1967 Mad. 381, 384, para 6
(reviews cases) (Case under section

62(1), Copyright Act)

7. Osborn, Concise Law Dictionary, 4th Ed.

8. Rant Chandra Aggarwal V. State of U.P., A.l.R. 1966 S.C. 1888.

9. Ram Chandra Aggarwal V. State of U.P., A.l.R. 1966 S.C. 1888.

10 See Bimla Rani V. B.M. Finance, AIR 1972 All. 242, 245.

. -.¢-- _......___.

19
3.30. In order to avoid doubts' on the points discussed above, and to resolve
the conflict of
views, it is desirable to provide that the expression "district judge" does
not include an additional
judge of the district court. We recommend an amendment as follows :--

Revised Section 3 ( 17)

(17) "District Judge" shall mean the Judge of a principal Civil Court of
original jurisdic-
tion. but shall not include-

(a) An Additional Judge of such Court, or

(b) the High Court in the exercise of its ordinary or extra--ordinary civil
jurisdiction.

3.31. We now come to the definition of "document". The definition of "document"

will
be better understood if four elements are studied separately. The first _is
the concept indicated
by the word "matter", which may be described as the "mental element". The
matter recorded
on the document here means an idea,---what is regarded in Copyright law as
the proper sub-
ject-matter of copyright. The second element of the definition is indicated by
the words "written
etc.". This may be called the manual (or mechanical) element; and coupled
with this is
the third element of symbols, indicated by letters, figures or marks. These
symbols have mean-
ing only because they are intended to be used, or may be used, for the
purpose of recording the
idea represented by the first element. Finally, there is the substance upon
which these pro-
cesses are brought to bear, i.e., upon which the mental element is recorded
(by mechanical
means) through symbols. This last one is the material--a purely physical
object.

It is a defect in the present definition that it defines a "document" in terms

of what has
been described above as the mental element. The ordinary meaning of the
expression "docu-
ment" is the material or substance upon which (as explained above) the other
processes operate.
Notwithstanding the fact that a similar defect is found to exist in the
definition in the Indian
Penal Code, and in the Evidence Act, and notwithstanding also the fact that
the present defi-
nition has been there for almost a century, we consider it proper to modify
it so as to bring it
nearer to the reality. The starting point for the definition should be the
substance.

3.32. With reference to some of the processes enumerated above} certain

observations. are
in order. So far as the word "matter" denoting the intellectual or mental
element, is concerned,
nothing further need be said.

So far as the manual process of recording the matter is concerned, the

present wording is
somewhat narrow, inasmuch as it does not cover the act of inscribing. It is
considered that
when a matter is inscribed on metal or stone or even on paper, the process
can better __be called
"inscribed" rather than "written" etc., though, perhaps, the word "expressed"
might cover it.
The illustrations to the definition in the Indian Evidence Act show that such
inscriptions are
"documents". The word "written" does not occur in the Evidence Act or in the
Penal Code;
it can, however, be retained here, as useful. The word was added in the
General Clauses Act
at the Select Committee stage. The definition of "writing" may also be seen.

In addition to the process of writing, describing etc. specifically

enumerated, the definition
should, in our opinion, be widened to include such new processes as may, or
may have already,
come into existence for the purpose of recording an idea.

These processes could be divided into two classes--(a) processes analogous to

writing,"
etc., and (b) processes not analogous to writing etc. We think that all such
other processes
should be brought within the fold of the definition.

3.33. We next come to the third element of a "document", namely, the symbols.
Here,
the present definition is confined (at least on one view) to the specific types
of symbols enume-
rated therein. We are of the view that this part of the definition should be
widened so as to

l. Para 3 .27 and 3.28, supra.

2. Para 3.31, supra.
3. See definition of "writing."

15 M of Law/744

Recommendation

Section
3 ( 1 8) defi-
nition of

"document".

Four
processes.
Stephen':
definition.

The words
"which is
intended
etc."

examined.

Admis' sibility
of tape-
recordings.

to

include (a) symbols analogous to those which are already mentioned, and (b)
methods which
are not analogous to symbols, but which can come into existence later or may
have come into
existence already. No doubt, this last mentioned category is wide, but we
have particularly in
mind Cinematography films and tape--records1 (these are merely examples).

Incidentally, we may mention that both the words "figure" and "marks", used
in the present
definition, are ambiguous. If only the numerical figures are intended, then
paintings would be
left out. If, again, only visible marks conveying the idea by themselves (and
without further
efiord) are intended, then mechanical recordings are left out. What the Penal
Code describes
as "visible representations"? should be covered.3 as also what may be called
acoustic represen-
tations.

Finally, the substance upon which all these processes take place should, as
we have already
indicated} be the starting point for the definition.

3.34. Stephen's difinition in his Digest of Evidence5 is simpler. He definies

"document"
as any substance having any matter expressed or described upon it by marks
capable of being
read. The definition is useful as making it clear that the substance
constitutes the document.

The definition by Stephen is, however, narrow, in one respect. It lays

emphasis on what
can be read. Stephen was, perhaps, thinking of the conventional method of
writing, which is
the normal device adopted by literate persons to communicate their ideas--
including, of course,
printing. '
3.35. So much as regards the principal elements of the definition of document.
Now, a
verbal point may be mentioned. The words "which is intended to be used or
which may be
used for the purpose of recording that matter", in the existing definition
raise one question.

Are these words to be read with----

(i) 'matter', or
(ii) 'letters, figures or marks', or
(iii) 'means'.
(iv) 'substance' ?
The first interpretation would involve repetition of 'matter', which makes it
meaningless.

The second interpretation is a plausible one, but the, the plural "letters"
etc..goes ill with
the singular "which is". The third also suflers from the same defect, as
"means" has been used

- in the plural in the definition. The fourth is in harmony with the singular.
Since it is the ex-

pression "wliic'.i is" which has caused difficulty, it is proposed to make it

plural, and to link it
up with "means". The means could be used, or are intended to be used. -for
recording the. idea.

3.36. The (Indian) Official Secrets Act, 1923, defines "document" as including
'a part of
document. But such a clarification appears to be unnecessary in this Act. 1 "'
7'

3.37. As regards tape--recording,"* we may note that they have now been in
commercial
use for many years, and they have been held by the Supreme Court to be
admissible in evi-
dence7 in several cases. The question whether they are "documents" was not at
issue inthose
cases."

. As to ta.pe-record", see para 3 .37, infra.

. Sections 124A, 153A, 499, I.P.C.

. See also para 3 .38 infra.

. Para 3 .31, supra.

. Stephen's Digest of Evidence, Article 1.

. Para 3 .33, supra.

(a) Pratap Sinh v. State of Punjab, (1964) 2 S.C.R. 733 A.l.R. 1964 S.C. 72,
86, para 15.
(b) R.M. Malkani v. State of Maharashtra, A.I.R. 1973 S.C. 157 (reviews
cases).

(a) Yusuflalli v. State ofMaharashtra, A.I.R. 1968 S.C. 147 (V. 55) ; (1967) 3
S.C.R. 720. '
(b) Manindra Nath v. Biswanath, 67 Cal. W.N. 191.

(c) Rup Chand v. Mahabir Prasad, A.I.R. 1956 Punj. 173.

90 \lO\U'-hi'-'?\7*-'

J:

21

In Australia, the problem was exhaustively argued in R. v. Travers} and the

New South
Court'-' of Criminal Appeal there held that a record of a conversation (or of
any other event)
was just as admissible as an accousztc reproduction, and that the rules which
related to the supp-
lementing of the senses by the use of scientific instruments should be applied
to recordings of the
type in question. From this decision, the High Court refused special leave to
appeal.3

3.38. In England, section 6(1), Evidence Act, 1938 provides that "document"
includes
books, maps, plans, drawings and photographs. Although the definition is
plainly not exhaustive,
a view has been expressed that it is doubtful whether a tape--recording, or a
computer print-out,
would be held to be a document within the Act. The Criminal Evidence Act,
1965, under
which "document" includes "any device by means of which information is
recorded or stored",

is more up to date.

In India, in the Press Emergency Powers Act,' it isexpressly stated that

"document" in-
cludes also any painting, drawing or photograph or other visible
representation.

37.39. Finally, it may also be useful to add an Explanation that the means
employed for
forming the letters etc. should be immaterial.

3.40. In the light of the above discussion, the following re-draft of the
definition of "docu-
ment" is recommended:---

'document' shall include any substance having any matter written, expressed,
inscribed,
described or otherwise recorded upon it by means of letters, figures or marks
or
by any other means, or by more than one of these means which are intended to
be used or which may be used for the purpose of recording that matter.

ExpIz.mati(m.----It is immaterial by what means the letters, figures or marks

are formed."

1 3.4]. Section 3(l9) defines an "enactment". The decided cases on this

expression, which
occurs in several sections of the Act,5 are fairly numerous. For example, it
has been held that
an "enactment" would include any Act (or a provision contained therein) made
by the Union
Parliament or the State Legislature." Again, since "enactment" is defined to
include also any
provision of an Act, section 6 would apply to a case where not only the
entire Act is repealed,
but also where any provision of an Act is repca1ed.7

3.4lA. The expression "enactment" occurs at several places in the

Some of the important sectionss using the expression are as folIows:--

General Clauses Act.

Section» 6--Repeal of an enactment---effect of.

Section 8---Construction of references to repealed enactments.
Section 12--Duty to be taken pro rata in enactments.

Section 26---Provision as to offence punishable under two or more enactments.

l. R. V. Travers (1958) S.R. (N.S.W.) 85.

2. See--(a) 31 Aust. L.J. 895 ;
(b) 37 Aust. L.J. 145.
3. See (1957) 98 C.L.R. 674. V
4. Section 2(6), Press Emergency Powers Act, 1931 (repealed).

5. See, infra, para 3.4lA.

6. State afPunjab Sukh Deo Sarup Gupta A.I.R. 1970 SC 1661, 1942, para 3,
aflirming A I R 1965 Punj 399
7. Godhra Electricity Co. v. Samalal, A.I.R. 1967 Guj. 772, 776, para 6. ' '
'
8. The list is illustrative only.

Recom-
mendation.

Section
3, ( 19)-
"enactment".

Sections
containing
the expres-
sion "enact-
ment".
Section
3 ( 1 9) -
"enactment"
(application
to repeal) .

Section 8 and
"Enactment".

- instruments shall be construed as references to the re-enacted one.

22

Questions of the application of the definition of "enactment" in section 3(l9)

can arise in
relation to all these section. A discussion of such questions in relation to
two important sec-
ticns----see1ions 6 and 8--is offered below.

3.42. The operation of the definition of "enactment" in relation to the repeal

of a law (sec-
tion 6 of the Act) may be illustrated by analysing certain frequently
recurring situations con-
cerning repeal. ~

(a) A Central Act may, for example, repeal a State Act} It may repeal or have
the effect
of repealing, (because of the generality of the words employed), a law in a
Native State which
was not described as an "Act". This situation arose, for example, when the
Special Marriage
Act, 1954, repealed not only the Special Marriage Act, 1872, but also "any
law corresponding
to the Special Marriage Act, 1872, in force in any Part B State" etc.'

(b) A Central Act may, similarly, have the etfect of repealing a Portuguese
or French law
because of the generality of the words employed.

(c) Again, a Central Act may repeal a British Statute applicable to India.
Many of these
were repealed in 1960, on the recommendations of the Law Commission.3 A few
still survive.

(d) Then, a Central Act may repeal a State Act as in force in a Union
Territory by virtue
of the notification made by the competent authority under the relevant law.

These cases do not exhaust all the situations. But the point intended to be
made is that
in most of them, the law repealed is one which does not find specific mention
in the definition of
"enactment" in the General Clauses Act.
3.43. The approach adopted by the draftsman with reference to repeal (and
savings requi-
site on repeal) can also be usefully illustrated. Sometimes, for example, the
draftsman may
assume that the repeal section (section 6) applies to the situation.'
Sometimes, the draftsman
provides that the provisions of section 6 "shall also apply to the repeal of
the corresponding law
as if such corresponding law had been an enactment".5 Sometimes, where
section 6 would
not definitely apply, because the language used is not "repeal", but the
formula used is, "cease
to be in force", the draftsman merely introduces a brief saving as respects
"anything done or
any action taken" under the law which is to cease to have effect." Sometimes,
the draftsman
provides not merely for the application of section 6, but also for the
application of the whole
General Clauses Act, by providing that "the provisions of the General Clauses
Act, 1897,
shall apply to the repeal of the said Act as if the said Act were a Central
Act.""

Sometimes, the draftsman reproduces almost the entire substance of section 6,

General
Clauses Act.3

3.44. The matter 'can also be considered in relation to section 8. Section 8

provides that
where an enactment is repealed and re-enacted, references to the repealed
enactment in other
The expression "enactment"
in section 8 came up for consideration before the Supreme Court." The
material facts were
these: Under the East Punjab General Sales Tax Act, 1948, section 6 read with
Schedule B.
entry 37, the following goods were exempt from tax:--

"All goods on which duty is, or may be, levied under the Punjab Excise Act,
1914."

. For example, see section 25! 1), Prevention of Food Adulteration Act, 1954
(37 of 1964).

. Section 51(1), Special Marriage Act, 1954.

. Fifth Report of the Law Commission.

. For example, section 25(1) , Prevention of Food Adulteration Act, 1954 (37
of 1954).

. Section 51(3), Special Marriage Act, 1954.

. Section 26, Comptroller & Auditor General, etc. Act, 1971 (56 of 1971).

. Section 45(2), Haryana and Punjab Agricultural University Act, 1970 (16 of
1970) [repealing a Punjab Act.]
. For example, section 87, Andaman and Nicobar Co-operative Societies
Regulation, 1973 (3 of 1973), [repealing

the Co-operative Societies Act, 1912 in relation to Andaman and Nicobar].

9. State ofPunjab v. Sukh Dev Sarup Gupta, AIR. 1970 S.C. 1641, 1642, para 3.

W\l0\<.IIJ>DJI~J"'

~44

23

In 1955, Parliament enacted the Medicinal and Toilet Preparations (Excise

Duties) Act.
Section 21 of the Act repealed any State law corresponding to the Act, in
force in any State.
The question arose whether the exemption from sales tax could be claimed in
respect of goods
on which duty was levied under the Central Act of 1955. The argument of the
State was that
since the exemption in Punjab Act of 1948 referred to the "Punjab Excise Act.
1914", which
had now been repealed, no exemption could be claimed. The State further
argued that section
8 of the General Clauses Act (relating to construction of references to re-
enacted Act) did
not apply, because the Act repealed was not a Central Act and, therefore, was
not an "enactment".
The Supreme Court rejected this argument and held that section 3(l9) of the
General Clauses
Act did not contain any limitation that it would apply only to Central Acts.

3.45. Since an Ordinance is "promulgated" and not "enacted", the Rangoon High
Court Ordinances
observed' that an Ordinance is not an "enactment", and the High Court felt
"considerable hesita-- ¢a$ifi';'ilIl,'"8
tion" in holding that the repeal of an Ordinance would attract the usual
provisions regarding "enactment".

repeal of enactments.

It has now been held that the expression "enactment" includes an Ordinance,
so that
section 8 applies where a Central Act repeals and re-enacts an Ordinance made
by the
President.'

3.46. In order that the definition of "enactment" may indicate more accurately
what its
true scope is, it needs to be re-drafted. The definition should be framed in
wide terms, so as to d,f,'§§,'f";';',;,
include (i) Central Acts, as well as all (ii) State and Provincial?' Acts,
and (iii) Acts of former definition of
Indian' States, and also (iv) All Regulations and Ordinances, whether made
after or before "°na°'m°m"'
the Constitution." It should also cover laws of French etc. possessions,"
which were passed
when those possessions were not part of India.

Specific mention of Regulations of the Bombay etc. Code should be omitted, as

unnecessary
at the present day. We, therefore, recommend a re-draft of the definition of
"enactment" as
follows :--

Revised section 3 ( 19)

3( 19) "enactment" shall include any law passed or made by any legislature or
other authority
acting in a legislative capacity, and shall also include any provision
contained in any such law,
but shall not include a statutory instrument.

3.47. Section 3(20) defines the expression "father", and needs no change. Sem
3 20 *
"fath'e)i"". ( )
Section 3(2l)
3.49. Section 3(22) defines the expression "good faith". It needs no change.'
gficnzincigl 2°?'
" tron .( ")
3.50. Section 3(2.3) defines the expression "Government". It needs no change.
siofignfgigg)
' "G g'.
3.51. Section 3(24) defines the expression "Government securities". It needs
no change. SCC(f).l.'t")eIll.n;l:;l;t)
"Governnient
3.52. (a) The existing definition of "High Court" does not cover criminal
proceedings. It §::,t:§('25
may be noted that the General Clauses Bill of 1897 (as introduced) contained
a separate "High Court)'.

clause for criminal proceedings also. But the Select Committee rejected" this
change, stating that

3.48. Section 3(2l) defines the expression "financial year". It needs no

change.

1. S. K. Roy Chowdhury v. The King, A.I.R. 1941 Rangoon 1, 4 (Roberts C.J.).

2. Hareobhai v, State, A.I.R. 1967 Guj. 227, 245, para 29.

3. Cf. para.3 .42(a) supra.

4. Cf. para. 3 .42(b) supra.

5. Cf. para. 3.45 supra.

6. Cf. para. 3 .42(c) and (d) supra.

7. For a full discussion as to good faith' See A.I.R. 1969 Bom. 127.
8. Gazette of India, 6th March, 1897 Part V, page 77 (Report of the Select
Committee).

Section 3(26)
"Immovable
property:
Section 3(27)
"Imprisonment."

Section 3 (28)
"India".

Section 3(29)
"Indian law".

24

the arrangements relating to the Recorder of Rangoon and Criminal Courts in

Burma _were
complicated. This reason does not hold good now.

(b) The definition in section 4 of the Code of Criminal Procedure, 1898,

provided that
where, with reference to criminal proceedings, no High Court is established
in any part of India,
the expression "High Court" means such oflicer as the State Government may
appoint him
in that behalf. This provision, however was obsolete.

We think that there is no need to exclude criminal proceedings from the

definition at this
stage. Also, instead of defining a "High Court" as the highest court of appeal
etc. and then
excluding the Supreme Court by express words, it is preferable to re-draft
the definition so as
to include the court of Judicial Commissioners wherever they exist.

(c) In the light of the above points, a revised definition of the expression
"High Court'?
is recommended as below: '

Revised section 3(25)

3(25) "High Court", used with reference to civil or criminal proceedings,

shall meanitlié
High Court or the Court of Judicial Commissioner having jurisdiction over the
part of India
which the Act or Regulation containing the expression operates;

3.53. Section 3(26) defines the expression "immovable property." It needs

nochange:

3.54. Section 3(27) defines the expression "imprisonment". It needs no change.

3.55. Section 3(28) defines the expression "India". It needs no change.

3.56. Regarding section 3(29), which defines "Indian Law", there is a
suggestion' to be
considered.

Sub--section (l) of section 4A of the General Clauses Act, 1897, makes

applicable to
"Indian laws" certain definitions contained in the General Clauses Act. The
term "Indian law"
is defined in clause (29) of section 3 of the Act as follows--

" 'Indian law' shall mean any Act, Ordinance, Regulation, Rule, order, byelaw
or other
instrument which before the commencement of the Constitution had the force of
lain
in any province of India or part thereof, or thereafter has the force of law
in any
Part A State or Part C State or part thereof, but does not include any Act of
Parlia-
ment of the United Kingdom or Order in Council, rule or other instrument made
under such Act." " ' "

It will be apparent from the above definition (of the expression "Indian law")
thatit will
apply only to laws in force in any area, which immediately before 1st
November was included in a
part A State or Part C State, but not to laws in force in any area which,
immediately before that
date, was comprised, in a Part B State. Now, in almost all Madras Acts,
expressions such as
"Central Government", "State Government", "Oflicial Gazette", "High Court"
etc. are used with--
out specifically defining them in the respective Madras Acts, and these
expressions will, -by 'virtue
of sub--section (1) of section 4A, have the meanings assigned to them in the
General Clauses
Act. The question arises whether the definitions of various expressions
enumerated in' section
4A(l) will apply to a Madras Act extended to the Kanyakumari district and the
Shenoottah
taluk of the Tirunelveli district (which district and taluk were immediately
before the 1st
November, 1956, comprised in a Part B State, namely, Travancore-Cochin.) As
the position in
this respect is not very clear, the suggestion is that the position shouldube
clarified.'

3.57. We have given thought to the suggestion} but we think that the better
course, at
this stage, would be for each State Legislature concerned to deal with the
matter and .to. make

1. Suggestion of the Government of the (erstwhile) State of Madras.

2. Para 3 .56, supra.
25s

a suitable provision for the interpretation of laws of a (former) Part A

State extended to
the area of a (former) Part B State. In so far as these laws relate to
matters within the State
List, an amendment to be made in the General Clauses Act cannot apply to
those laws. As
y regards matters in the Concurrent List, not many State laws would have been
extended to
those areas, because, on most matters included in the Concurrent List (e.g.
registration, succession,
procedure and the like), the position is that under the Part B States Laws
Act or similar other
laws, the relevant Central Acts on various subjects now extend to those
areas, and the General
Clauses Act, 1897 applies to those Central Acts for interpreting those
Central Acts. Even as
regards other maters in the Concurrent List, where the relevant Central Acts
are not extended,
no serious difliculty should arise because the analogy of the General Clauses
Act can be invoked.

3.58. Section 3(3.0) defines the expresion "Indian State". It needs no change.
Section 3(30)
"Indian State".
3.59. Several points require discussion regarding the definition of "local
authority" in section 'Slectzign 3(3I)
OC
3 (31 ) - authority".
. (1) Specific mention of Cantonment Board should be made.

(2) "Municipal Corporations" should be added.

l But it appears unnecessary to add specifically "municipality" or "local

Board" and other
authorities etc. referred to in the Bombay General Clauses Act or in the
Constitution, Seventh
Schedule, State List, item 5. These may be left to be covered by the
residuary words.

Even though a municipal committee may have a corporate personality,

ordinarily the two
(corporation and the committee) are understood to be distinct from each
other, and their
respective structure, powers and other matters indicate the difference in
status. The distinction
between "corporation" and "committee" corresponds to actual reality.

(3) The words referring to "body of Port Commissioners" may be retained. In

some
places (e.g. Bombay), there are Port Trustees. But it is considered
unnecessary to mention
them' specifically.

(4) Regarding the words "other authority" .....", in the definition, it has
been held
, that'-' a body of Port Commissioners is a local authority, irrespective of
whether it controls or
is entrusted with "the control and management of a municipal" etc. fund or
not. It was observed

that it is only in the case of other authorities that the requirement

expressed by these words is
to be satisfied.

(5) This part of the definition should be re--drafted, by taking in all

authorities entrusted with
local self-government or village administration.

(6) It has been suggested that the definition should include "any authority
declared to
, be a local authority under any enactment". But this does not appear to be
necessary. Such
declarations are not frequent, at least in Central Acts.

.(7) It may be noted that village Panchayats have been held to be local
authorities.

We recommend a re-draft incorporating the above points on the following lines

:--

Revised section 3(3I )

3(31) "local authority" shall mean a municipal corporation or committee, a

district -
board. a cantonment board or a body of port commissioners, or any other
authority
constituted for the purpose of local self-government or village
administration;

3.60. Section 3 (_ 32) defines the expression "Magistrate". It needs no

change. V section 3(32)_
V' 'V: V V' 7' ''iv" - uhiagistrateev.
1. Contrast section 3(27) of the Bombay General Clauses Act, 1904.
2. Official Assignee v. Trustees ofthe Port Trust, Madras, A.I.R. 1936 Mad.
789, 791.

Section 3 (3 3 )-
"master-".

Section -3 ( 34) «-
"merged
territories".
Section 3 (3 5 ) -
"month".

26

3.61. Section 3(33) defines the expression "master". It needs no change.

3.62. Section 3(34) defines the expression "merged territories". It needs no
change.

3.63. The Act defines a "month" as a month reckoned according to the British
calendar.
The definition is inaccurate. The word "British" should, in this definition, be
replaced by the
word "Gregorian".1 "British" is not an accurate description.' I

The English, Australian and Canadian Act define a "month" simply as a calendar
month.
But it may be noted that there are no other calendars in vogue in these
countries.

It may be noted that the calendar now used for civil purposes throughout the
world' is
called the Gregorian Calendar} after Pope Gregory XIII, who introduced it in
the 16th century.

The immediate predecessor of the Gregorian calendar was the Julian calendar
(called
after Julius Caesar). That calendar itself has a history, and can be traced
ultimately to
Egypt '

Throughout the Republican period, in Rome, the year normally contained 355
days, the
months being 29 or 30 days in length. An additional month, consisting
sometimes of 27 days
and sometimes of 28 days, was inserted, when considered necessary, after 23
February, the
five last days of February being then omitted. The additional month was
generally inserted
in alternate years, but the decision as to when it should be inserted lay
with the pontifices,
The pontifices often used to manipulate unscrupulously the lunar calendar to
their own advantage:
if it was desired to prolong or shorten the term of oflice of a magistrate or
to arrange an election
some time that appeared favourable, the calendar was adjusted to suit. It was
to end such
abuses that Julius Caesar decided upon a reform of the calendar ; at the time
of his pontificate,
the seasons had shifted about two months from their proper positions. He
called in the
assistance of the Greek astronomer, Sosigenes of Alexandria; and the calendar
was modified
into what is very much like its present form. (Sosigenes himself took the
idea of a solar
calendar from Egypt). The lunar month was thrown over completely. The normal
year was
to contain 365 days. an additional day being inserted every fourth year, thus
giving an average
length of the year of 3651» days, in close agreement with the length of the
tropical year.
The calendar year now became, for the first time, purely solar, and there was
no tendency
for the seasons to drift about.

3.64. The Julian method provided a calendar whose length closely approximated
to the
tropical year. Its device of 'intercalation' was also convenient. But the
basic defect was that,
in taking a period of 365!:days as the length of the tropical year, it over-
estimated this length
by a little more than 11 minutes 15 seconds or, more exactly, by 0.0073 days.
Thus, although
the error amounted only to one whole day in 128 years, it was constantly
increasing, and
over a long time became troublesome. This deficiency showed up in due course,
so that
further reform became imperative because of criticism by astronomers.

The Vatican made several unsuccessful efforts to reform the calendar. In the
16th
century, after further criticism, the Vatican again made an effort to reform
matters, and this
time it was successful. Pope Gregory XIII approached the governments of the
principal states
of the Holy Roman empire, and all agreed to accept his alterations. He then
promulgated
a new calendar, known as the Gregorian (or New Style) calendar, in a brief
issued in March,
1582. It was adopted, in due course, in several other countries.

. 3.65. Great Britain took a long time to make the change. It was in 1751
that a Calendar
(New Style) Act was passed,' and the Gregorian calendar was thereforth
ordered-" to be used

for all legal and public business.

1. Com re section 25 of the Limitation Act.

2. Comgame also the definition in the Jammu and Kashmir General Clauses Act,
1877 (20 of 1877),
which uses the word "Gregorian."

3. Encyclopaedia Britannica, Vol. 4, page 611.

4. The Calendar (New Style) Act, 1751. _ _

5. C. R. Cheuey (Ed.), Handbook of Dates for students of English HlSt0'')'

0945-)

27

In order to substitute "Gregorian", we recommend as follows :--

Section 3(35)--definition of 'month'

In section 3(35). for the word "British", the word "Gregorian" shall be
substituted.

3.66. Section 3(36) defines "movable property", and needs no change.

3.67. Section 3(37) defines "oath" as including a solemn aflirmation or

declaration in
case of persons by law allowed to do so. But it does not provide that the
oath should be
taken before a competent authority. We recommend that the definition should be
re--drafted
as follows so as to bring out this idea :

"(37). "Oath" shall mean an oath taken before a competent authority with
reference to
the Oaths Act, 1969, or any other law for the time being in force, and shall,
in
the case of persons by law allowed to aflirm or declare instead of swearing,
include
affirmation or declaration made before a competent authority with reference to
that

Act or law".

3.68. Section 3(38) defines the expression "offence". It needs no change.

3.69. and 3.70. Section 3(39) defines the expression "Official Gazette". It
needs no
change.

3.71. Section 3(40) defines the expression "Part". It needs no change.

3.72. Section 3(41) defines the expression "Part A State". It needs no change
. It is
useful only for existing Central Acts and Regulations.

3.73. Section 3(42) defines the expression "person". It needs no change.

3.74. Section 3(43) defines the expression "Political Agent". It needs no

change.

3.75. A definition of the expression "prescribed" is proposed to be added. It

is the usual
practice to insert a definition in each Central Act to the effect that (in
that Act), the word

"prescribed" means prescribed by rules made under that Act. It will be

convenient to insert
this definition in the General Clauses Act, so as to shorten the language of
Central Acts.

Section 3(43A) (New)

.3(43A) "prescribed" shall mean prescribed by rules made under the Central
Act or
Regulation in which the word occurs;

3.76. Section 3(44) defines the expression "Presidency town". It needs no

change.
3.77. Section 3(45) defines the expression "Province". It needs no change.

3.78. Section 3(46) defines the expression "Provincial Act". It needs no

change.

3.79. Section 3(47) defines the expression "Provincial Government". It needs

no change.

3.80. A new definition of the expression "public" is proposed to be added. It

follows

section 12 of the Indian Penal Code, and section 3(26) Of the Madras General
Clauses Act.
1891, but the words "or section" (of the public) have been added in order to
make it

comprehensive. The new definition should be as follows 2

15 M of Law/74---5

Section 3 (36)-
'movable
property'.

Section 3 (37)-
"oath".

Section 3(38)--
"Offence".

Section 3 (39)-
"Official
Gazette".

Section 3(40)----
"Part".

Section 3(41)--
"Part A State".

Section 3 (42)---
"person".

Section 3 (43 )--

"Political
Agent".

Section

3 ( 43A ) -
Definition of
"prescri bed"
(New )

Section 3 (44)----
"Presidency
town".

Section 3(45)----
"Province".

Section 3 ( 46 )--

"Provincial Act".

Section 3 (47 )-
"Provincial
Government".

Section
3 ( 47A )---
"public" (New)

Section 3(48)--~
"public
nuisance".
Section 3(49)---
"registered".

Section 3 (50)-----
''Regulation''.

Section 3(51)----
"rule".

Section 3(52)--
"schedule".
Section 3(53)----
"Scheduled
District".
Section 3(54)--
"section".
Section 3(55)----
"ship".

Section 3(56)---
"sign".

Section 3(57)-
"son".

Section 3(58)---
"State".

Section 3(59) ---

"State Act".

Section 3 (60 ) --
"State
Government".
Section

3 (6OA ) -
"statutory
instrument"
(New) .

Section 3 (61 )--

"sub-section".

Section 3(62 ) ~-
"swear".

Section

3 ( 62A) --
"Temporary
Act" or
"Temporary

Regulation".

28

Section 3 (47A) (New)

3(47A) "public" shall include any class or section of the public ,'

3.8]. Section C(18) defines "public nuisance", and needs no change.

3.82.

3.83.

3.87.

3.88.

Section

Section

. Section
. Section

. Section

Section

Section

3 (49) defines the expression "Re-_zis:cred". and nee-:i.~. no change.

3(50) defines the expression "Regulation". It needs no change.
3(51) defines the expression "rule". It needs no change.

3(52) defines the expression "schedule". It needs no change.

3(53) defines the expression "Scheduled District". It needs no change.

3(54) defines the expression "section". It needs no change.

3(55) defines the expression "ship". It needs no change.

3.88A. Section 3(56) defines the expression "sign". It needs no change.

3888. Section 3(57) defines the expression

3.88C
3.88D
3.88E

6: as

son . It needs no change.

. Section 3(58) defines the expression "State". It needs no change.

. Section 3(59) defines the expression "State Act". It needs no change.

. No changes are proposed in the definition of

"State Government", in section 3(60).

3.88F. A definition of "statutory instrument" is proposed to be inserted', as

a useful
The new definition should be as follows:

provision.

3(6OA) "statutory instrument"

3.89. Section 3(61) defines the expression "sub--section".

3.90. Section 3(62) defines the expression 'swear".

3.91. The expression "temporary Act" or

few proposed sections,"

Section 3 ( 60A) (New)

shall mean a rule, ztotifimzion, b_re--law, order. scheme,

form or other instrument made under an enactment;

It needs no change.

lt needs no change.

"temporary Regulation" has been used in a

and it is proposed to insert a definition of that expression in section '3.

The new definition should be as follows:

3(6

2A)

tion, whether made be

is to cease to have eflect or cease to 0

"Temporary Act" or temporary Regulation"

Section 3 (62.4) (New)

shall mean a Central Act or Regula-

fore or after the commencement of the Constitution, which

perate on a particular day or on the expiration

of a particular period or on the happening of a particular event;

[Existing section 3(62A) to be renumbered as section 3(62)]

1. See also Para 12.2 infra.

!'J

e.g

., section relating to the expiry of temporary Acts (proposed), Chapter 7, in

m.

x8

29

3.92. Section 3(62A) defines the expression "Union Territory". It needs no

change,

except renumbering. The renunibering is required because or the insertion of

a new definition m,u,nm,md as
Section
3(62B)--
"Union
Territory".
Section 3(63)--
"vessel".
Section 3(64)----
"will".
Section 3(65)----
"writing".
. . . . . _. ., . . " .. ,, Section 3(66)---
3.96. In section 3(66)--definition or the expression year «the existing word
British ~~,vca,~~v_.
should be replaced by the word "Gregoriaii", which is the accurate word. '1
he revised definition 'dmcndmfifll

should be as tollows :-- recommended'

or' "temporary Act".

3.93. Section 3(63) defines the expression "vessel". It needs no change.

3.94. Section 3(64) defines the expression "will". It needs no change.

3.95. Section 3(65) defines the expression "writing". It needs no change.

Revised section 3(66)

3(66) "year" shall mean a year reckoned according to the Gregorian calendar.

3.96A. We have finished discussion of section 3, which contains the principal

definitions. _3A"'

The section applies to the General Clauses Act, 1897, and to Central Acts
passed tliereaiter. Non-application
We are recommending the insertion of certain new definitions.' Some of them
may not be "f s"°t'°" 3""
appropriate for existing laws.' Hence, in respect of them, an exception is
required to the
general provision in section 3. l*or that purpose, we recommend a new section
as follows ;--

Section 3A (new)

3A. The definitions in section 3 of the following words and expressions, that
is to say.

(i) "daughter",

do not apply to--

(a) this Act so far as it relates to the period before the day' of . . . . .
. . .. or
(b) to any Central Act or Regulation made before the. . . . . day5 of . . . .
. . . . . . . . . .,
1974.
3.97. No changes are required in sections 4 and 4A. scction 4
and 4A.
3.98. A new section dealing with grammatical variations and cognate
expressions is Section 4B_
proposed to be added. Grammatical
Variations

and exclusion
3.99. It will also be useful to provide that definitions are subject to a
different intention 'ti, '::fril't';§:f"5

in the context. Such a provision will shorten the language of Central Acts.
Hericeforth, it (New).
will not be necessary to insert, in the definition clause in each Act, any
words excluding a

contrary intention in the context. The new section should be as follows:

Section 4B (New)

"4B. In every Central Act or Regulation, made on or after the . . . . . . . .

. . . . . . . . ..

day of . . . . . . . . . . . . . .3,

where a word is defined.

(a) the word shall have the meaning assigned by the

otherwise requires ;
(b) grammatical variations of that word and its cognate expressions shall
have corres-

ponding meanings, unless the context otherwise requires."

definition, unless the context

1. Section 3(62A) is to be added.

See para 3.91. supra.

2. See para 3.lA, supra.
3. Cf. discussion as to section 3(35)--"month", para 3 .63, supra.
4. Date of commencement of amended Act. ,
5. Date of Commencement of amending Act to be entered.
6. Date of commencement of amending Act to be entered.

Section 5-
Commencement
of Acts.

Position
in England.

CHAPTER 4

COMMENCEMENT

I ntroduclory.

4.1. Sections 5 to 13 of the Act c0r1tain~--as the heading above these

sections shows-----
general rules of construction, other than definitions. These sections fall
under two broad groups.
First, there are sections' dealing with the commencement and repeal of
enactments. Secondly.
there are sections" which provide for other general rules of construction.
The first group is
the more important of the two, in point of quality, because it deals with the
life of enactments.
The second deals with certain matters of detail, such as, time, distance,
rate of duty, gender
and number, and the like.
We shall first deal with the sections in the first group, and then proceed to
the second
group. Certain new matters, not dealt with in the present Act, will then be
dealt with.' In
the present Chapter, we concentrate on the commencement of Acts, Regulations
and Ordinances.

Commencement

4.1A. Section 5(1) of the Act provides that where any Act of Parliament is
not expressed
to come into "operation" on a particular day, it shall come into operation on
the day on which
it receives the assent of the President. The section also deals with pre-
Constitution Acts, but
we are primarily concerned with Acts of Parliament.

4.2 In England, before 1793, by a legal fiction an Act of Parliament took

efiect from
the first day of the session. But, in order to abolish a fiction "so flatly
absurd and unjust")
the Acts of Parliament (Commencement) Act, 1793 (c. 13), enacted that the
Clerk of
Parliament should endorse, on every Act, immediately after its title, the
date of its passing
and receiving the Royal assent. This endorsement is part of the Act, and is
the date of
its commencement, when on other time is provided.'

Before the Act of 1793, the rule was this: When no date was fixed, an Act came
into force on the first day of the session in which it was passed, and
consequently, all Acts
passed in the same session were considered to have received the royal assent
on the same
day. This was based upon a legal fiction, according to which .the whole of a
session of
Parliament was regarded as having been held on its first day. This meant that
if a statute
passed on the last day of the session made a previously innocent act criminal
or even capital,
all persons who had been doing it during the session, while the act was still
innocent, would
be liable to suffer the punishment imposed.5 This rule was obviously
inconvenient by reason
of its retrospective operation, and was often found to work injustice; where
two Acts passed
in the same session were repugnant, it was, as Lord Tenterden pointed out."
impossible to
know which of the two ought to be held to repeal the other. This rule was
abolished by the
Acts of Parliament (Commencement) Act, 1793, as already stated.

In England, unless a contrary intention clearfy appears, the expression "the

passing of
this Act," in a statute, means the date of royal assent, and not the date
fixed by the Act
at which all or certain parts of it are to come into operation.'
. Sections 5 to 8.

. Sections 9 to 13.

. 1 Bl. Comm. 70 n.

. Tomlinson v. Bullock, (1879) 4 Q.B.D. 230, 232 (Lush and Mellor JJ.).

. See the case of Attorney General v. Panzer (1772) 6 Bro. P.C. 486.

. R. v. Middlesex, (1831) 2 B&Ad. 818. 82]. 36 RR 758. _

. See Ex D. Rasbleigh, In re Dalzell, (1875) 2 Ch. D. 9, followed In R. v.

Smith (1910) l K.B. l725.

\X$U\->LaJI\)*-'

30

31

4.3. The Canadian Interpretation Act has a provision similar' to the English
Act of 1973
quoted below? :---

"The Clerk of the Parliaments shall endorse on every Act, immediately after
the title
thereof, the day, month and year when the Act was assented to in Her
Majesty's name;
such endorsement shall be taken to be a part of the Act, and the date of such
assent shall
be the date of the commencement of the Act, if no other date of commencement
is therein
provided."

4.3.A. As already stated', the present rule in England concerning the

commencement of
statutes is, that in the absence of a specially appointed day, statutes
commence their operation
upon receipt of the Royal assent. Unless a new statute provides otherwise,
the old law remains
applicable to all events occurring before the commencement of the new
statute.

4.3B. The Indian provision in section 4 follows the English law. But it
should be pointed
out that the date of assent is not the only alternative in regard to
commencement of an Act.
Sir Cocil Car5 has expressed the view that "in the rush of modern law--
making, many laws
tumble out of the oven half--baked ;"---not only in the sense that the
country may not be ready
for them, but also in the sense that admimstrative preparations and the
making of delegated
legislation may be necessary to bring statute into force. It may be noted
that such special
cases are dealt with by postponing the commencement of the Act to a date to
be fixed later.

As already stated, there are several alternatives as to commencement.

(a) In the first place, a specific future or past date may be mentioned in
the Act itself
as the date on which the Act shall come into force or shall be deemed to have
come into
force. In the former case (future date), the Act is prospective in its
operation; in the latter
case (past date), it is retrospective in its operation. Thus, the recent Code
of Criminal
Procedure" received the assent of the President on the 25th January, 1974,
but section 1(3)
of the Act specifically lays down that it shall come into force on the 1st day
of April, 1974.

(b) In the second place, no specific date may be mentioned in the Act, the
date may
be left to the Central Government to be appointed' by notification in the
Oflicial Gazette.
This device has been called by Sir Cocil T. Carrl as the "appointed day"
clause device. This
device is resorted to when postponement of the commencement of an Act is
necessitated by
reason of appointments to be made under the Act, or rules to be framed
thereunder and
other preliminary arrangements to be carried out for the proper and effective
functioning of
the Act, or by reason of any change being made by the Act in status or rights
the effect
of which it is desirable to delay, or by reason of new conditions being
imposed on a section
of the public which makes it desirable, that they should have time to adjust
themselves to
the new law. In this connection, Sir Cocil Carr remarks" "When Parliament
makes big
constitutional or administrative changes. it is convenient to take time over
the various stages
rather than to bring them into force immediately on the passing of the Act or
upon any hard
and fast date. Such a device is particularly useful and appropriate to the
introduction of----

(a) constitutional changes, for example, those made by the Acts which
respectively
created the Dominion of Canada in 1867, the Commonwealth of Australia in
1900 the Union of South Africa in 1909 and those made by the Government of
India
Act 1919 and the Government of Ireland Act of 1920; and

. Para 4.2, .SupI'u.

. Section 5(1), Canadian Interpretation Act.

. See also para 4.15, infra.

. Para 4.? .m/mi

Carr, Concerning Lnglish Administrative Lav (1941). pages 42, 43.

. The Code of Criminal Procedure. I974 (2 of 1974).

. Carr, Delegated Legislation.

. Carr, Delegated Legislation.

ooxioxf/-4:-mm...'

Provision
in Canada.

Present rules
in England.

Several
alternatives

as to

com me ncement.

Provision in
State General
Clauses Acts.

Practice in
Rome and
France.

English
theory.

Question
whether date
of publication
should be
substituted----
considered.

Change in sec-
tion 5(1) not
recommended as
to date of com-
mencement.

32

(b) administrative changes, such as, those occasioned in England by the local
Govern-
ment Acts of 1888 and 1894, the Education Acts of 1902, 1903 and 1918, the
Patents and Designs Act of 1919, the establishment of a Public "Trustee (see
6 Ed.
VII, Ch. 55) or the inter~departmental transfer of powers under the 1919 Acts
which created the Ministry of Health, the Scottish Board of Health and the
Ministry
of Transport ."

(c) Then, in the third place, the "appointed day" device can be quite
frequently ela-
borated by providing that different days may be appointed (a) for difierent
purposes
and for different provisions of the Act, or (b) for different areas, or (c)
for
different persons or classes of persons. For example, part of the Government
of
India Act, 1919 came into force on January 1st, 1920; other parts came into
force on successive dates during April, July and December of that year, while
the
remainder was finally brought into force by the beginning of 1921, on one date
for Madras and the Central Provinces, on another date for Bihar and Orissa,
on
a third date for Bombay and the rest of India. Provision for a similar
gradual
enforcement of the Government of India Act, 1935 was made in that Act.' In
this fashion, in the majority of the post--indepcndence Central Acts, the
"appointed
day" device has been adopted. A mere look at the Statute Book will show this.

4.4. We may note that some of the State General Clauses Acts provide that an
Act
shall come into force on the day on which the assent of the Governor thereto
is published

in the Official Gazette.

4.5. In ancient Rome, a Senalus Ccmsullum had no force till deposited in the
Temple
of Saturn."

4.6. In France, the President of the Republic promulgates laws, within the
fortnight following
their final adoption, and transmission to the Government." The act of
promulgation is definitely
part of the legislative process. A statute is made known to the public by
publication in
the "Bulletin Des Lois" or "Journal Official". The Code Napoleon,' declared
that laws were
binding from the moment their promulgation could be known, and laid down
various dates
when promulgation was to be deemed to have taken place.

4.7. The English theory, however, is different. "Every man in England". says
Blackstone,
"is, in judgment of law, party to the making of an Act of Parliament, being
present there at
by his representatives."

4.8. Keeping in mind the position as discussed above, we have examined the
question
whether the provisions" in section 5(1) should be modified so as to provide
that Central
Acts shall come into force on the date of publication7 in the Official
Gazette. In fact, that
was the provision proposed in the draft Report which had been circulated for
comments

by the previous Commission.

4.9. Having regard to various important considerations. and after careful

examination of all
aspects of the matter, we have come to the conclusion that the present
position as laid down in
section 5(1) should not be disturbed. In fact, because of the present
practice, no hardship
is caused. There is no statutory obligation to publish Central Acts in the
Official Gazette,
except that gazette copies of Acts are prima facie evidence of the
correctness of the texts
thereof." But. in practice. Central Acts are always published in the Oflicial
Gazette without

. Section 320. Government of India, Act. 1935.

. Levy 394, Sec. Suet Aug. 94.

. Article 10, French Constitution, 1958.

Article 1, Code Napoleon.

Bl. Comm. (F) 183.

. Para 4. 1A. .\u/mi.

. cf. Para 4.4, Supra

. Sections 31 and 84 of the Indian l'.-'\'idenee Act, 187.

3o\lO\'.)I-.l§(,.;|\)._.

33

delay, and generally on the same day on which the assent of the President to
these Acts is
received. Publication in the gazette is the most autlicntic form of
publication. As Macaulay,'
the first Law Member to the Government of lndia. observed in one of his
Minutes--

"And what does promulgation mean '3 It means, if I understand its sense, the
publication of a law in an authentic form. The publication of a law in the
gazette
will henceforth be a publication in an authentic form and will therefore he a
promulga-
tion."

4.10. This finishes the point of substance concerning section 5(1). Certain
verbal changes
are, however, needed in section 5(1). For [he words "come into opt-ration",
the words "come
into force" should be used, in conformity with the phrascology generally
adopted in Central
Acts?'

4.11. Sometimes," a distinction is sought to be made hctwecn "coming into

force" and
"coining into effect", but such a distinction is not usually observed in
practice. As to the
expression "at once" which is occasionally used in commencement clauses (in
State Laws},
the under--mcntioned case may be seen.'

4.12. To make section 5(1) cornprch-ensi\.-C in relation to the date of

commencement of
Regulations and Ordinances, we recommend the insertion of a subsection to the
effect that

(i) Ordinances shall come into force on their promulgation; and (ii)
Regulations shall come

into force on their making.

4.12A. We now come to section 5(3) which deals with the time of
coinmenccrnent. This
sub--section has a history. It had been held in England" that an Act which
comes into operation
on a given day becomes law as soon as the day commences, and every event
which occurred
[during the day would he an event which took place after the passing of the
.-"-'«.ct. If the Act
received the Royal assent on the 10th August, the passing of the Act would.
in contemplation
of law, take place imincdiatcly on the beginning of the day. That is what the
court held, and.
to emphasise the point, it stated that the Act commenced as soon as the clock
had struck
twelve on the night of the 9th August." Titir. later proposition was adopted
in England in
the Interpretation Act, and is to he found in section 5(3) of our Act.

In a Madras easel, the question to he considered was whether an arrest made

at 4.30 or
5' AM. in the morning of the 23rd January, 1947 in' pursuance of Madras
Ordinance 1 of
1947, was legal, and it was held that although the Ordinance was published in
the Oflicial
Gazette late in the day on the 23rd January, it must be deemed to have had
effect from mid-
nign; of the night between 22nd and 23rd January. This, in substance. is an
explanation of
section 5(3).

4.1213. In one of the comments received on the draft Report circulated by the
previous
Commission, a p '.;at has been made" that the clause as to the time of
commencement of an
Act may ofiend article 20H} of the Constittition. so far as penal .'--'tct~;
are concerned. The

. lVlacaL1]a_'r. Minute No. 5 ofthc 14-th .lu:~.::_ 1335.

. Also see sections 6(a), I2, 22, 24. General Clauses Act.

. See Adarslr Bhnndar v. Sales Tax Ofiiccr, A.l.R. 195'.-' .-'tIJ_ 415, 483,
para G2, second sub-paragraph.
. In re Veerab.'rta'!rz.r_}'_1'a, A.1.R. 1950 Mad. 243, 246.

. Tomilson v. Bullock. (l 8l'3) 4 QB. 2330, 231.

. Tomflsaav. Bullock, t_l3l'S}4 Q.B. 230. 233.

. Clrenclz.-'ah V. Cnmrm'.rrr'nner o_fl"ni'i:_-e, ALE. I948 Mad. 258.

. Commend of Shri FLL. Narasimltarn, as Chief' Justice of the Orissa High

Court.

m--amu.n.nmm...-

Verbal changes
in section 5-
words "come
into operation"
to be modified.

"coming into
force", "coming
into eilect" and
"at once".

Regulations and
t')rclinani.:es----
Cornrncnccrnent
of.

SecLion-5f3)-
time-of commen-
cement.

Section 5 and
time of commen-
cement--arti-cle
20(1) considered
Time of com-
mencement of
provisions of an
Act.

Printed date of
assent Presump-
tion.

Provision as to
commencement
of Ordinances
and Regulations.

Mandatory pro-
vision to print
date of assent
not suggested.

Recornmendation
regs.
section 5.

34

point made is as follows: Suppose an act which is otherwise lawful is made an

offence by
a particular statute of the legislature, and that statute comes. into force
say, at 10 A.M. Under
the clause, it is deemed to have come into force from the midnight of the
previous day. Suppose
the act, which has now become an offence, was committed at, say, 6 AM. on
that day. 'Then,
by virtue of the proposed clause, that act will become an offence, though
article 20(1) of the
Constitution prohibits retrospective penal legislation. This is the point
made in the comment.
It is emphasised that in article 20(1), the words used are "at the time of
the commission of
the Act," and not "at the date of the commission". The suggestion is that in
the proposed
clause, it may he made clear that it does not apply to statutes or statutory
provisions relating
to the creation of offences for the first crime.

4.12BB. We have considered the suggestion carefully. While we appreciate that

article
20(1) of the Constitution has to be borne in mind, we do not think that it is
necessatjr, for
that reason, to e.rc!na'e. from the proposed clause, statutory provisions
creating an oflence for
the first time. The clause has the advantage of laying down a general rule as
to the time
of commencement, and it would be a convenient rule. in so far as a particular
statute creates
an offence, it will be read as subject to article 20(1) of the Constitution.
The contitutional
provision is paramount to the statutory provision in section 5(1). An express
exception is
not required. From the point of view of drafting, a specific exception will
make the provision
very cumbersome.

4.12C. Some difficulty may arise where an Act is to have extra-territorial

application, in
a place where the standard time is difierent from the time of the country
where the Act is
passed. The crucial test is the date prevailing in such place} Such
extraordinary and rare
situations also need not come in the way of the proposed provision as to the
time of commence-

II1€I'llC.

4.13. So much as regards the time of commencement of an Act. We are of the

view
that the time of commencement of a provision of an Act should also be defined.
Such a
provision will be useful for cases where the different provisions of an Act
come into force
on difietent dates? We are recommending an amendment of section 5 accordingly.

4.14. A presumption as to the printed date of assent {in respectyof Acts)

would also be
useful.

4.1441. A provision as to the commencement of Ordinances and Regulations is

also

proposed, as it would be useful.

4.15. A further provision requiring the Government to print the date of

assent to each
Act was suggested during our discussion. We are, however. of the view that
such a provision
may not be appropriate in the General Clauses Act. Provisions on the subject
contained in
the Canadian Act, section 5(1), and the Australian Act, section 6, were
considered by us.
The English statute of 1793, and its history" were also borne in mind. We,
however, feel
that the suggested provision may create complications, and are not inclined
to recommend its

insertion.

416. In the result, we recommend that section 5 should be amended to carry

out the
points discussed above.' The revised section should be as follows.

]_ Rt-._v.-. v. Lfgfln, (1957) All. ER. 688 (Court Martial Appeal Court).
2_ Cy', para. 4.36 .m,ru'rr.
3. Para 4.2, srrpm.

AL Para 4 . 4 to 4. I5, .\'rr,rJrr1'.

35

Re1--'i5€d secrion 5 '

"5. (1) Where any Ceiltral Act is not expressed to come into _force on :1
particular daj-,'_. géggiflgfhm
then it shall come into force-- enactmmm

(1') in the case of a Ce:-iirm' .-4vL.'i made before the commencement of the
Constitu-
tion, on the day on which it receives the assent of the Gm-'ernor--Genera1;
and

(ii) in the c'a.s'e of an Aer of P(.'r'iicm'I€r1f, on the day on which it

receives the assent of
the President.

(2) Where am Ordinance promuigaied or Regulation made by the President on or

after
the ...................... ..day of ............. ,2 is not expressed to
come into

.' force an a pariiciriar day, then it shall come into force on the day on
which the Ordinance is
promulgated or fire Regzriarian is made, as the case may be.

' (3) Unless the contrary intention is expressed, every Central Act,
Ordinance, or Regula- -
tion or provision thereof shall be construed as coming into force immediately
on expiration
of the day preceding the beginning of the day on which it comes into force.

(4) The date appearing on the Copy of :2 Central Act printed by or under the
authority
of the Central Government immediately after its title shaii be evidence that
such. date is the
date on which the Governor-Generaf or the President, as the case may he, gave
his assent."

. 1. The revised sub-section (1) wii[ apply to existing Acts also.

' 2. Date of ::Jim1en-ccmznt of amendment Act to be entered.

15 M of Law;"."-1----6

Introduction.

Section-SA (rte w')

Marginal notes.
Qualified view.

Opposite view.

CHAPTER 5
PART OF STATUTES
Marginal notes

5.1. The Act does not contain any detailed provisions relating to the use in
interpretation
of marginal notes, headings, punctuation and the like. In view of the
obscurity of the position
as regards some of these matters, We propose to devote this chapter to a
consideration of the
question whether specific provisions on the subject are needed.

5.2. From time to time, controversies arise as to how far a marginal note (or
side note]
can be used in interpreting a section.

In 1904, Lord Me Naghten, sitting in the Judicial Committee hearing an appeal

from
India, stated,' "It is well-settled that the marginal notes cannot be
referred to for the purpose
of construing the Act." He regarded the contrary opinion as "having
originated in mistake."
Nevertheless, the contrary opinion seems to have persisted amongst lavvvers,
and resort is often
sought to be made to the side note in construing the section.

From time to time, legal journals in India and elsewhere have also discussed
this question.'

5.3. There exists also a qualified view, namely. that where the text of the
statute is, in
any respect, ambiguous, help can be sought from the marginal note. According
to this view,
while marginal notes could not be used for interpreting or curtailing the
provisions of a section
where its meaning is plain, those notes could be used to clear an
arnbiguit',3 or to furnish
some clue as to the meaning and purpose of the section.'

5.4. For example, in a Gujarat Case," it was stated that the marginal note to
a section
supported the construction placed by the court. The court observed. "No
doubt, the marginal
note cannot be referred to for the purpose of construing a section, but it
certainly furnishes
some clue as to the meaning and purpose of the rection. The marginal note to
section 39
clearly indicates that the object and purpose of the section is to effect
termination of dispropor-
tionately excessive voting right in existing companies. There are no words in
the marginal note
limiting the object anti purpose of the section to termination oi'
disproportionately excessive
voting rights only in respect of preference shares. The marginal note also
thus indicates that
section 89(1) applies to all existing shares whether they be preference
shares or equity shares."

5.5. As against this, there are cases holding that it marginal note cannot be
referred to
co-nstruing a statute," or that they cannot control the meaning of a section?

for the purpose of

Kiifiwtir v. Ron Jagar Pa! Sfngh. (1904) "-1 IA. 132. 141 lP.C'-'J.
2. See for example, comments as to marginal notes in
(:1) (1934) 1-19 I.C.62
Lb) (1934) Born. LR. 100.
(c)(l934)6T srad.t.J.35
(dj (I934) 4 Ali. W'.R. 25.
_ _Mm:te1Eiecrric 0:'! Mill V. Corporation of Calcutta, A.I.R. 1960 Cal. 333,
339.
_ Sa.I*<.7fSI1r2h '-'. State QfA.|1£lll'lFtI Pradesh, A.I.R. 1953 AP. 3-14.
_ Juror: Sirlgh V. Balbhadra Smgh, A.l.R. 1963 Guj. 209, 219 (EN. Bhagwati
.l.].
Cor~imissioner offneome-tax v. Afimedbhai Umarirfiai 8:. Co., (1950) S.C.R.
33-5, 353; A.l.R. 1950 SC.

134, H-1.
_ Naijmjchva B}-rack v. Shyamsunder Holder, (1953) S.C.R. 533, S38; A.I.R.
1953 S.C. 143, I50.

9V.JI.|'.L.Lm)

36

37

56- In general, courts in England and Austrialia held that the marginal notes
cannot
be used as a means of finding the true meaning of a section when the meaning
of that section
is in doubt.' Indeed, in some cases, Parliamer-,ts have passed Acts which
seem designed to
make sure that the marginal notes will not be used to find the meaning of the
section. For
example, the Victorian Parliament has passed an Act," stating that :

"Neither the marginal notes nor the foot--notes to any such Act other than
any
annual appropriation .-"+.=;.'t Shall he a part thereof."
In India, the Speal.-te;' oi" ihc Lo}: Sabha has also ruled' that marginal
notes do not form
part of the Act.
5.653. In an earlier English case,5 Phillimore, L. I. had observed, "I am
aware of the
general rule of law as to marginal notes, at any rate in public general Acts
of Parliament, but
that rule is founded, as well be seen on reference to the cases, upon the
principle that these
notes are inserted not by Parliament not under the authority of Parliament
but by irresponsible
persons. Where, however . . . . . . . ..tl1e marginal notes are mentioned as
already existing and
established, it may well be that they form part of an Act of Parliament."

5.7. But, in a fairly recent English case," Harman L. J. said, "I have always
been
brought up to believe that to interpret an Act of Parliament by the side
notes to the sections
is quite inadmissible, although there are judicial pronouncements seeming to
show that judges
have not always refrained, as in my judgment they should, from giving some
weight to them."
In a latter case,' it was held that the marginal note is not to be regarded
as a legitimate aid to
construction.

Contrary decision} therefore, appear to be out of tune with well--settler.i

principle.

5.8. In fact, in a judgment of the House of Lords,"

admissibility of side notes as an aid to construction.

Lord Reid specifically rejected the

5.9. 011 principle, the rule that a marginal note is not relevant for the
interpretation of
a legal provision applies as much to the constitution as to an ordinary law.

5.9. But, so far as ordinary Acts of Parliament are concerned, it is

desirable to settle
the law--or, if one prefers that expression--to re--settle the law," The
reason given usually
for not treating marginal notes as part of the Act and as not admissible in
interpretation is
that the Legislature does not discuss them when discussing the Bill, and that
they are never
put to vote and can be amended under the authority of Government without
reference to
Parliament.

1. See, for example, .-'v'i'.t-on v. A!£:'JJ'f1P_}'-Gflllffal, (1930) 1 Ch.

566. 593-, (per Lard Hanworth M.R.);
{.S'urIdersan v. Forheringham, (1335) ll V.L.R. 190; Darke v. Thornton,
(1883) 1 Q.L.R. 159.

2. Arts Interpretation Act, 1958, section 11(2), (Victoria).

3. See also section 13(3) of the Austrian Act.

4. See the rulings given by the Speaker on the 7th February 1950 and 10th
February 1960 {Lok Sabha
Dehates--Part 11, dated 7th February I950, pages 409-419] (during discussion
on the Delhi Road Transport
Authority Bill and the Undssirable Immigrants (Expulsion from
Assarn}BiI[re5pcctively.

. Re. Working Urban C0tmcE!Acr, (1914) I Ch. 300, 322.

. Parson: v. Laboratories (B.H.N.) L-td., {l9IS3) 2 All ER. 658, GT4.

. Uddin v. A5-metered Portland Cement, U965} 1 Al]. ER. 347, 349.

_ Stephens v. Cuekfield Rural Disrrir-r Comte.-'l (1960) 2 Q.]3. 373,

. Chandler v. Dr'rec!or of Pt¢bl'it' Prorerm'.-'um.'. (1962; 3 W.i_.R. 694,

7U5[ I'LL.) See also para 5.10, infra.
. Para 5 .2, supra.

'D"°O¢-qa\Ln

Position in Eng-
land and in Aus-
tralia.

Recent English
C3388.

Need to reeettle
the law.

, ,n;,_n_ai

Recommendation
as-to-marginal
notes.

Marginal note
not part of enact-
ments.

Section 5B(new)
Headings.

38

We would, however, like to point out that apart from this. there is a more
substantial
reason. The reason is that tl1e marginal note is intended merely to give a
brief indication of
the matters dealt with in the provision against which it appears, and is not
intended to give
an exhaustive picture of the section. In fact, logically, it is difficult to
see how a marginal
not (even if it purports to give a complete picture of the section) can be
taken into account
in construing the section, because, then we would have not one but two
parallel provisions
on the same subject at the same place. However careful the draftsman may be
in framing
the marginal note, it is impossible for him to put everthing in it. By its
very nature, it is a
compressed gist of the section. It is not intended to have a legal effect. It
is an extra-legal aid
inserted for convenience.

5.10. Judicial evolution has itself failed to yield any reasonably certain
test. In addition
to the cases already cited} we may refer to a fairly recent decision of the
House of Lords?
where Lord Reid and Lord Upjohn have, as to the proper use of marginal notes,
expressed
views which, to some extent, run on divergent lines. It may incidentally be
noted that in
India, Central Act 1 of 1854 was the first Acta introduced and passed in
Council which

contained marginal notes.

5.11. We are, therefore, of the opinion that a specific and categorical

provision to the
efiect that marginal notes do not form part of the Act is required, for the
reasons stated above.
We recommend accordingly. We also recommend a provision to the efiect that
marginal notes
may be corrected or amended under the authority of Governrnent. The new
section to be

inserted will be as follows :

Section 5--A (New)

5-3.. The marginal note appended to any provi$ir)n of on): Central Act or
Regulation,
and the reference to the number and year of on): former law in the margin
against any such
provision,-

(a) shall form no part of the said Central Act or Regulation, as the case may
be;
(b) shall be deemed to have been inserted for the sake of convenience only;

and

(-3) may be corrected or amended wider the authority of Government.

Headings

5.11A. We think that opportunity should also be taken of making it clear that
the headings
of the Parts or Chapters into which any Central Act or Regulation is divided
shall be deemed
to be part of the Act or Regulation. Since' a controversy has arisen in
England on the point,

this clarification is desirable.

Lord Reid said," in the House of Lords :

"A cr0ss--heading out to indicate the scope of the sections which follow it,
but there is

always a possibility that the scope of one of these sections may have been
widened by amend-

ment. - But a side-note is a poor guide to the scope of sections, for it can
do no more than

indicate the main subject with which the section deals."

1. See para 5.2, supra.

2. D.P.P. v. Schnieder, (1969) 3 All Eng. Report 1649, 1651, 1657. '
3. Central Act 1 of 1854 related to acquisition of land.
4. Sec. D_.P.P. v. Schnieder, (1969) 3 All E.R. 1640, 1641. 165'? (H.L.}.
5. D.P.P. v. .S'ehm'ea'er, (1969) 3 mi ER. 1640, I647. 1643. 1644. 1650
{House of Lords)-

39

Lord Hodson said, "...although there are no cross--headings in the Act of

1928 whereas'
the corresponding section of the Act of 1948, section 322, appears under the
cross--hea_ding
"offences antecedent to or in the course of winding up" the construction of
the relevant section
ought not to be governed ultimately by a consideration of cross-headings even
though some
attention may be paid to them.

Viscount Dilhorne said :

"I do not consider that it is proper to infer from the title to a part of the
Act and from
this cross-heading that the scope of the subject is limited as the respondent
contends . . . . .. while

I would not suggest that, when one is considering an Act of Parliament, one is not entitled to
look at the title given to a part of the Act. and to cross-headings, the weight to be attached to
them is, in my opinion, every slight and less than that which should be given to a preamble. In
Chandler v. Director of Public Pro.secutimt,'-' Lord Reid said that side note to a section cannot
be used as an aid to construction. I agree. A marginal or side--note is inserted by the draftsman as
an indication, but not as a definition, of the contants of the section.
"Similarly, in my view, the title given to a part of an Act and the cross--heading to a modern Act,
which are inserted by the draitsinaii and not subject to amendment by the members of either
House, are no more than guides to the contents of the part or of the sections which follow. They
are not meant to control the operation of the enacting words and it would be wrong to permit
them to do so."

Lord Upjohn said :

"It must always be remembered that cross-headings, punctuations and marginal notes are not part
of the Bill passing through Parliament in this sense that they cannot be debated and amended -as
the Bill passes its various stages, in marked contract to the preamble and the long title. These
cross--headings and marginal notes are put there in the lirst place by the Parliamentary
draftsman, but as the Bill proceeds may be altered (probably in consultation with the draftsman)
by the ofiicials o-f Parliament to accord with amendments made to the body of the Bill as it
progresses.

" ................ ..what role do cross--headings play in the construction of the Act ? In my opinion, it
is wrong to confine their role to the resolution of ambiguities in the body of the Act when the
Court construing the Act is reading it, though to understand it, it must read the cross-headings as
well as the body of the Act and that will always be a useful pointer as to the intention of
Parliament in enacting the immediately following sections. Whether the cross- heading is no
more than a pointer or label or is helpful in assisting to construe or even in some cases to control
the meaning or ambit of these sections must necessarily depend on the circumstances of each
case, and I do not think it is possible to lay down any rules."

5.12. Similar controversy is likely to arise, in our courts and a specific provision is desirable. We,
tlierefore, recommend insertion of the following new section :--

Secfiorz SB (New) Recommendation as to headings.

The headings of the Parts or Chapters into whfcfz any Central Act or Regulation is divided
Hwdiuss 13311 shall be deemed to he pan' of the Act or Regulation, as the case may be.

5.13. Another allied question is regarding punctuation. View is that in modern times, punctuation
forms part of an enactment and regard should accordingly be had to it in construing the
enactment. It is not however' possible to be very 5 7 l. The Coliipaiiitts Act, N H I I 7 mm W H
W,' """" "'

2. Clirtitdfcr V. D. P. F. (I962) 3 All E.l{. 140.

of enactrnents.

Broadly speaking, the accepted Punctuation.

precise or dogmatic in this regard. The fact that punctuation has, for some time past, been .a part
of the statute as enacted by the Legislature, is important as indicative of the value of punctuation
marks as an aid in construction. Its use, however, seems to be limited to an obscure or doubtful
provision of law, and, of course, the assistance to be derived from punctua- tion marks in
interpretation will depend much on the accuracy and correctness with which they have been
used. Until 1849, in England, sta1ntes,--i.e., the Bills engrossed on parchment, were not
punctuated} but the position is different now.

5.14. It is often stated that good drafting should eliminate the need for punctuation. But perfect
draftsinanship is an ideal which is rarely realised. Though not often used, punctuation is a guide
in interpretation, but has to be resorted to cautiously. It is a minor element in the construction of
a statute?

Karl N. Lewellyn-3 has given illustrations with regard to canons of construction. One 0! them is-
-p-unctuation marks will not control the plain and evident meaning of language.-4 This is all that
can he said on the subject with confidence.

5.15. In one of the con1ments5 on the draft Report which was circulated by the previous
Commission, it was stated that it is desirable to insert a separate provision dealing with the
principles of construction of punctuation in statutes. The old rule that punctuations are made by
the printer and should not be taken notice of during construction," {it was stated) seems no
longer in force. Since punctuations in the statutes are put by the draftsrnen, and are passed by the
legislatures and in some recent decisions, the Supreme Court also has taken note of punctuations
while construing the statutory provisions, the suggestion is that "it is better to clarify the law on
the subject."

We have already stated the position ahovel and we do not think that any specific provision in this
regard would be appropriate.

1. (a) .Bt..N'0w v. Wadkr'rr(1858} 116 R.R- 1-

(l)) R. V. Olehem (I352) 21 L.7.lVl,C_ I34.

'2, (a) .--is.fzwi'.rzi Karim: v_ Ambindo Bose, (1953) S.C.R. 1, 41, AIR. I952 S.C. 369. 353-

fb) Shambhu Raddy V. Chzilurrmia, A.I.R.. 1966, Mys. 311.

3. Lewellyn, 'Remarks on the theory of Appellate Decision and the Rules or canons about how
statutes are [0 be construed" (1950) 3 Vanderbilt Law Rev, 395.

4_ Comment of Shri R.L. Narasinihan, as Chict'Justiee of the Orissa High Court.

5. Inland Revenue Commxkmiom-r v. Hlnchy, (I960) A.C. 748, 3'65.

6. Note in (1959) L.Q.R. referred to.

'_J'. Para 5.14, supra.

l:

r.

CHAPTER 6 REPEAL AND AMENDMENT Repeal 6.1. In the last chapter we have dealt with
rules relating to certain parts of statutes. We now come to more important questions concerning
repeal and amendment.

6.2. Section 6 of the Act deals with repeal. Its main object is to reverse the common law rule that
a repeal obliterates the statute for all purposes for the future. Though this section is one of the
most important sections in the code. and contains a provision of frequent application a study of
the decided cases up--to--date shows that the problems that have arisen as to repeal are (i) either
outside the section} or (ii? cc-rcern the application of the provisions of the sec- tion, 01' (iii)
concern the effect of a S€[J€l!2i.i2 repeal clause in a parrticular Central Act. These problems
cannot be :1veided or minimised by an amendment of section 6, because their solu- tion does not
lie in any general rule.

6.3. The question that arise (in relation to repeal) outside section 6 relate usually to the eflect of a
particular enactment as attracting the provisions of section 6.

6.4. The entire problem of determining the extent to which existing legistlation is repealed by
subsequent statutes ultimately resolves itself into one of legislative intent."

As Mr. Justice Story said,3 it is not snilicient "to establish that subsequent laws cover some or
even all of the case provided for (by the prior Act}, for, they may be merely afiirmative, or
cumulative or auxiliary." The intention of the legislature to repeal "must be clear and mani- fest".
Questions concerning this legislative intent to repeal and the extent of the repeal are obviously
incapable of being solved by a general rule. ' ' 6.5. It may be noted that section 6 would apply to
a case of repeal even if there is a simul- taneous new enactment, unless a contrary intention
appears from the new enactment.' The consequences laid down in section 6 of the General
Clauses Act will follow, unless as the sec- tion itelf says--a dillerent intention appears. ln the
case of a simple repeal, there is scarcely any room for the expression of a contrary intention. Of
course. when repeal is followed by fresh legislation on the same subiect, one would undoubtedly
have to look to the provisions of the new Act-abut only for the purpose of determining whether
they indicate a different intention. lt cannot, therefore, be said, as a broad proposition, that
section 6 of the General Clauses Act is ruled out whenever there is a repeal of an enactment
followed by a fresh legislation. Section 6 would be applicable in such cases also, unless the new
legislation manifests an intention incompatible with or contrary to the section. Such in--
compatibility would have to be ascertained from a consideration of all the relevant provisions of
the new law, and the mere absence of a saving clause is, by itself, not material.

6.6- There is one important matter concerning implied repeals, which needs to be mentioned. By
its terms. section 6 does not state that it applies also to implied repeals, and, for some time, the
Supreme Court also kept the question open." In 1964, the question came I. Para 6.3. infra.

2. Wood v. U.S., if) L. ed, 987, 253.

3 Red Rock v. Henary, 27 L. ed. 25]', 253.

4. Ma': Munshiia! Bemram V. .S'.P. Jain (1971) 2 S.C.J. 307.

5. Trusr Mm" Lnritiami Stalker Brrrrlri v. Amrirsar Improvement Trust, A.I.R. 1963 SC. 976.

Repeal Section 6-effect of repeal.

Problems ari-

sing in relation to repeal, out-

side seetion 6.

I_egislative-inte-

nt.

An-plicability of section 6 in ca-

se of re-enact-

rneut.

Section 6 and implied 1-epeals.

Section EA.

up before the Supreme Court in these circumstances} The Orissa Mining Areas Development
Fund Act, 1952 (an Act of the Orissa State Legislature] was. by reason of the passing of the
(Central) Mines & Minerals [Regulation and Development) Act, 1957, superseded. The latter
Act had no express repeal clause, but since the regulation of mines and the development of the
minerals to the extent provided in the Act wastaken under its control by the Union by a
declaration in 3 section 2 thereof, this consequence necessarily followed.

6.7. Posing the question whether the expression "repeal" in section 6 was of sufficient amplitude
to cover implied repeal. and noting the absence o[ direct authority on the point in England or in
the United States, the Supreme Court took the view that the principle underlying section 6 was
that every latter enactment which supersedes an earlier one or puts an end to the earlier state of
the law, is presumed to intend the continuance of rights accrued and liabilities incurred under the
superseded enactment, unless there are suflicient indications express or implied in the later
enactment, designed to completely obliterate the earlier state of the law.

6.8. The Court then examined the question whether this principle could or ought to be limited to
cases where a particular form of words is used to indicate that the earlierplaw has been repealed,
and made the following pertinent observations :-
"The entire theory underlying implied repeals is that there is no need for the later enactment to
state in express terms that an earlier enactment has been repealed by using any particular set of
words or form of drafting, but that if the legislative intent to supersede the earlier law is
manifested by the enactment of provisions as to effect such supersession, then there is in law a
repeal notwithstanding the absence of the word 'repeal' in the later statute. Now, if the legislative
intent to supersede the earlier law is the basis upon which the doctrine of implied repeal is
founded, could there be any incongruity in attributing to the later legislation the same intent
which section 6 presumes where the word 'repeal' is expressly used ? So far as statutory
construction is concerned. it is one of the cardinal principles of the law that there is no distinction
or difference between an express provision and a provi- sion which is neccssarily implied, for it
is only the form that differs in the two cases and there is no dillerence in intention or in
substance. A repeal may -be brought about by repugnant legislation, without even by reference to
the Act intended to be repealed, for once legislative competence to effect a repeal is posited it
matters little whether this is done expressly or inferentially or by the enactment of repugnant
legislation."

6.8. Before we conclude our discussion of this section, we may point out that the concluding
words of this section "as if the repealing Act or Regulation had not been passed" are its key
words. As the Supreme Court observed} "The last nine words. ....are the key words, and mean
that in respect of rights, obligations and liabilities acquired, accrued or incurred under the earlier
Act, the repealing Act need not be read and legal proceedings and remedies are to continue under
the repealed Act according to its tenor."

As the section is quite comprehensive in its scope and content, we do not think that any change is
called for in it.

A mendmenr 6.9. We now come to amendment of Acts. Section 6A is as follows :--

i"6A. Where any Central Act or Regulation made after the commencement of this Act repeals
any enactment by which the textof any Central Act or Regulation was ,__ 1 Sm" 0}, am!" '._
M_,4_ Taalach :5': Co., A.I.R. 1964 SC. 1284, I294, paragraph 2|. 2- The declaration was with
reference to the Constitution, Union List, entry 54.

3. .4.~. Channiah v. ,4. Barchachanian Sahib (decided in January 1963).

._ _ .-.4.-.a..___'_____'_ J' _h*_____..

'r--=-;-* _ 'p-up-~._.. 4-._...___ .....w.'..-........ .-

zlmendedby the express omission, insertion or substitution of any matter, then. un- less a
different intention appears. the repeal shall not afiect the continuance of any such amendment
made by the enactment so repealed and in operation at the time of such repeal."

6.10. Slight verbal changes in this section ( section 6A) are proposed, in order to describe
VL.r1,a]_Change5_ more Precisely the enactment to what the section applies.
6.11. (a) We also recommend an exception regarding temporary Acts. A temporary Exceptign.
amending Act, which amends a permanent Act. should die on its repeal: that is to -sav. the
"'*°°'"m°"d¢d

-' for temporary amendment should come to an end with the repeal of the amending Act. Acts (in
sec. tion 6A)

(b) Wliere a temporary Act amends a temporary Act, and the amending Act. is repealed, the
principle of section 6A may apply. But it is unnecessary to encumber the section with any
elaborate Provision on that point.

6.12. While on the subject of temporary amending laws, we may refer to the situation of
0r_dinanoe-ame- an Ordinance amending a temporary Act, which arose in a Supreme Court
case.' In that case, "dmg Am' the enactments involved were.-

(i) the Defence of India Act, 1939 (a temporary Act), {ii} the amendments thereto by Ordinance
No. 12 of 1946, and (iii) the Repealing and Amending Act No. 2 of 1948 (which repealed the
Ordinance and repealed the Defence of India Act also). On the repeal of the amending
Ordinance, the amendments made thereby (in the nature of savings for rights, liabilities etc.)
were held to -have died. The non--applicability or otherwise pf section 6A was not consi- dered,'
perhaps because the section does not find a mention in section 30 dealing with Ordi-

nances .

We have considered the question whether it is necessary to make a provision on the subject. If
the effect of the formal repeal of a law amending a temporary law is to destroy the amend- ments
made by the amending law, some practical ditficulties could arise, and one way to solve them
would be to provide If in the clause under discussion) that it applies also to an Ordinance
amending a temporary Act, when the Ordinance is repealed. We have, however, after careful
consideration, decided not to encumber the section with such complications.

6.13. Aniendntents made by Ordinance would not, therefore, fall within the purview of this
clause.

6.14. The topic of temporary amending Acts, in relation to their r.°xpt'r_t: (as distinguished
Tempgmry am: mg from their repeal], is one which will be referred to later? Afcts_Expin, 0 .

6.15. The word "text" in section (SA has been construed by the Supreme Court in Iethnnand's
Meaning of case-'1 as meaning "subject or theme". The argument there advanced was that this
word related ,E{':xt'3:'¢*i:1d to the phrascology and the terminology used In the Act, but not to
the content of that Act. This section 5A_ argument was negativcd. (The case related to the
amendment made in the Wireless Telegraph Act, 1933, by the amending Act of 1949. which was
repealed in 1952}.

5,153" In amther supreme Court case, Om Prakarh v. State of U.P.,"1 relating to the Ex _ E _ . . ,
. . pin.' 4::
Prevention of Corruption Act, it was held that ,sect.ton 4-09 of the [ndtan Penal Code was not
tempopuy repealed by section 5 of the Prevention etc. Act, even irnpliedly. The question was,
thus, one amendlns of repeal. But the following observations made by the Court are of interest
with reference to ' temporary amending Acts:

]_ 'rare aj' U.f--'.-I-Viyifngaritartdar 1-954 3-C 533. 5357: Vl:3-l"='-- H

2. Para 6.15.25; t'rt,I'rzt.

3. Jethrtttrtrid v. State of Delhi, A.I.R. 1960 39. 92: 1 S-C-R. 755. 761.

4. Om Pmkarlt v. sum.» of {,-'.P., A.l.R. 195.? so 453. 463. (1957) s.c.a. 423, 424 {Govinda
Merton 1.).

15 M of l_aw.l'?-4-7 Recommen-

rlauon.

Repeal of law making textual amendments in other laws.

Section 613 (new)--

Reference to Acts etc. with title amended.

Reference to Act etc. with short title amended.

Section 7--

Revival of repealed Act.

Section 8---

Introductory.

"Before we advert to the Indian cases, the first thing that has to be remembered in this
connection is that, the Prevention of Cot-ruptiot. Act being a temporary one, the Legislature
would not have intended in the normal course of. things that a temporary statute like the one in
question should supersede an enactment of antiquity, even if the matter covered the same field.
Under section (Stall of the General Clauses Act, it" by elilux of time, the period of a temporary
statute, which had repealed an earlier statute, expires, there will not be a revival of the earlier one
by the expiry of the temporary statute."

6.16. In the light of the above discussion, we recommend that section 6.4. should he revised as
follows.
Revised section 6A Where any Central Act or Regulation (other filter: u ternporary Ac! or
Regulation} amends the/text of any Central Act or Regulation by the express omission, insertion
or substitution of any matter, and the amending Central Act or Regulation is .t'ubseq1ten!ly
repealed, then, unless a different intention appears, the repeal shall not afiect the continuance of
any such amendment made by the Central Act or Rerrulation so repealed and in operation at the
time of such repeal.

-6.17. to 6.20. We propose a new section to provide that where the title of any Central Act or
Regulation is amended, then reference to that Central Act or Regulation by its old title. in any
other enactment Act or Statutory instrument, shall be construed as references to it with its new
title. The utility of such a provision is obvious.

The new section should be as follows :---

Section 6B(New).

"IISB. Where the short title of any enactment. being a Central Act or Regulation, is amended,
then, references to that Central Art or Regulation by its old title in any other enactment or any
statutory instrument shall, unless (I tiflferent intention appears, be construed as reference to it
with its new title."

Revival of repealed Acts.

6.21. Under section 7, in any Central Act or Regulation made after the commencement of this
Act, it shall be necessary, for the purpose of reviving, either wholly or partially, any enactment
wholly or partially repealed, expressly to state that purpose.

The section seems to need no change.

Reference to repealed Acts 6.21A. We now come to section 3, sub--seetion (1) which is as
follows :--- "Where this Act, or any Central Act or Regulation made after the commencement of
this Act, repeats and re--enacts, with or without modification, any provision of a former
enactment, then references in any other enactment or in any instrument to the provision so
repealed shall, unless a difierent intention appears, be construed as references to the provisions so
re--enacted.

rineiples, has given rise to a number of questions.

This section, though simple in its main 1: _ _ _ ut all of them illustrate its importance.

Some of them do not necessitate any change, b l.--l'erhap5 the court had section 6A in mind.

-..'-.'»1i' H?-fl'€l&v:r-aw-viIfl|'H»'«m"

4-5 6.2113. Section 8(1), it should be pointed out,' deals with the reference or citation of one The
meaning and effect of incorporation by reference enactment is another without iiicorporotion.
which point out this limitation of of one statute into another has been examined in several cases,
section 8.

6.22 Even so, the scope of section 8 is wide. For example when an Act passed bv the Union
Parliament repeats? a State Act, then also section 8 applies; there is nothing in section 8 to
indicate that "former enactment" means only a Central Act.

6.23. It may also he noted that section 3 does not require that the later Act repealing and re--
enacting an earlier Act should he a repealing and amending Act? It does not matter that the new
Act is not a repealing and amending Act, but an Act to define and amend the law relating to the
particular subject. All that the section required is that a Central Act should repeal and ro--enact a
former enactment, either with modification or without it.

6.24. The expression "instru1neut" in the section has also given rise to a few interesting CREE-S.

6.25. In at Bombay case," it was stated that the word "instrument", in its ordinary meaning means
a document of a formal legal kind, which creates some right or liability. It is usually used in the
sense of a document executed by or between the parties. An order of a Court cannot be said to be
an instrument.'' In an earlier Bombay case," the High Court was not satisfied that an order of
delegation can be deemed to be an "instrument" within the meaning of section 8; and it was
conceded that it cannot be regarded as an enactment.

6.26. But the Supreme Court has now held? that the word "instrument" (in section 8) includes the
Presidents order under article 359(1) of the Constitution. The Supreme Court, while so holding,
noted that the word "instrnrnent" is some-times taken as meaning a formal document creating a
right or liability fitter partes. The Supreme Court added:

" ............. ..Bnt in the contest of the General Clauses Act, it has to be understood as including
reierenec to a formal] legal writing like an order made under a statute or subordinate legislation
or any document of a formal character made under constitutional or statutory authority. We have
no doubt in our mind that the expression "instrument" in section 8 was meant to include
reference to the Order made by the President in exercise of his constitutional powers."

62?. In a Delhi case} an important point concerning section 3 arose. A notification issued by the
State Government of Maharashtra had recorded the consent of the Maharashtra State to the
investigation by the Delhi Special Police Establishment of offences specified in a notification of
the Government of India (issued under section 3 of the Delhi Special Police hstablishment Act).
The notification of the Govermnent of India was later repealed, and a new one' in supersession of
it issued. But the lvialiarashtra State did not issue a fresh order notifying its consent with
reference to the revised notification of the Central Government. Consent of the State Government
was, nevertheless, held to continue to be valid for purposes of the revised notification also.

Collector of Customs, Madms V. .'\1-2t'.".e!t'r2 Sanirzrzthu Cherry (1962) 3- S.C.R. 786; A.I.R.
1962 S.C. 316. State ofPIm_}'ob v. S..D.S'. Gupta, .-'1\.l.R. 1970 S.C. 1641-1642, para 4. . See
Naroynn v. .':Ttamito'r'onat}1, A.l.R. I97-'2 Orissa lb, 11?. Bomt':.:2_-,- C.'irom'ct'e v.
I/.B.Poia'nr, (1961) 63 Born. LR. 2312, 814 {Chainani C.J., Chandrachud 5.). . .)'o.-1'reIt' v.
Jr)i't'J'e!I, H369) I_..i~'.. 7' Eq. 461, 463. . Emperor v. Rt!)-'flI!g0IIdfl Kt't.-gattgotrda, _-'LI.R.
I944 Bom. 259, 263', 46 Born. LR. 495. .»'l«fa-Imiz C'.I'zo;t-'d.fm,-).- v. Ct'ir'e_f'Comiiiis.-
.'i'oner, L-'men Territory of Trr'pm'o. A.I.R. 1964, S.C. 173, N8, 1'79.

_*-|O'\l.n:h-uJ3x.}i_-

tiara ll.

Advance i'its.'tt'rm't'e Co. t3ru'c."ri.x.'rza:', .X.l.R- 1959 D311'li 330: 347- 9313- 33 ('35-)-

9° Distinction between incorporation and mere reference.

wide scope of section 3.

(State Act).

Section 8 not confined to repealing Acts.

Meaning of :'tnsIrument"

In section 8.

Supreme C_ourt's view.

Reference in one statutory instrument to another statutory instrument.

Need to make the language explicit.

Need to confine the amendment to statutory instruments.

Section 8 and Successive rcpcals.

l?.econ1menda-

tion to amend section 8.

6.28. The High Court observed :--

"Learned counsel for the petitioner further argued that the said Notification issued under section
3 has since then been repealed and superseded by another Notification though in the New
Notification also all the offences which are 'racing investigated in the present. case are included.
Learned counsel, however. argues that the repeal of the Notification under section 3 which was
referretl to in the consent letter prevents the Special Police from investigating this case. We see
no force" in this argument. 1"he pririciple of section 8 of the General Ci.:tm;e Act would apply
here? The letter of consent referred to the Notification under section 3 which was in force when
the consent letter was issued. The repeal of the said Notification and the issue of a new one in
supersession of it would he like the repeal and re--enactmcnt of a statute. Under section 8, the
reference to the repealed enactment thereafter is to be construed as a reference to the rc--cnacted
provisions. For the same reason. the reference in the consent letter would have to be construed as
a reference to the Notification which has repealed the Notiiication referred to in the consent
letter. It would be contrary to all principle to take the view that the State Government has to go
on issuing new letters of consent rncreI;r because the Central Government chose to issue new
Notification under section 3.

In fact, the State Government may refuse to issue a new letter of consent on the ground that it
wanted the consent to be restricted to the offences mentioned in the Notification referred to in the
consent' letter. The supcrseding Notification may contain additional offences to the investigation
of which the State Government may not wish the consent. In our opinion, therefore, the letter of
consent continues to be valid, and it is so valid in the present case."

::i.29. We agree with the conclusion reached by the High Court? But we think that it would be
better to make the language of the section explicit on this point.

6.30. At the same time. it is desirable to confine the proposed amendment to statutory
r'nsrrurm=:nt.i'." The General Clauses Act is not concerned with documents other than statutes
and statutory instruments.

Successive repeal:

6.31. We may', at this stage, deal with successive repeals. In the Allahabad case,' Chandra
Bhushan. v. G'a_vatri Devi, the question arose whether section 3 of the General Clauses Act
could be pressed into service in construing section 13, Court Fees Act. which refers to section
351 of the Civil Procedure Code, 1859. The Code of Civil Procedure, 1908 has repealed and re-
enacted (in Order 41, Rule 23), the provisions of section 5562. of the Code of 1882. The Code of
1908 did not itself repeal the Code of I859. it repealed the Code of 1832, which had repealed the
Code of 1377, which, in turn, had repealed the Code of 1859. The High Court held that section 8
of the General Clauses Act was of no assistance in such a situation.

It would be desirable to cover such a situation by making _an explicit provision on the subject.

Recommendation as to .s'.-zctioiz 8.

6.32. St 6.33. In the light of the above discussion,-" we recommend that section 8(1) should be
revised, and section Elf l-A} inserted, as follows:---

. Emphasis supplied.

. Para 6.23. ,mpru.

. See .supra para 6.24.

Citrate':-ti B'l'm.r.fmrr v. Gayrm-i Dru'.-', A.l.R. 19059 All. 142, 152. . Para 6.18 to 6.3-l._
srrpra.

"S(I) Where this Act, or any Ccniral Act or Rugulation made after the commencement of this
Act, repezals and re--cnacLs, with or withouL modification, any provision of a former
enactment, rfmi rc4;'ei'€irc-95 in {my usher 2nnr:I:m?m or in any statutory in.5trm-neazr Io the
pmwr'5:'m-2 so 1-specified, or to the pron-'man Oil' any former enactmem .1':/;J:.=a!c*cf and re-
-emTc.rc'r! by tire moi-'i5for2 .m r€;:ec.'!:m', .5ImH_. uHfea'5 n r!i'fl'erem' intention appears, he
consuucil as references to thc provision so ra~enacted."

"(I-A') Where cm).-' .!-'m2'mur_i' :'.Ir.s'rrimm2r re.sr:r'.r'm'.-; om? re-1'11c'c.-:'pc'JmIr35, with

or without Ir-Jrzdfficarion, any pm1"£.sfon of [J former 3.fa!u£or'_1-' inst:-'Im.'<'.!J.', flier?
reference'.s' in any er-Iau:'I.-rzem.' or in {my Other' 5IaIr.r2'or_'r r'm.frumer-1'! :0 (he pmvffion
so .-'escinded. or to Er'2c' _um1=:.?r'0H of any farrnw .5Ia!tu(Jr'_\' in5!rtrmer1.' i'e._-.c'i.Im'e'c."
am!' re-iiicorprwahfd hf.' the praw'5a'un so re.s'c:i:m'ec2', shriff, mr!r=.s.s' a dEflea'ern' it-i.fen::'-
A:-2 appears. he ::.'0n.s'tru£a' references to the pro1----'r'Sz'0n so 1'6-eH(rcred."

Section SA (new)--

Expiry of Temporary Acts.

Perpetual and temporary Acts.

English law.

as to repeal.

Effect of repeat and effect of expiry.

CHAPTER 7 "!'£;'MPORA RY ACTS JWTRODUCTOR Y

7.]. We now proceed to discuss a subject which not dealt with in the present Act, the expiry of
temporary Acts. We propose a new section on the subject} It would be desirable to explain the
background of the new section in some detail.

At present, in the absence of provisions as to the expiry of temporary Acts, considerable

dilllculty arises. No doubt, in each particular Act which is intended to be temporary, usually a
saving clause is inserted; but, there might be cases where the draftsntan omits to do so through
inadvcrtence." Since the situation is a recurring one, it would be convenient if the General
Clauses Act contains a suitable provision.

The matter requires a detailed discussion of several aspects.

7.2. "Every statute for which no time is limited is called a perpetual Act," as the {supreme Court.
observed;-"' A perpetual Act continues in force until it is repealed. It is, however, to be noted that
no statute can be literally perpetual, that is to say, incapable of being repealed.
Temporary Acts are those on the duration of which some limit is put by the Legislature. They
continue in force {unless sooner repealed} until the expiration of the time fixed for their
duration. The Corpus .fttri.r Secruzduriri defines a temporary statute as one which is limited
merely in its duration. or which is limited in its operation for a particular period of time after its
enactment.

Repeal and expiry compared 7.3. Under the law of England, as it stood prior to the Interpretation
Act of 1889, the effect of a repealing statute was to obliterate it as completely from the records
of Parliament "as if it had never been passed, except for the purpose of these actions which were
commenced, prosecuted and concluded while it was an existing law.' To obviate the results
which would follow a repeal without more, a practice came Into existence in England of
inserting a saving clause in the repealing statute with a "view to preserving rights and liabilities
already accrued or incurred under the repealed enactment. Later on, to dispense with the
necessity of having to insert a saving clause on each occasion, section 38(2) was inserted in the
Interpretation Act, 1889?" Section of our Act corresponds to section 38 of the English Act,
dealing with repeat.

7.4. if the cfiect of the repeal of :1 statute (without a savings clause) was to obliterate the
repealed statute as completely from the records of Parliament as if it had never been passed,' the
effect of expiry of a temporary statute also could not, in principle, be in any way different. The
decided at1thorities*- show that the general rule in regard to the expiration of a temporary .
Section 8A[new].

. Para 7.11, !:;!_J'i"c1.

Hansrr.-_,i Moolji 1:. Store of Bombay, AIR 1957 SC 497, 500, Para. 14. Corpus Jnris
Secundum, Vol. 83, p. 930.

. Sec .-*t.l.R. IFJ-55 S.C. 84, 87.

A-..l.R. I955 84, .'l'.'.

Para T-'.3, .supm_ . la') .-'t.l.R. 1947 I-'.('.'. 3-8, 41.

th) A.1.R. 1939 S.C. 609, tilt').

GO.-ul-_3'\'~.1'\J'a.'..,4[.)._.

-A-1-"I-ln'.*-.rnn:'-.|:<»i-t.'n=s."::'-:2.

statute is that (unless the statute contains some special provision to the contrary), after a
temporary Act has expired. no proceedings can be taken upon it and it ceases to have any further
effect. Therefore. offences committed against te:11p(irat'_y Acts nmst be prosecuted and
punished before the Act expires, and as soon as the Act expires, any proceedings which are being
taken against a person will form _focm terminate.
In one judgment' of the Supreme Court, the repeal of a perpetual statute is almost equated with
the expiry of El temporary statute. It is observed. "nth-an a statute is repealed or comes to an end
by efllux of time, no prosecution for acts done during the continuance of the repealed or cxpiried
Act can be commenced alter the date of its repeal or expiry, because that would amount to the
enforcement of a repealed or dead Actf'.

7.4A. It may, in this connection, he stated that Lord Thring'~' called attention to the advisability
of including, in any temporary Act which imposes penalties, a provision that offences and
obligations incurred before the expiration of the Act might be punished or enforced after- words.
Perhaps, in pursuance of this advice. British and Indian statutes have used, in relation to the
expiration of a temporary Act. the expression 'except as respects things done or omitted to be
done', so that offences and obligations incurred under a temporary Act might be punished or
enforced even after its expiry. Even the Constitution of India, in articles 249(3), 250(2), 357(2)
and 358, has used this expression. The Government of India Act, 1935, used this expression in
section 102(4). It is on the basis of this expre:~1si.on that the House of Lords held in Wicks v.
Director of Public Prorectm'on.r,3 that the expiration of the Emergency Powers (Defence) Act,
1939 did not affect the lability to punishment under the statute or the prosecution of legal
proceedings for the purpose of inflicting that punishment. There are two Supreme Court cases
explaining the meaning of the expression 'thing done'.*-"

The above discussion is intended to show the need for a savings provision as to the effect of
expiry of a temporary Act.

Present position».-Need for unread':-nent 7.6. In the United Kingdom, there is no statutory
provision concerning the effect of expiry. At oommon law, the effect of expiry of a temporary
statute is. in each case, a matter of oonstruction."--"' The savings provision applicable by section
33(2) of the Interpretation Act, 1389 (U.K..) in case of repeal?' does not apply on the expiry of
an Act, of its own force.

Current English legislative practice is to apply the repeal clause. The following is one example :'
"{2} Upon the expiry of this Act, section 38(2) of the Interpretation Act shall apply as if this Act
had been repealed by another Act."

The correct position in relation to temporary Acts was stated by Spens C]. in J. K. Gas Plant v.
King Emperor,"' in which he cited with approval the following passage from Craies on Statute
Law."

. A.I.R. 1954 S.C. 683, 685.

. Tliring, Practical Legislation, page 100.

. Wicks v. Director ofPut'1Ir'c Prosecutions, (1947) A.C. 362 (I-I.L.}. . Unit-arm! Imports
Agency v. Chief Controller, A.I.R. I961 S.C. 41. . French India Irnporrirtg Corporation v. Chief
Controller', A.l.R. 1961 SC. 1752. . See.---
{a) Stevensoit v. Oliver, (1841) S M & W 234, 240, 241; (in) Spent-or v. Hooton (1920) 37
T.L.R. 280, 282;

{c) Wick: v. Director of'Prrb!r'c Prosectitioirs (1947) A.C. 362.

7. As to the general rule, sec para T-'.4, supra.

8. Para 7.3, .-ru,oJ'o.

9. Section 9, Control of Liquid Fuel Act, 196? (E.ng.}_ ID. J'.K. Gas Plant V. King Emperor,
(1947) 52 C.\'V.N. (F.[{.) 25.

11. Craics, Statute Law {Fourth Edn. p. 347'; Sixth Edn. p. 403).

¢,\|-n_;-_~.t.i.tr~.'D»---

Advice of Lord Thring.

No statutory orovision in UK. as to expiry.

Repeal of perpetual Act and expiry of temporary Act-Similarity between.

Provision in Bill of 1897'.

Position as to expiry of temporary Acts in India.

" ............. ..unless it contains some special provision to the contrary, after a temporary Act iltis
expired. no proceedings can be taken upon it and it ceases to have any effect. Therefore. offences
eonintittctl against tcntporary Acts must be prosecuted and punished before the Act expires. and
as soon as the Act expires any proceeding which are being taken against a person will ipso facto
terminate."

7.6. Thus, a perpetual Act and a tcmporar_v Act stand on the same looting, first, when they are
in force, and secondly, when a perinament Act is repealed or a temporary Act expires by efflux
of time, as the case I'l"l1l'_\-' be. Then, the qticstioit arises whether we should have a general
saving clause to deal with the expiry of a temporary Act more or less hire the one which has
already been provided for in section 6 in relation to repeal. As in the case of repeal without a
saving clause} so in the ease of expiry" of a temporary Act without a saving clause, it is not
difiicult to conceive how, such an expiry might result in defeating the ohiect for which the tem-
porary Act was enacted. Regard being had to the fact that the legislative power in the exercise of
which a temporary Act is enacted is the same as in the case of a perpetual Act, there cannot by
any insuperable or inherent tlifficulty in a temporary Act creating rights surviving beyond the
actual expiry.
7.7. It may be mentioned here that a provision on this subject was made in the General Clauses
Bill. 1897'. as originally introduced," but it was dropped at the Select Committee stage.' in
deleting the provision, the Select Committee observed :----

"It may be that without any provision it would be held that the effect is the same when an
enactment. expires as and when it is repealed; but, on the other hand, it is conceivable that there
might be cases in which, for example, it would he better not to allow a person to be proceeded
against after the expiry of a temporary and possibly very stringent enactment, although he acted
in contravention of it during the period for which it was expressed to endure."

With respect, we do not think that the reasons given by the Select Committee of 1897, quoted
above for the deletion of the provision, are sound. ' The first assumption in the Cornmittcefs
observations, equating the repeal of an enactment with its expiry, has not been accepted either in
Indian" or in English" law. The second proposi- tion, referring to some 'very stringent'
enactments, seeks to make an exceptional case the basis for a general rule. We find it dillicult to
conceive of cases where the legislation would intend and provide that an offence committed
against the temporary law may cease to be punishable on its expiry. On principle, even if a law is
stringent, an offence committed during its operation should be punished even after its expiry.

7.8. The position in Indian law as to the effect of the expiry of temporary Acts, which we have
already discussed,' is thus understood :5 . Para 7.4, .mprr:.

. Para 1' .5, .2.-rrprn.

. See Clause 6(2), General Clauses Bill, 13 Notes at pages 38.40.

. Report of the Select Committee, Gazette of Indi 9?, Gazette of lndia, Part V, pages 25 .37,
dated 6th Feb.. 1397 and Ln-IF)---

a, Part V, pages 'T-'7'.'H:t_. dated 6th March, 1897.

_ See para 7 . Ft. infra.

. See para 7.9, infra.

. Para 7 .3 and 7.4. mpm.

Sce-

(a} Krishrrai: v'. State of (in) State v. Jagrzrrzanduar Dos, A.|.R.

_G0-.lchLh_;.

Ilrfartras, A..1.R. 1951 S.C. 301, 304 (I951) S.C.R. I321; (per Fatanjali Sastri J,}_ 1954 S.C.
633', {[955] SC A539.
(cl State of Pwyiab v. _-'l-tohnr ,S'r'i-rgir, (1955) S.C-.R. 85; (cl) Gapichand v. Delhi
.»1dm1'm'sIm!t'arr, A.l.R. I959 S.C. 609.

._....._ .._--._.~ _ _M__,

-....u.n.u_.... . .-i.___.._.--..u~..,_ ...'-2.»-t_;.......'........._.._,_ ____ H-._..... ....._ Unless the

temporary Act contains some special provision to the contrary, no proceeding can be taken upon
a temporary Act after its expiry, and it ceases to have any further efieet. Therefore, otfences
committed against temporary Acts must be prosecuted and punished before the Act expires, and
as soon as the Act expires, any proceedings which may have been taken against a person will
ipso facro terminate.

7.9. The position in England is the same.'-9 7.10. In drafting an Act which is to expire after a
certain period, care must, therefore. be gigitghlfii taken, as the law stands at present, to provide
that any right, obligation or penalty accrued or draffing_ incurred during the period of the
operation of the Act shall not be afiected, and that any investiga-

tion, legal proceeding or remedy in respect thereof may be instituted, continued or enforced, and
such penalty imposed, as if the Act had not expired.

7.11. The failure to insert a proper saving clause has sometimes resulted in a serious offence
Failure to_ going unpunished. An instance in point is the case reported in State of Urtar Pradesh
v. 'C'i'::':e_fif';';3 Jagamander Dn.t.3. It is true that there was considerable delay on the part of the
investigating of. agency in that case; but, if there had been a general saving provision in the
General Clauses Act.

the serious offence in that case would not have gone unpunished.

7.12. The usual practice of inserting a saving clause in temporary Acts,' and the serious Specific
BT0- oonsequenccs which result where such a saving provision is either not inserted or is
inadequate} mm" Hamid'. would, in our opinion, justify the inclusion in the General Clauses Act
of a general provision dealing with the eifect of expiry of temporary Acts. We are conscious that
we are recommending a radical change; but we are satisfied that the ends of just require it.

Outlines of amendments 1.13. Having discussed the need for a provision dealing with the expiry
of temporary Acts, Qutfingg of we now proceed to consider the lines on which it should run.
|r':l':fiII"1'g°'g!i°"

expiry of temporary Acts.

7.14. We have a precedent in section 6, which deals with repeat. In general, principles Prigginim
which apply in the case of repeal of a permanent Act should. on so far as the nature of a
temporary iggefiaglggll, Act permits apply to its expiry. avblicable.

There are two ways of utilising section 6 for the purpose:

(i) a section applying section 6 {which deals with repeal) to temporary Acts on the lines of
current English procedure," or '(ii) a self--contaiued section which will reproduce the contents of
section 6 in relation to temporary Acts.

Of course, whichever course is adopted, it will have to be borne in mind that some parts of
section 6 cannot be applied to temporary Acts. Thus, clause (a) of section 6, regarding non-
revival of a repealed Act, should not apply in the case of expiry of temporary Acts. If section
6(a) is applied, the result might be that where a temporary Act repeals any provision of a
permanent Act, the repealed provision will not revive on the expiry of the temporary Act,----a
situation which may be, and usually is, contrary to the intention of the legislature. But there is no
difiiculty in applying the other clauses of section 6 to the expiry of temporary Acts.

. Wicks v. Director ofPerblr'c Prosecutions, (1947) A.C. 362 {I-I.L.). . See also para 7.5, supra.

State of U.P. V. Jrrgrrlirmdrzr Dar, A.l.R.. 1954 S.C. 533; (1955) S.C.A. 539. Para 7 .4, .rupr:;;r.

. Para 7'. ll. supra.

. Para 7 . 5, .-,.'r,.'.rJ'."r.

l5 M of Law.".-'4--'i:

Form of amendrnent considered.

Self-contained section preferred.

Express uro-

visiou to the contrary pro-

vided for.

Expiry of Ordinances.

7.15. The question, then, is whether section 6 should be applied by reference--[altertiative

(i) a'oove1]--or whether the new section should he self--contained--[alternative (ii) above] 7.16.
We think" that it would be more convenient to have a self-contained section as to the cfiect of the
expiry of temporary Acts, instead of applying. by reference, the section relating to repeal,--
though the letter was the course proposed in the General Clauses Bill, 1897.34 Referential
legislation lead-"- to unforeseen tlillicultles, and we think that in the case of an important
provision like the one under consitlcration. such a position should be avoided. We may observe
that the provision which we recommend will be the converse of the constitutional provision'
barring a prosecution for an oflencc under a law not in force at the time when the offence was
committed notwithstanding the later enacnnent of such a law. Under the proposed section it will
be permissible to prosecute a person for an offence committed while the law was in force.
notwithstanding the later e.rpiry of that law.

7.17. We have made the proposed new section subject to an express provision to the contrary. No
doubt. as we have already stated," it is dilficult to conceive of cases where the legislature would
intend that an offence against a temporary law should, after its expiry, cease to be punishable.
Norntally, the cxpirg.-' of an Act should not prevent prosecutions thereunder. However, since the
scheme of the Act is to leave scopc for a different intention in every provision, it appeared to us
that an exception should, in the new section, be made at least for express provision to the
contrary.

7.13. While we have thought fit to apply, with modifications. the provisions of section 6 of the
General Clauses Act. I897, to the expiry of temporary Acts.' we have not extended this principle
to the expiry of Ordinances. Under article 123(2) of the Constitution an Ordinance ceases to
operate on the expiry of six weeks from the re-assembly of Parliament. To a layman, an
Ordinance shares the same character as a temporary Act. The words "cease to operate" in article
123(2) have not been judicially interpreted. But it seems that at the expiry of six weeks, an
Ordinance is completely obliterated from the Statute Book, except for the saving expressly made
by the Constitution. It may be pointed out that article 123(2) does not use the words "except as
regards things done" etc. The Supreme Court in State of Orissa v. Bhupendra Kumnrfl made the
following pertinent observations .

"It is true that the provisions of section 6 of the General Clauses Act in relation to the etlcct of
repeal do not apply to a temporary Act. As observed by Patanjali Sastri, .l. as he then was, in S.
Krishna v. State of Madras," the general rule in regard to a temporary statute is that in the
absence of special provision to the contrary, proceed- ings which arc being taken against a
person-under it will ipso facto terminate as soon as the statute expires. That is why the
Legislatures can, and often does, avoid such an anomalous consequence by enacting in the
temporary statute a saving provision the effect of which is in some respects similar to that or
section 6 of the General Clauses Act. Incidentally, we ought to add that. it may not be open to the
Ordinance making authority to adopt such a course because of the obvious limitation imposed on
the said authority by Article 213(2) ta) ."

ln this position, we think that it will not be safe to apply the provisions of section 6 of the
General Clauses Act to the expiry of Ordinance, and it is doubtful if the proposed section (as the
effect of expiry) can be legally made applicable, in view of the provisions of the Constitutlmt.

l. Para 7.12, supra.

3. See also para 7.20, irlflw.

3. Section 6(2) of the General Clauses Bill, Gazette of India, 139'.' (6th Feb. i897], Part V, pages
25-37.

-'1. See. also para 7.7', supra.

5. Article 20 of the Constitution.

6. Para 7.7, supra.

7. Para T-'. 13 to 7.17, .rt:pra.

8. State of Or.-'.sra v. B.l:upen.:2'rn Kronor, A.l.R. 1962 SC. 952.

9. 5'. fl'r'.I.'}t.Irttr1 v. State .9_f.-'lxfrtdrm {I951} S-.C.R. 52I ; A.l.R. l95l S.C. I'-Cl].

.- '»';,i.-'- .7 .

Qualitatively, an Ordinance ceasing to operate under the Constitution differs from a temporary
Act which expires by afllux of time. Parliament never applied its mind to the Ortlmance which
ceased to operate under the Constitution.

if emnzriicixrfntfcmn 7.19. In the light of the above discussion, the new section what we
recommend will deal with the eflect of expiry of temporary Acts only.

Some of the noteworthy points in connection with the pI'0p0E~'Cd section may be repeated, tor
convenience: ' '

(i) The proposed section will not apply to the expiry of Ordinances.'

(ii) Assistance. has been taken in drafting the scction from section 6. But clause'-(a) of section 6
(regarding non--revivaI) has not been adopted, since it should not apply' in cases of expiry?

(iii) Instead of merely providing that section 6 will apply in relation to expiry. the proposed
section re--states the provisions intended to be applicable on expiry.' It may again to pointed" out
that the mere application of section 6 of the General Clauses Act to a temporary Act (without
reproducing, "with adjustments, the detailed savings), would create difiiculties, and may not
produce the desired result. As was observed in a Calcutta case," where a temporary Act is
repealed and replaced by a new Act. section 5? of the Bengal General Clauses Act (which
corresponds to section 6 of the General Clauses Act, 189?) may not achieve the object of saving
the operation of the temporary Act, because the expression "as if the repealed Act had not been
passed" can be construed in a rat.her norrow manner. It would save the life of the Act only for
the period upto the date of expiry. in the sense that its subsequent expiry is not to be taken as
having wiped it off completely as if it had never been born. Whatever was done during its
duration will not be rc--openeti, and that would be the only effect of the expression; once the
date of expiry is gone, the temporary Act would have expired, and the words "as if the repealed
Act etc." would not authorise any acfion after its ezttpiigr, because of the ordinary principles
applicable as to the effect of expiry of temporary Acts.

7.20. Accordingly, we recommend the insertion of the following new section:----

Section 6-A (New) 8--A. Where a temporary Central Act or a temporary Regulation made on or
after the. . ................... ..day of.............._...............expires,7 then, in the absence of an express
provision to the contrary, the expiry shall not eFfect----

(a) the previous operation of,-or anything duly done or suffered under, the temporary Act or
Regulation;

(b) any right, privilege, obligation or liability acquired. accrued or incurred under the temporary
Act or Regulation;

(c) any penalty, forfeiture or punishment incurred under the temporary Act or Regulation;

. See para 7.18, Supra.

. See discussion in para 7.14, .s'upm.

. Hence section 30 will not mention the new section.

See discussion in para 7.16. .s'u'pra_ . See also para 7. I6, .'mprr.r.

- TWWC Clwmlm MMk='I¢'?'it9r! and others v. Rama: Lat' Gtroral' and others, A.L.R. 1957'
Cat 257'. . Date of commencement of amending Act to be inserted.

Salient points of the recommendation.

Recommenda-

t1Dl1.

Effect of expiry of temporary Act.

Section 8-3 (New) Time of expiry etc.

Time of expiry of temporary Act: etc. Position as to_ expiry of Ordi-

nance.

54-

(d} any investigation, legal proceeding or remedy in respect of any such right, privilege,
obligation, liability, penalty, forfeiture or punishment as aforesaid; and any such_ investigation
legal proceeding or remedy may be instituted, continued or enforced, and any such penalty,
forfeiture or punishment may be imposed, as it the temporary Act or Regulation had not expired.

Time of Expiry 7.21. As regards temporary Acts, there is another point to be considered. Just as
the exact time of the commencement of an enactment is dealt with in section 5, it is desirable that
the exact time of the expiry of a temporary Act should also be laid down. A new section on the
subject is, therefore, recommended.

7.2.2. The new section will be confined to new Acts, as the formula embodied in it may not fit in
with some of the temporary Acts already passed.' The section should be as follows:---

Scction 8-5 (New) 3-0. Where a Central Act or Regulation made on or after the . . . . . . . . . . . .
..day of . .......... ..................... ..is expressed" to expire, lapse or otherwise cease to have effect on
a particular day, then it shall, unless the contrary intention is expressed, be construed as ceasing
to have effect immediately on the expiration of the day immediately preceding that day.

7.23. Section 4(2) of the Canadian Uniform interpretation" Act provides that "where an
enactment is expressed to expire, lapse or otherwise cease to have effect on a particular day, it
shall cease to have efiect immediately on the commencement of the following day." The section
which we proposed will express the same idea but will adopt the language used in section 9(3).

7.24. The new section will not be applicable to Ordinance promulgated by the President under
article 123- of the Constitution. Such Ordinance either (i) lapse on the expiry of six weeks from
re--assernbly of Parliament, or (ii) come to an end by virtue of disapproval by Parliament, or (iii)
terminate on withdrawal.

7.25. First, when the Ordinance ceases to operate on the expiry of six weeks, article 123(2) (:1)
of the Constitution comes into play, under which the Ordinance "shall cease to operate" at the
expiration of six weeks from the re-assembly of the Parliament.

[The Rangoon High Court has held} after discussion of the case--law_. that as the law does not
take into account fractions of a day, an Ordinance promulgated under section 4-l(2}(a] of the
Government of Burma Act, 1935 (25 Geo. 5, ch. 22) (which provided that an Ordinance shall
cease to operate at the expiration of six weeks from the reassembly of the Legislature) expired on
the rnid--night of 28-29th March, 1940, (which is six weeks from mid-night of 15-16th February,
1940, the Legislature having re--assernblcd on 15th February, 194-0). The Court negatived the
contention that, as the House had re--assemb1ed at 11.00 AM. on the 15th February, 1940,
therefore, the Ordinance expired at 11.00 A.M. on the 28th March].

7.26. Secondly, if the Ordinance comes to an end because of disapproval by both Houses, then
under article l23(2)(a), last portion, is ceased to operate "upon the passing of the second of those
resolutions".

7.27. Thirdly, regarding withdrawal of an Ordinance under article 123(2) (in), the with- drawal
can be made "at any time" by the President.

. E.-C. See Delhi Control of_ Building Operations Act',-1mE)tii.

. Date of commencement of amending Act to be inserted.

_ D1-tagger, Composition of Legislation (1956), page 256.

. U. Lun v. U Chi: hinting A.l.R. 1941 Rangoon S, 14, expressly approved on this point in A.I.R.
1941, Rangoon, 49, 50-

-Rial}-J--

F ...u...-..

jv CHAPTER 3 OTHER GENERAL RULES OF CONSTRUCTION Expressions cnimected

with time 8.1. We have so far discussed some important general rules of construction. In this
Introductory- Chapter, we shall deal with o-ther general rules of construction. We first take up
expressions connected with time.

8.2. Section 9, deals with the commencement and termination of time, is really Sect_iei:i9--
Cflnfillfl-£1_ to only W-'t.1 L'X15rES5i0_I15. tIan1ely_.."from"' and "to". Stated in a simplified
form, the §£_'§°.'.'f1f,'gn?l¥1;I;f" proposition enacted in the section is that if the legislature uses
the expression "from" a series"to".

of days (or any other period of time), the first day in that series (or period) is to he excluded; and
similarly, if it uses the expressions "'to" a series of days or any other period of time, the last day
in that series is excluded.

8.2.A. It should be noted that the preposition ''from'' used in connection with an event The
gxpfeggiofi may have various meanings. These are three possible points of time on and from
which the ;g§'i:;"i;'$'5°"' change in law (indicated by the substantive words which are preceded
by this preposition) anzflyscd, could take effect' i.n such cases. The first is that moment of time
when the event takes place.

The second is the commencement of the day on which the event takes place. The third is the end
of that day, (or the beginning of the next day which describes precisely the same point of time).

Barwick C. J. has dealt with the matter elaborately, in the Australian case of Associated Beauty
Aids Private Ltd v. Conitrtissioner of Taxation" and stated the position in these words :

"There is no general rule as to the consequence of the use of the preposition 'from', whether it be
in the computation of the period of time, or in any other con- nection. In general, in computing a
period of time from a date, the period will commence at the end of the day of that date, but there
is no universally operating rule to that effect, see, for example, the illustration given in the note
at p. 1068 of the report or R. v. Stet-'ens and Agnew" (1804), 102 E.R. I063, and Wilkiitson. v.
Gaston} When, as here, a change is to take place from a stated time, the general "rule" as to the
computation of a period of time is not of direct significance, though it is illustrative of the
separating effect of the preposition ''from''. In my opinion, it does not usually have an inclusive
but rather an exclusive or separatist quality. But un- questionably it may have either. Thus, the
preposition derives its relevant quality from the context in which it is found, which includes the
purpose which the document in which it is found is evidently designed to effect."
8.21}. Two aspects of the matter should be noted at this stage. For the specific
situationhioaspects dealt with in section 9, the rule enacted in that section prevails, and the first
day is excluded.°"h"m""""' In situations not dealt with in section 9, however, the question is to be
decided as one of construction as the positive provision in section 9 is not, in terms applicable.

1. cf. analysis in .4;-sat-i'ate;E Beauty Aids' Pvt. Ltd. v. Coimiiisstoizer of Taxation. (1965-66)
39 A.L.J.R. 20. 21 (Barwic!-t (,'.J.).

2. Assaciriiet! Beauty .4i'ii'.-.: Pvt. Ltd. v. Coiiiiiii'.>s'i'ottei' of Taxation, (1965-66) 39 A.L..l.R.

20, 21. 3-. R. v. .S'reveiis'attd.4g'iiew, UBO-4), 102 HR. 1063, 1068.

-1., I-Pifkiiriaii v. Giistwt, (1346) 9 QB. H7', H5 E..R. I327.

Para. 8.23 contd.

Laymarfs under-

standing different Other expressions relating to tirne.

A Madras case---In re Cour! fees'.----illustrates the position. in that Case, a question arose as to
the interpretation of a notification of the Provincial Government, published in the Gazette of May
5th. which contained rules imposing higher court fees on plaints. Did the new scales apply to
suits instituted on that day'? That was the precise question. The words of the notification were.
"that the ainenrlnients do come into force from the date of publication in the Gazette". Did those
words mean 'on and after that date",----thus including the St}: Ma,\=--or did tlicy mean "after
that date",--thus excluding May, the 5th. The majority tool: the former view. Schwabo C J. said,
"In every case, the word "from" preceding a date may have one of two meanings. namely. on and
after, that is, including the named date, or merely after, that is. excluding the namctl date; it is
necessary to look at the context and the cir- cumstances of each case to arrive at the true
construction. But I think further that, unless there are valid reasons to the contrary, certain rules
may be stated thus: {a} that, if the named date is- the "beginning of a ciefimfze limited 'peri'nd"'"
that is. when there is a rerrninus ad qtiem as well as a terminus ill' qua, then prima their the first
day is excluded; (b) that, if the named date is the beginning of an indefinite period, then, prime
facfe, the first day is included. '*1 am of opinion that in ordinary plan English, unless there is
anything indicating the contrary intention in the context, "from a named date" means "on and
after that day".

In the same case", Courts Trotter J. elaborated the position thus :--

"Where. a statute fixes only the terminus' a quo of :1 state of things which is envi- saged as to
last indefinitely, the common law rule obtains that you ought to include fractions of a day and
that statute or order or regulation takes effect from the first moment of the day on which it is
enacted or passed, that is to say, from the mid-night "of the day preceding the day on which it is
promulgated"; on the other hand. when: a statute delimits the period marked both by at terminus
a quo and a rernzinus ad quem. the former is to be excluded and the latter to be "included in the
reckoning.""
Hrishnaswami Aiyar 1., however, took the View that the notification took effect only on the next
day, i.e. on the 6th May.

We are referring to this case for its discussion of the princip1es,--though the case fell outside the
terms of section 9, because there was no "series of days or other period of time"

as is contemplated by section 9.

8.3. We have considered at some length section 9 in so Jar as it deals with the expres- sion
''from'', which, under the section, excludes the first day. This is also the rule in England. laid
down judicially, and we do not wish to disturb it, as it has been in operation for almost a century.
Nevertheless, we would like to point out that. this is not the layman": understanding of the word.
In ordinary usage--whether in conversation or in correspondence or even in formal documents---
one regards the day mentioned as included in the period which begins from a particular day, and
the object of using "from" is to link the period with that day. The dominant idea, in section 9, on
the other hand. is of detaching the period from that day.

8.4. Besides the expressions provided for in section 9, modern legislative phraseology has

--occasion to- use many other expressions dealing with the commencement or termination of T
periods of time; and it appears to be desirable,---in so far as it is practicabIe----to lay down
certain rules as to the eficct of those words and expressions. so as to have a uniformity of.
interpretation, which is one of the objects of the Act. Acting on this principle, we shall deal with
a few words and expressions, such as, "clear days", "within" etc.

1. In re Courrfees, A.I.R. 1924 Mad. 251'.

[J . Emphasis supplied.

. In re C'our'rfee.r, A.l.R. i934 Mad 7-57-

4. See also Haisbury, 3rd Ed- Vol. 32. page 133-

i-Lifiif'-'-'r.. . . .

5'?

8.5. (a') As regards the phrase "clear days". which is often employed in statutes, it is "'~'|=8l'
dd?!"- well settled that where this phrase is used. the time is to be reckoned exclusive of both the
first and the last day.' U') Wl1'3I'£*- liowcvcr. the expression used is something else than "clear
days" (or "at least" or "not less" so many days). the general rule obtaining at present seems to be
that the first day is included, and the last day excluded.'

816. As to the expression "within . . . . . . ..of"_. reference may be made to the Allahabad "Within
.... .. case of K. N. Pniidey v. 5'. 1.. Snrenrr." In that case, an application for substitution
under""°f" section 1113(3) (C) of the Representation of the People Act was required to be filed
"within 14 days" of the publication of the notice of withdrawal of candidature. On this statutory
lan- guage the first day was held to be excluded. It was noted that section 9 of the General
Clauses Act could not apply, as the word "of" was used But the court placed reliance on the
principle of section 1210'). Limitation Act.

8.7. (a) The expression "within . . . . . _ . _ . _ . . . . ..after" came up for consideration in a"Within
after" Bombay case.* The words used were "within 15 days 'after' the date of declaration of the
?lf:;'m",","hl" election result". The date of declaration was held to be excluded, because 15 days
contem- plated are after that day.

(b) The words 'within 15 days from the due date of payment". occurring in section 12-A(1) of the
Bihar and Orissa Motor Vehicles Act. I930, were held, in an Orissa case," to mean 15 clear days
excluding the day on which the tax become due] In another deci- sion", it was held that the
words "within a month" should ordinarily be construed as excluding the date on which the order
was passed. and would mean an interval of one clear month.

8.8. It is only when the word "from" is used (with reference _to the computation of a "From"
particular period} thatpthe date from which the computation is to begin is excluded from
$i't'lh.i:°"di"3 the computation.' But, if the expression in such context is either "beginning with"
or "ending with", then those dates are not required to be omitted from the computation} 5.9. It
may, incidentally, be noted that section 9 of the General Clauses Act has been Section9applicd
applied for computing the period of limitation also." 1fi':,'1'n.:::'i'-:')':1'f""3 8.10. While it is not
our intention to codify all the numerous points summarised ab0Ve,:'\.mendments we think it
proper to give statutory recognition t.o some of them. The amendments which "":°'""'°"d"d' we
recommend in section 9 will be apparent from the draft..'"--1" We may also mention that we
propose to extend the section to statutory instruments.

8.11. Recent legislative usage occasionally employs the verbal device "both days inclusive"
"Expression It would, we think, be convenient if, in order to recognise this device, the General
Clauses Act. suitably spells out the consequences of using it. Where a period from a specified
day ' to I specified day is referred to and the formula "both days inclusive" is used, the period
should include both the days. This is the proposition to be enacted. We recommend the insertion
in section 9 of a suitable provision in this behalf.

1. Strouc], Judicial Dictionary (1952), Vol. I. page 500, item No. 16. . Rarfcllfi? -u. Bat-
tholoiiirrrw t ls')?! 1 K-13. 16l-

. Kn"-'. Panda} I.'. 3.1.. 5tr.:te'rttr, ;"\.[.R. 1959 All. 54. {I953} ."i.i_J. 673, I530.

. ilfnrtjttli V. ('t'I»'i'l Judge, A.l.R. i970 Born. 1. 3, para l8.

.l'aalmttci'iar'an v. .5'.C. Pubs, A.l.R.. 1965 Orissa Tl, 7'2, Para 2 (Narasimhan CJ. and Batman
1.). filo ".'.t.rdr .'S'rtlrt.t v. Lo} .S'a-.'f;rrr(intIa Singiz, .-5i.l.R. I952'. Orissa E79.

. Para 8.1, supm.

. .-"v'r.u'}i(J \.-'. Sttal PI'i't.irrr'4'. .~'\.l.R.. l9'5-9 Pat. 310-

. Hhogilal Prmd__m xi. .-lJm'ttzr:ru'trI La.t'ma.Ii Srhglt, A.l.R. I963, Raj. 145.

. See draft Bill. ill the entl {if this Report. .1:1tl also para 3. I2, infra, . Also see part 8. l !. i'n,r'i'a.

r-assoc-o-.1-_3\;.r-.r-_i.-2:4 S8 fifrwrgggzgdllion 6.12. In the light of the above discussion,

section 9 should be revised as under :~---- section 9.

Revised section 9 Expression: of 9(1). In any Central Act or Regulation made on or after the
commencement of this Act, t":"°' or in anr statutory instrument made thereunder, it shall he
suflicient--~ fal to use the word ''from'' or the word 'after" for the purpose of excluding the first in
a series of days ; . . . . . . . . . . . .

(h) to use the word "to" for the purpose of including t.he last in a series of days . . . . . .

HA] In any Central Act or Regulation made on after the . . . . . . . . . . . . . . . . ..day of . . . . . . . . . .

. . . . . . . . . . ..19'l ,1 or in any statutory it-rstruntent made thereunder, it shall be sufi1cient-----

ta': to use the word "on" for the purpose of including the day on which 81 period is expressed to
begin ;. .

{b) to use the word "with" for the purpose of including the day on which a period is expressed to
end :. .

(c) in relation to the interval between two evenrs----

lil to use the words "clear days" or the words "at least" or "not less than" 'a specified number of
days, for the purpose of excluding the days on which the events happen ; and

(ii) merely to specify the number of data: for the purpose of excluding the day on whirl: the first
event happens and including the day on which the second event happens.

{IE}. Where in any Central Act or Regulation made on or after the . . . . . . day of . . . . . . . . . . . . .
. . . ..9 or in any statutory ft'h§'l'l'Il1II€I'l.I made under any such Central Act or Regulation, .11
period from a specified day to a specified day is referred to, followed by the words "both days
inclusive", the period shall include both the days.

(2) Sub-section (1) applies also to all Central Acts made after the third day of January, 1868, and
to all Regulations made on or after the forteenth day of January, 1887, and to statutory
instruments made under such Central A(.'I.£' or Regulations.

Section 10 3.13. This disposes of section 9. Section 10 provides that where any act or proceeding
. ' is directed or allowed to be done or taken in any court or ofiice on a certain day or within Ii
prescribed period. and the court or office is closed on that day or on the last day of the period, the
acl. or proceeding can be done or taken on the next day aftertliards on which the court or ofiice is
open.

8.14. It may be noted that the section has been applied to a provision where the period "not later
than". A similar provision in the U.P. General Clauses Act was pronouncing the award of an
industrial tribunal."

3PP1'°3l-"1° WM" was described as expremion "not . . . .

]atu--[]mn"u3gd_ applied to the time-limit fixed for

1. Date of commencement of the unending Act to be entered.

2. Date of commencement of the amending Act to be iI1S€l'l¢Cl-

3_ p*;5-pm.-anritru Press V. Workers of Vishwonlirru Press, A.I.R. 1953 S.C'. 4].

.-.---_._._s_.'q'.u. -...n.'.. '-

. __ _;....u.'.u.-aa:*_...,_,,,__ ,4... -------------»«ui-fln-nrI-

- u - )5: ' ' ' - ' f 8.15. lt may also he noted that the expression other. in this section does not mean
_1'}(l;Ei:;§§n0 the ofiice of a court} Section 10-

8.16. \-"t'.; prt'.-pose, in extc-ml .<et:t.ion 10 to statutory instruments. It has been pointed '° in a
Full liettcit tlteci:-.itttt of the Alialtubatl High ('otIrt'~' that section 4. limitation Act. £1ll(ljin_qt]-
uménm S. 10, General Clauses Act. give expression to the general. principles of law enunciated
by the ""-'°°'""'°""°d- masims "lat non cotrir ad r'mpo.t.rihilin"--the law does not compel a man
to do that. which he cannot possibly pct'i"orm.---and "ucrtr.s' cm'.r'oe rmririnem g!'£?i»'(ll)I'l"'--
fll7I act of the cottt't shall prejudice no man. ""I'hcsc sections do not in any way extend the
period of limitation. H01' do they furnish any data For computation of time: they merely embody
a rule of eit-?m€n.(tn'_1' in.9rt'cr= that if the time allowed by statute to do an act or to take. a
proceeding expires on a day when the court is closed, it may be done on the next sitting of the
court."

In a number of other crises." it has been pointed out that section 4, Limitation .r--'tt:t, and section
It}, General Clatiscs Act embody the general principles enshrined in the two maxirns "'i'ex non
crogir (rd intpossibilia and Acms en:-iae nmzuirmn grnt'nIbr'I." Fven if section 4. Limita- tion
Act is not applicable as contended by the appellant, the respondents can invoke section 10 oi'. the
General Clauses Act. If neither of the provisions can assist the respondents, the_t' can still int-
'olte the pattern! prEttt'ipics' embodied in the two provisions."

8.164%. In a Supreme Court case," section ill was applied to sttttttt-or)' 1'Lllt'_'S. Section 31(1)
of the Representation oi the People Act, 1951, enacts that the election petition may be presented
'wiriritr site}: time at may he pre.i'cribed."' Rule 119 of the rules under the Act provided a time
limit. but used the words "rim later their 14 n'rt_r.t'."' The Court observed----
"It is obvious that the rule-mal-ting authority could not have intended to go further than what the
section itself had enacted, and if the language of the rule is construed in conjunction with and
under the coverage of the section under which it is framed. the words "not later than fourteen
days", must he held to mean the saute thing as 'within rt period of fourteen days'. We entertain no
doubt that the Lcgislattirc used both the expressions as meaning the same thing, and there are,
accordingly, no grounds for holding that section 10 is not applicable to petitions falling within
rule 119."

Later, the Court described section 10 as "a benefieient enactment."

8.17. We also propose to substitute the word "specified" for the word "prescribed" in section 10,
since the word "'pt'escrihed"' will now have :1 special meaning."' 8.18. In the light of the above
discussion, we recommend that section 10 should be Recommendation revised as follows :-- 35
'° 5°°"°" "1 Revised section 10 10(1). Where, by any Central Act or Regulation made after the
commencement of this Act, or by r.-try starumr_v insrrttrrtent made under any such Central Act
or Regulation, any act or proceeding is directed or allowed to be done or taken in any Court. or
oflicc on a certain day or within a specified period, then, if the Court or oflice is closed on that
day or on the last day of the specified period. the act or proceeding shall be considered as done or
taken in due time if it is done or taken in the next day afterwards on which the Court or office is
open.

. .l..rrr'h.t'}1m:'e,t'n.I' Prrrscrd V. G."J'ir2'lrr1.I'r' Inf, .-5i.l.R. i939 PI-1!. 667 {F.B.l. . Rain
Prmdc V. .§'l1ee_.urtg:'iH Pnrrrfe, .-'\.l.R. i942 All 423, t[F.B.) (per Dar J.).

- 3fl'"3f'l-'I-ill?" 'r'- 7'f't??fl' U9") 7 Nag. LR. H6; 12 l.C. 810; and Dl'm'rrri.t'r'nt,r.fi \-'.
Ke.t'}ropra.t-ad, ;\_],R_ 1923 Nag-_ 245, I'€z"crt"et| to in Ruml}r'r it Pi'at/Jlznknl', .i\.l.R. l955
Nag. 300, 301.

-4. 1Ian'nct'rr .':.'a'.+r,;tf1 \-'. .Ft'arirnil5t'ii,tyh. A.l.R. 1951'' 3.1:. Ill, 2?} [Venlcatarama Aiyer
.I.J.

5. See section P---"prcserihed".

15 M ofLaw."7s1--9 :3}-._)_.

Section 10A (new) Standard Time.

Ijlefcrence to tune.

Section 1I--

Distance and Rate.

Section 12.

Section 13--
Gender and _ number.

Merit of the provision.

I 'Provided that nothing in this section shall apply to any act or proceeding to which the
Limitation Act, 1963, applies.

(2) This section applies also to all Central Acts and Regulations made on or after the fourteenth
day of January, 1887 and to statutory instruments made under such Central Acts ur Regulations.

8.19. Section 10A is a new section which we propose to add.' It is a provision as to standard
time, which would be a useful provision." The following section is recommended.

Section lllai (New) IDA. Where in any Central Act or Regulation made on or after the . . . . . . . . .
... day of . . . . . . . . . . . . . . ..197 ,3 any reference to it specified time of the day occurs, then such
time shall, unless it is otherwise specifically stated, mean the Indian Standard Time."

Distance and rates of duty 3.20. Section 11 is as follows :--

"l 1. In the measurement of any distance, for the purpose of any Central Act or Regu- lation
made after the commencement of this Act, that distance shall, unless a difierent intention
appears, be measured in a straight line on a horizontal place."

It needs no change.

8.21. Section 12 provides that duty shall be taken as pro rate in enactments. This section, which
is based on section 4 of the General Clauses Act of 1868, is ultimately derived from an Act of
1849,' which contained a similar provision. It needs no change.

Number and gender 8.23. Two rules of interest to gra.mmarians---both subject to the context-----
are incorporated in section 13. The first says that words imposting the masculine gender include
females. The second provides that words in the singular include the plural, and vice versa. The
object of both is to facilitate shortening of the language of enactments, by enabling the draftsman
to avoid the tortuous process of mentioning the female of the species whenever he frames a pro-

vision applicable to living beings, or of mentioning the plural whenever he uses a word in the .

singular and vice versa.

8.24. The merit of these two provisions is obvious. Of course, the resultant brevity is purchased
at a price, because, as is shown by the fairly large number of reported cases on the section, it is
often not easy to decide whether, in a particular statutory provision, the context should be taken
as indicating a contrary intention. Some of these cases have even gone to the Supreme Court."

__H
1. Compare section 37' of the Australian Act-

2. Compare also section 3 of the Factories Act. 1943.

3. Date of commencement of the amending Act to be entered.

4. Central Act 5 ofl849.

S. (a) The Regional Settlement Commissioner, (1963) 2 S.C.R. 534.

biz Co. Ltd, Calcutta v. Its workmen (1962) Suppl. 3 S.C.R. 589. 601. 610.

(b) The Management of Indian Ce.

(c) Mir. Dhandnia Kedia ti': Can, v. The Commissioner oflncome-tax, A.I.R. 1959 S.C. 219, 13.

(d) ,-'vewspapers Ltd. v. State Industrial Tribunal & Others, A.I.R. 1957 S.C. S32. S36.

Jaipur and others v. Sunder Des Bhasi.-r, A.I.R. I963 S.C. nu;

And, there have been recent decisions' of the High Courts also. But this cannot be avoided. For
this reason, no substantial change is suggested in the section.

8.25. In one of the cases before the Supreme Court,--Regional Settlement Commissioner
Secnouts. V. Sunderda.s2--1'e1at1ng to rules made under the Displaced Persons (Compensation
and Rel:Ia- 3"" ""l°3' hilitation) Act (49 of 1954), section 13 (of the General Clauses Act) was
held not to apply to the particular rules, in View of the context. But the general question whether
the General Clauses Act applied at all to subordinate legislation was not considered.

8.26. Certain verbal changes are, however, proposed in section 13, which should be Verbal
changes recornrnendedin revised as follows :----- . seCuon13_ Revised section 13 (1) in every
Central Act or Regulation, unless the context otherwise requires. words Genderand importing the
masculine gender shall include females. Number' (2) In every Central Act or Regulation, unless
the context otherwise requires, words in the singular shall include the plural, and words in the
plural shall include the singttiur.

1. Eg. (3.) A.l.R. 1964 Punj. 37, 89;

U3) .-"L.I.R. 1970 Punj. Sl, E4.

2. Regional Settlement Commit-sinner, Jaipur V. Sunderdas Bhasin, A.I.R. 1963 S.C. IE1-(1963)
2 S.C.R. 534.

incorporation.

Section 13A tNew]--Effect of incorporationm Recommendation.

Offences by companies.

CHAI'"1'I:lR 9 CORPORATIONS 9.1. In this Chapter, we deal with certain matters relating to
corporations.

-9.2. Wlicncvcr an enactment has to incorporate a body of persons, it has to expressly provide, in
a separate section, for many matters dealing with the effect of incorporation. Since enactments
incorporating bodies are now increasing in number. it considered that a provision in the General
Clauses Act on the subject would serve a useful purpose. A new provision as to the cltect of
incorporation is. therefore, recommended as follows :---

Secfr7rJn 1 3A (New) "l3A. Where by or mider rrnr Central Act or Regrtlnrioir made on or after
the . . . . .. . . . . . . . . . . . . . .a'n_i' of. . . . . . . . . . . . . . . .,1r:m_v nssociatirm or body of persons is
constituted a barf)-' co-rporrttc. then, IUl'l€.S'.S' a differerit intention appears, that body
(turp0rrrfe--«--

{_a) mail have perpetual succession, and a common seal with power to after or change the seal ,'
(la) mrry sue and he rrred by its corporate name .' rc] shall have prm-'er------

( i) to t:0rtfrrrr:.f by its corporate mime ;

(ii) to acquire, hold or dispo.re of properrv, n'tzer}n=i' .|".'r?('H'-:'tlJt(" or immovable."

9.3. There is another matter relatiiig to corporations which may be considered. In Acts of
Parliament containing penal provisions, there is often to be found a section relating to ofliences
by companies. The section is usually in the following terms (slight variations are sometimes
found).

"Offences by co.--np:mies.' (1) if the person committing an offence under this Act is a company,
the company as well as every person in charge of, and responsible to, the company for the
conduct of its business at the time of the commission of the ofience shall be deemed to be guilty
of the offence and shall be liable to he proceeded against and pllnislictl accordingly:

Provided that nothing contained in this sub--section shall render any such person liable to any
punishment it' he proves that the oflcnce was comrnittcd without his knowledge or that he
exercised all due diligence to prevent the commission of such offence.

(2) Where an offence under this Act has been committed by a company, any director, ntanager,
secretary or other officer of the company, not being a person in charge of and responsible to the
company for the conduct of its business at the time of the commission of the offence, shall, if it
is proved that the ofience has been committed with his consent or connivance or that the
coininission of the ofiencc is attributable to any neglect on his part, also be deemed to be guilty
of that offence and shall be liable to he proceeded against and punished accordingly.

1. Date of commencement ofamendinent Act to be inserted.

mnirnu-v-an-v-nu -'sih Mm-

Fltplrim-tra'oir.ml-"or the purpose of this scct.ion,---~ ta') "company"' ntczii-is any hotljtr
corporate and includes a firm or other association of persons, and

(b) "director", in relation to a firm means a partner in the firm."

9.4. We have considered the desirability of including such :1 section in the General
Recommendation. Clauses Act, and have come to the conclusion that it would be proper to do so.
We have made a similar recommendation in our Report' on 'Social and Economic Offiences'. We
recommend accordingly that the following section should be inserted in the Act :------

Secrloii l3AA {New} (1) lf the person committing an offence under any Central Act or
Regulation made on g[[¢,,,_~¢., by or alter the ................... ..da_~,' of . . . . . . . . . . . . . . . . . . . . . .
.." is a company. then, unless '=°mF3"i=5- a different intention appears, the company as well as
ever}-' person in charge of, and responsible to, the company for the conduct of its business at the
time of the commission of the olfencc shall be deemed to be guilty of the otfence and shall be
liable to be proceeded against and punished accordingly:

Provided that nothing contained in this sub-section shall render any such person liable to any
punishment if he proves that the olfence was committed without his know- ledge or that he
exercised all due diligence to prevent the commission of such offence.

[2] Where an offence under any such Act or Regulation has been committed by a company, then,
unless a different intention appears, any director, manager, secretary or other ofiicer of the
company, not being a person in charge of and responsible to the company for the conduct of its
business at the time of the commission of the ofience, shall if it is proved that the olfence has
been committed with his consent or connivance or that the commission of the otfencc is
attributable to any neglect on his part, also be deemed to be guilty of that ofience and shall be
liable to be proceeded against and punished accordingly.

ExpInnation.--For the purpose of this section,-----

(a) "company" means any body corporate and includes a firm or other association of persons, and

(b) "director", in relation to a firm, means a partner in the firm.

1. 47th Report.

2. Date of comzncitceineiit of amending Act to be inserted.

Introductory.

Statutes in derogation of sovereignty.

Effect of growth of democracy.

Distinction bet-

ween Governmen-

tal and other functions.

CHAPTER 10 PROVISIONS COI\'CERNL\lG THE GOVERNMENT L0,]. We now proceed to

consider certain topics relating to the position of the Government.

10.2. One of the most interesting problems which have arisen in Constitutional Law concerns the
effect of statutes in derogation of sovereignty. How far does a statute bind the Government? For
some time, a view prevailed that the sovereign remains unaffected by the general words or
language of a statute.' The rule had, perhaps, its origin in the English Common law immunity of
the Crown ; this immunity had first attached to the personal character of the King as the
sovereign, and later extended to other sources of the law~rnaking and law enforcing power? The
conflicting theories of sovereignty affecting this problem need not detain us. Wliat needs to be
not.ed is that the doctrine that the state is not bound by statute except in certain cases is, speaking
historically, associated with the institution of monarchy.

realisation of the need to give 10.3. With the growth of democratic institutions and the activities,
a movement adequate protection to the citizen even against governmental for giving more
adequate and better defined remedies against the State gained ground in various countries. The
Crown Proceedings Act.194'!, in England, and in the United States of America, illustrate the
growing trend to the Federal Tort Claims Act, illegal acts. Reference may also be made make the
Government liable for various kinds of to the Law Co1nn1ission's Report3 on State liability in
Tort. These developments are not to be viewed in isolation, but as a part of the process of the
gradual erosion of the prerogative of the e.\tccutit-'e. Because of the growing number of welfare
activities of the State, the matter has assumed great practical importance.

State in regard to statutes, is a fact of the above As is often pointed out, the problem e State, is
consistent with the need for The question of the position of the subject, and is one of steadily
increasing importance. is one of at determining how far the prerogative of th full liability of the
State, particularly because every day the State engages in activities com- parable with those of
the citizens. The common law presumption, that the State is not bound by a statute except by
express mention or by necessary implication, is no longer justifiable. It may be that this
presumption is supported by the old positivist theory which regarded law as a command issued
by superior to an inferior. If so, it is out of date now.

10.4. Sometimes, a distinction is sought to be made between functions which are "necessarily
and inalienably"* governmental functions (on the one hand) and other functions, and it is empha-
sised that in the case of the former, the special position of the State should continue. But our
experience of the working of the similar distinction which was observed (for some time) with
reference to governmental liability in tort, shows that such a distinction, even if theoratically
justified, would not be workable, because it lacks precision. In fact, even in other countries, such
distinctions have been criticised by the academic world?
_ see para. 10.7. i'tif|"t1-

. Borchard, "Government responsibility in Tort" U925} 35 Yale Law 1011111911 1. 17-

lst Report of the Law Commission (Slaw liability in *0")- . See First Report of the Law
Commission (State "F-l3'|mY in *0"): P339 37- (ar E.-,.3g1.m,_,1.., =-Lena: Status of
Incorporated Public Authorities", (1943) 33 Allfilmlifln 1-3" JOUTWI 7» 123 ("hi Frieimsnn.
"Shield ofthe Crown". (1950) 34 -"'1ll5t"3-H3" L9-"' J°1"'"a]-

UI-t---uo;.;._-

64 , 10.5. in the United States, one of the weli--l<nown supporters of the doctrine of "irresponsi-
biiity" of the State was Justice Holmes, who stated that there could he no legal "rigl1t" against
the State, which itself made the law on which the right depended.' In one of his iettcrs to Laslciz
Holmes stated that he could not understand how an instrumenlality established by-' the United
States to carry out 5:5 will, should undertake to enforce something that is ag:n'n3i fis' will. "it
seems to me like shaking on<:'s list at the sky, when the sky furnislies the energy that enables
one to raise the fiat."

10.6. But, if this argument is accepted, and carried to its logical conclusion, the compr-::hen--
sivc and positive rule of law cannot survive. "If you just make one exception to the principle of
legality, you cannot tell where it may lead you," The matter. therefore, requires a fresh look.

10.7. So much as regards the justification for considering the subject. We may now discuss the
present position. The rule in England is that in the absence of an express provision to the con-
trary or of necessary intcndment to the contrary, the Crown is not bound by a statute. This rule
prevailed in India also for a long time-

But the Supreme Court of India has now held'-5 that this rule of the common law of England
does not apply to India after it became a Republic. We think that this View of the Supreme Court
should be codified." We would. moreover, htate that where there is no express provision, in the
particular statute as to whether it binds the Government but reliance is placed on "necessary
implication", the Court has to go through the entire Act, in order to determine. whether the Act is
binding on the Government. Until the matter has h-een examined by a Court, no one can sag:
with certainty whether an Act (which does not make an express provision on the subject) binds
the Govcmme-nt. This position is obviously unsatisfactory. In the modern welfare State, the
activities of Government have increased CCIIlSidE:'I'Elblj'. A member of the public dealing with
the Government is, therefore, entitled to know, without going to a court of law, whether a
particular Act binds the Government or not. Hence the only exception should be for cases where
there is an express provision in a statute to the efiect that it does not bind the State.

10.8. We need not refer to all the cases of the High Courts. some are mentioned in the footnote."

'We, therefore, recommend that a section should be inserted in the General Clauses M to the
eficct that. in the absence of a contrary express provision, every Act of Parliament shaii be
binding on the Governruont. Accordingly, we recommend the insertion of a new section as fol-
lows :

Secrion 133 {New} View of Holmes that there can be no enforceable right against the State.

Rule of law auflicient answer to the argument.

]{u1e_ in England and in India.

"I313. In the czbscrrce of or: express provision to the contrary, every Central Act or Reqiilarrmi
Gcwmment to mode on or after the. . . .. . . .da_r of . . . . ..19'i' ,3 sulmll be binding on the
government." 10.9. It may be interesting at this stage, to refer to the ancient Indian theory on this
point. According to some scholars. support can he found in some ancient Indian texts for the
theory . Kozuanann-i:aa 'V. Fo!yl5.lm:J'c_ (1987), 205 US. 349. 353. . Holmes Laski letters.
(Howe Ed. 1953}, Vol. 2, page 322. . DLLguit_ as quoted in Schwarts, Introduction to American
Administrative Law (1958). page 215. . Store of PF'-err Bangui 'V. Corp. of Calcutta, A.[.EL
1967 S.C- 997. . Union of India V. Jubb, .-1.1.11. 1968 SE. 360.

. For High Court decisions sec para 10.1.4. nsfi-a.

1' {a} Ba-.r.-' Ami-1'}: Sirigfi -sr. Union aflndio, [1933-J 1'5 Punj. LE. 1 (F.B.).

(b) M. V. Industries (P) Ltd. S". State ofKerai'a, (I971) K.L.R. 123. (cl Srare ofM_rsore v. ILG7.
Ku1.irorrei'{l9Tl) 73 Born. LR. 1'23. A.I.R. l9'i'2 Born. 93.

(d) Unilm offndia V. Sugrnii-or', A.E.R.. 1.969 Born. I3-.

-(oi Coiieerar Scmrft Arm! V. Veaiinrhazcharfor, A.I.R. 1972 Mad. E48.

3. Due oic JTJ. nenccrneni of amendment Act to be entered.

d\UI4=-.Lu:~..ii-

be bound.

Position_ in anoi-

cnt India.

Sec! ion I 3 -C (New)--

Priority debts due to the Government.

Position as to taxcs--~Supremc Court judgment.

Limitations indi-
cated by Supreme Court.

Debts other than taxes.

Areas not forming part of British India.

Relevance of doctrine that Crown is not bound.

that thc iflw, being of divine origin, bound the king and the subjects alikc.1 Howcwr, we do not
propose, to express any opinion in this matter. because. before we do so, an examination of the
problem involving iurthcr stiidy in depth will he i'cquiri;r.i, and we think that such exami- nation
is not necessary for the purposes of this Report.

10-10. We have already dealt with one question concerning'-" the Cioycrnment. Another ques-
tion relevant to the position of t.he Government concerns the priority of debts due t.o the
Govern~ merit. In general, the Government has preference in respect of the payment of debts due
to it. As early as 1363, in a judgment discussing the entire history of the Royal prerogative in this
respect, the High Court of Bombay" laid down that a judgment debt due to the Crown is entitled
to the sumo precedence in ei-Lecution as a judgment debt in England due to the Crown, provided
there is no special legislative provision affecting that right in the particular case.

But there are certain refinements and limitations as to this doctrine, which require to be
considered.

10.11. So far as inconu-:--tux arrears are concerned, it has been held by the Supreme Court' that
the Government of India is entitled to claim priority over debts due from the citizen to unsecur-

ed creditors.

The basic justification for the claim for such priority. according to the Supreme Court. rests on
the well-recognised principle that the State is entitled to raise money by taxation, because, unless
adequate revenue is received by the State, it would not be able to function as a sovereign
Government at all.

10.12. Nevertheless, while laying down his principle, the Supreme Court5 was careful to indicate
the possible limitations of the doctrine. Briefly, these limitations were : first, that the judgment
(of the Supreme Court) was limited to arrears of income-tax; secondly, that the question whether
the same common law doctrine applied to those parts of India which were previously comprised
in the former Indian States may need separate consideration, and thirdly, that a parti-

cular statute may affect the prerogative right of the State.

10.13. The question whether the priority applies to debts other than taxes has been the sub- ject--
mattcr of some controversy" amongst the High Courts. The Bombay High Court has answered it
in the affirrnativci, while the Calcutta High Court has taken a different view.-"
10.14. It may be noted that there is no proot that the doctrine of priority of Crown debts was
given judicial recognition in the territory of the Hyderabad State period to January 26,1950."
10.15. Another aspect of thc,mat.tcr which requires consideration is, whether the well-known
decision of the Supreme Court,"-' holding that the common--]aw doctrine that the Crown is not
bound by the statute is not the law in force in India, has any bearing on the operation of the
doctrine of priority of Crown debts. The Bombay High Court" has held that there is no warrant
for treating the two principles on the same footing. The High Court took the View that the
doctrine that Crown is not bound by statute is archaic and undemocratic, while the principle of
the priority of Crown debts is "based on equity and justice. and serves an important public
purpose."

1. (an RN. Sen. Hindu Jurisprudence. page 31-

0:) Dr. S. K. Ayangar. Introduction to Dikshitar, Hindu Administrative Institutions. pages 32. 33.
{c} NN. Law Studies in Ancient Indian Polity, page 135.

. Para 10.1 to l0.9.supra.

Secretary o_f.S'tai'e for Irrrfio V. Bmnbay Lmrdiflg Md 351'}-'JP1'"§ C0HIPfmJ". U 353) 5 T3-
H-C-K 23-

. Para 10.12, infra.

Biiiiderr Supply Corporarioi-z V. Union of India, (1965 . Sec Um'o:1o_f'Ina'i'a v. Oflictiaf

As.rz'gnee, (1970) 7'3 Born.

_ Sec Ur-zian of India v. Ofiiciat' .4rsi'gnee, (197-'0)?3 Born. Law Reporter 62 M'r.rr!I \'.
A.'snonrm' & C'o., .-5..I.R. 1955 Cal. 433.

C'm'!eetm', .4urar1gahm:f V. Ceirtml Bank, A.I.R. 1967 S-CL 1331 State of West Bengal V.
Corporation ofcaicirrra, A.l.R. 1967' S.C. 997. Para 10.7, supra.

Um'0n offndin V. Qificiai .4.s.rr'griee, (1970) 73 Born. LR. 623-.

) 56 l.T.R. 91, 96 to 98 (S.C.).

Law Reporter 623, 628, 632.

3, 628, 632.

._._ '."S'-"'§D9u~.ao~.-_..«.;st._.-N ___ ..« . ....._ ...._«,P _..__i__.__, ,___, _ _ '.-..':1_ __ . . ... _

------r---flu...___ _ i

--as -u,. nu.---- -

-11 1 . . .4 ' r , 5 .. r . ' 1 i 3]')(1'\.'(: di:-_(_';1g.,§.'i4':_] 'J_-'|jt ':'.(|\_?s' '.l1'ti.i tl".9l'('. ].'.:- l']E'Cd
i{i .sLlEii.. LhC lEi'|.'v OH lllf.' Sl.Il]]l3CL1%:efiVfr0r Scull":

of the prEorit;. of the tfiebts tin: to Gt'\":T[1]'_'tCtli. for FI;"i"CT[ti reasons. ----

(_i} ll}: }'}I;J2~Sll'.lt_' ii'.'i'*ii!-'l'._i-:')t'="-i on '-_he tloetrine-, referred to ever. in the judgment
of the Supreme Courti;

(iii the practical importance of one of the possible limitations. namel}-'. the opera- tion of the (
ocirine in relation to debts other than taxes ;

tiiii the C'I.1l'filCL of decisions between the Bombay arcl Calctitta High Court on the last--
ment.ioncd point=;

(iv) the tgticstion of ciicct of the Supreme Court jutlgtrtctlt relating to the binding efiect of
statutes: on the Governnicnt on the doctrine of pL'1O1'1l_'§."3L and (V) thc miccrtaizt position
as to how far the doctrine of priority of debts due to the Government is applicable to territories
not formerly comprised in British India'.

10-1?. Bci" ore a conclusion can he reached as to the proper rule to be enacted in this respect. it
is essential to go into the possilj-le justifications for the rule of priority.

The first general jnstifieatioti is that the State should be able to discharge its primary govern-
mental functions, and funds are needed for this purpose.

As the Supreme Court has observed' :»-

"it is cssei-1:i:.=l that as a f-Sovereign, the State should he aisle to discharge its primary
governmental functions and in order to be able to discharge such functions efficiently, it must be
in possession of necessary funds, and this consideration emphasises the necessity and the
v.=istlon:= of conceding to the State the right to claim priority in respect of its tax dues .

In at Bombay case," it was observed. ".F.vcn in a democracy and even under socialism the State
must have [.'L'l'[.F!,l'J rights ttz:~;l privi eges. The State has to govern. the -State has to find
money to he used for st:-r.;ia€ist.ie principles and Courts have always given every facility to the
State to realise moire;-' u-hie!'-. are not collected for any private purpose but are intended for the
public cofier and which are ultimately intended for the public need. This principle. which has
been accepted by our Courts, is not a principle which is peculiar to British jurisprudence".

Possible instill-

cation for the rule of priority Considercd----Di.s--

charge of gov-

crnmental [unc-
tions.

10.13. Tito 3-CCt2I'i{l jnstificaiion for the rule of priority is the doctrine that where the title of
Ff'l1'3'"°""'°3' °f the King and the titic of a subject concur. the King's title must be preferred.

The folio"--'i_ng statement. to he found in Col:e"s Commentary on Litigation, which was quoted
in a Bornhaj, cast:.7 niziy he referred to in this context zrw " . . . . ..'l'sis: i=7_ing_ ltis
pI'Crt3gtili'v'C. regularly is to he preicrretl, in payment of his duty or tlcizi, hctore any subject.
at-Jiough the Kings debt or duty he the latter; and the reason hereof is: for that the st4.'.«.-rm."
r'i'gis es.' }'undame.n.ttmt belli er' firtn:n;:e:ztt.nrt pttcilt."

I. Bn_1ln'3r.-I St'_.'?,|'J£'_l' {.'n.",rJ;:-mr."iJr: v. L-'error: of Iilsfia. (19651 55 I.T.R. 9l, 96 to 98,

Para l0.l.'-3, .strpr.:z.

2.'. P€tI'i1 ill? 'Iii ltll I3, supra.

3. P174 H. I5. \LI'_.'?"i!-

-1-. Para ll}. ll, art-_': ll}. 14, .\'.'J'_i'.?l'."l'.

5. Bxiln":-_r .5':-up!-' t'."J.='.t:nrn'_-"Dir '.-'. t:'.'1t'rm r:_.I")'r1:.haI, ([965) 56 I.T.R. 91. I03
lS.C.).

Fr. BJ'1--'t' .2-,1' fsr ,'.'.-r t.-'. 8'>:<.- H' H, -T195 2] 57-' 3 :11. LR. 3='1_5, 364 (Chagla C..l.).

'.". 3rF."}'{'.'!r.H"_1.'.'.j!'-.5'!(I:'F B ;.=.1.-.'>.-z\.' L-..r.ru';':rg.1.*ad5fif;Jp.!'irg C7,. (1 353} 3 B.

H C R, '13 . 13, 15 M of [-awf74--lCI Ieofthe Stall.

Public welfare.

Priority jttstified at present day only for taxes.

Recommendation.

Coke pointed out this right is based upon the Latin niaxim Quttmrfo jttr t.'(Jmi'nf regi.r er
Subditf C"Of'lCtt!'."ef'l2', ms regtlir preferferfl deficit. (Where the title of the Kine ':[T'l(.l the
title of :t subject concur, the Kings title must be preferred).

10.19. The third justification for priority of Governnienfs debts is the aspect of public welfare.

A full Bench of the Madras High Court1 has pointed out that the rule is based upon an important
doctrine of public welfare.

"This rule may he said to be the outcome of the maxim solos popm't' suprentn fax {regard for the
public welfare is the highest, law). It is but natural that a debt at large, should be preferred to the
debt of rt single creditor."
1020. As against these possible justifications, it must be remembered that every,' rule of priority
created inequality and in a democratic country, provisions creating inequality can be per- mitted
onty within reasonable and justitlable limits. Having regard to these considerations, it appears to
us that the principle of priority can, in modern times, be justified only to the extent to which it
can be said to serve a public purpose." Such a public purpose can be predicated in respect of
taxes and fees due to the State. So far as taxes and fees are concerned, it is ttndeniable that the
principle is tteccssary for the working of the governmental inachincrgr. For that reason, the
claims of the iansecurctl creditors have to yield to those of the State. At the same time, there is :1
basis for treatir~g debts other than taxes and fees on a footing different from taxes. It is an
accident that the particular debt accrues to the State. The general rule that none should have
special privileges should be allowed to operate in the case of such debts.

10-21. Accordingly-', we recommend the insertion of the following Section. Section 1343 (New)
"I3C. In the n.b..venc'e of an express prow'.rt'on to the contrary, a debt due to the Government
under any Central Act or Regulation made on or after the . . . . . . ..doy of. . . .197 . . . . . . .." shall
have priority over other debts not secured by or mortgage or charge, if the debt is in the nature
tag" .'_.' mix or fee, t.».'.r.t not o='herivi.s'€.".

T1-r'ru'r,1' Bank Ltd-, (I962) 44 I.T.R. 189, [95 {Mad} (F.13.fI.

l. C".-.:Nr=.:-tor of T:'rr1c}1i'mpo.NrT V.

2. (T. para l0.l9, .5'!J]J?'fl.

'_ 1]-;i_-_ of cointnencczitent of amending Act to be B11t€1'¢d-

-4 t t «rt.

-t{ CHAPTER 1 I POWERS AND FUNCTIONARIES _ ' 1 11.1. 1-'rot'i.~;ions tts to powers and
functionaries are contained in sections 14 to 19 of the tmmductory. Act, and we deal with theri in
this Chapter.

11.2. Section 14 provides tltat where, by any Central Act or Regulation made after the com--
Stlactioin 14:--Alp-mi . . . . -- 163. 011. D S rnencemcnt of this Act, any power is conferred,
then, unless a different trttetttton appears. that 3),? instrument, power may be exercised from
time to time as occasion arises. I'eB0mfl_I~'-'I1<1~=d-

The section does not mention statutory instruments, but it has been hcldi to apply to them.' We
think that it will be useful to codify this interpretation, by including statutory instrurnents
expressly in section 14, and we recommend its extension accordingly.

11.3. There is another point concerning section 14. While the section provides that powers
§f°;'"'-'"§"g:E°"
conferred bv statute are exercisable from time to time (unless a ditlercnt intention appears from
tion 14 to duties; the context), it is obvious that the position regarding dtm'es'imposcd by statute
should not be dis-

similar. Accordingly. we recommend that the section should be extended to duties also and
revised as fo1lt;tws..

Revised .tectt'rm 14

14. (1) Where, by any Central Act or Regulation made after the commencement of this Act or by
any statutory instrument made thereunder, any power is conferred or any duty imposed, then
unless a difterent intention appears, that power may be exercised, and that n-'ttt3.: shall be
performed, from time to time as occasion requires.

(2) This section applies also to all Central Acts and Regulations made on or after the four- teenth
day of Jttnuary, 1887, cmrt to 5I:??tt'!0r_1' instrunicms maria sltercurtder.

11.4. Section 15 provides that where, by any Central Act, or Regulation. 3 power to appoint
Section 15_--I-:e-_ any person to fill 3.2119 ofiiec or execute any function is conferred, then.
unless it is otherwise expressly protided, any such appointment (if it is made after the
eornrnencement of this Act) tr:-ry instruments.' may "be made either by name, or by virtue of
ofiice. Some of the more recent decisions" on the ,socfion have brought out a few aspects of the
application of the section. We propose to extend this section also to statutory.-' instrurrtents. The
section should be revised as under -----

Rewlted section 15 .; 15- Where, by any Central Act or Regulation, or b__t= any .stat.r:tor_t.'
ins.'t-trttzem tmzde !he.re"-- under, a power to appoint any person to fill any oflice or execute
any function is conlt-1'rerl, then, unless it is otherwise r;pressly provided, any such appointment,
if it is made after the commence- ment of this Act, may be made either by name or by virtue of
oflice.

1. Sftrm.-tr:ghat2t' 2'"i'trr:.s,'mt'r V. Kttrrju CJ'2e.rzt'-er, A.l.R. I971 Mad. 3?, 39. para. 4
(Alagiriswami 1.).

2. State ofU.P. \'. Babttratrt, A.l.R. 1951 5.4:. 751, 761, reled 0:1.

3. {a} Aiirfrrl Hr.r.s'.I.'nr't: '\-'. Stare offfujurar, A.[.R. I968 S.C. 432 ; tb] PJ'. V. Sh."t'
RamJ'Jr'mdray, A.l.R. 1960 A.P. 282. {C} P.P. v. Jfltitfk 5I':et'i'_.f.l', A.I.R. 1965 A.P. 37;'. id]
Jr-'_l'-"I.'t!r'-"rt! V. Utrfon rrffttdfu, A.l.R. I970 Guj. H33, H7. (E) State tn Safer, A.l.R. l9?0
Tripura J.

Station 16.

Section 131(1) Suction 18.

Section 18-
Recommenda-

tion.

?O 11.5. Section 16 provides that power to appoint includes power to suspend or di_smisg,, I1
needs no change.

11.6, Section 17(1) reads as follows "I7. (1) In any Central Act or Regulation made after the
comineucemeni of this Act, it"

shall be sufficient, for the purposes of indicating the application of a law to every person or
number of persons for the time being executing the functions of an office, to mention the ofiieial
title of the oflicer or present executing the functions, or that of the offioer by whorl] the functions
are commonly exeCutcti.'". ~ The words "at present" are not very happy. We, therefore, propose
a small verbal change and recommend that section 17(1) should be revised as follows :-- '
Rewiied section 17(1) "l7. (1) In any Central Act or Regulation made after the commencement of
this Act, it shall be stlflieient, for the purpose of indicating the application of a law to ever}:
person or number of persons for the time being executing the functions of an office, to mention
the ofltciitl title of the otlicer executing the functions, at the time when the Central Act or
Regulation is madh. or that of the oflicer, by whom the functions are commonly executed". '
11.7. Section 18 deals with the powers of a successor to an otiics-._-_ It needs no change.

11.8. The Act is silent as to the exercise of powers by delegates. We think it desirable to make it
clear that where a power is delegated and the exercise of the power is dependent on the opinion
of the authority on whom the power is conferred, the opinion to be formed ( as a condition
precedent} will be that of the delegate. We recommend the insertion of a new section for the
above purpose on the following lines:--

Section ISA (new) ISA. Where, under any Central Act or Regutnrioi-r n-rode on or after the
........ ........ day of ..l, or under any statutory instrument made there- under, ---- -"

( a) the exercise of a power or discharge of a function by a person or authority is dope!- dent

upon the opinion, belief or state of mind of tl-..'1t person or authority in relaticm to any matter,
and

(b) that power or function has been delegated in pursuance. of such Act or Regulation or
statutory instrument, then, save as is otherwise expressly provided by such Act or Regulation or
statutory instrurncnt, the power or function may be exercised or dis- charged by the delegate
upon the opinion, belief or state of mind of the delegate in relation to that matter. » It may be
noted that a similar point arose in Hazra! Syed Shah 1:. Coinmzbrsioner of' Wakfofi where the
Supreme Court approved the observations made by Lord Benning in Mmzg-9m".r cast' and
stated that where powers and duties were inter-connected and it was not possible to separate one
from the other in such a way that powers might be delegated while duties were retained and ' vice
verse, the delegation of powers took with it the duties.

I. Date of Amendment Act to be entered.

2. Horror Syed Shah. v. C'or1tnih:rio:Jt:r 0f W0-iifar. A-I-Pu 195343-C 1036-

3. ,Edward Mlnrgoni \-. A.G. of .'\"a.I':1rerrr Rhorferio (1960) A.C. 336; (1960) I All E.R. 446
(1-I.L.}.

, ..V_..._.....--_--...---._._...........V.... .. .7, ?I ' ~ 11.9. Section 19 deals with the pow;:1's of oiiicial
chiefs and subordinates. it needs no change. Section 19.

11.10. Wiien matters of form prescrit-:d by a statute are departed from. nice questions as 5¢"--
;"°"_19A to the effect of such departure arise. In general, courts take a common sense view. and
disregard Deviation [mm minor deviations not affecting the substance. it is tints that Statutorji'
recognition is given to what g';1:g3n;En da_ the courts do in praeti-2e, by r. suitable provision in
the General Ciauses Act. The procedural iion_ Codes alrcarly contain provisior-.5 achieving the
same resultl. A new provision'-' as the efiect of deviation from form is, tlierefore,"
1'E.'CO£11!11€l'lCl€Cl as follows'*:--

.Seci'r'on 19.4 (I. ew) "19A. I'l"'lIt*H('l'E." o form is pr'e5cr."bed for or .rpecz'_fied for ring,' not
by rzirv Central Act' or Regulation, or by rim.' s:rm.r.-'or;.-' iI1'.i'f?'IH?'3(.'iI." nmde
t'he;'r?tt.r.~'der, Meir, sm-'e as r's_orIzerw.ise expressly provided by such Cfillifll Act' or
Rr'grrltin'r2ir or l1_1_' Fucfi .s':'ri.'iHrJr_'.' frirlrmnem, any (lei.-'r'm'i'0m' titans'- from neither
a,ff.ec'ifng the .mb.Y!rim'e nor L.'fllCtIlfl?€£l In rnisleari, shall not render the act or form
iiivalidfl'.

11.11. We considered the question of inserting a provision ancillary powers, on the Ancillary
following lines :----- powers' "Where, by any Central Act or Regulation, made after the . _ . _ . . .
. . . . . . ..da;v' of power is conferred on it! person, ofiiccr of functionary to do or enforce the
doing of any act or 'tliing. ail E-Llilj powers shall be deemed to be also conferred as are neces-
sary to enable the pcr:-zen, ofiicer or functionary to do or enf-i:'ee the doing of the act or thing."

We have, after careful consideration, come to the conclusion that it is not unlikely that such , a
provision may be abused, and so we are against its insertion.

I. (8.) Sections 533 to 537, Code of Criminal Proezclure. 1398: (b) Section 99. Code of Civil
Procedure. 1908.

2. Cfi Russel, Legislative Drafting and Forms, (1933), page 585, Model Interpretation Act.
Clause 29.

3. Compare section 19(g), Uniform Interpretation Act, (1956), page 26!).

4. See also section 30 ofthe Tran-encore-Codiin Genera] Clauses Act, 1125 (T of 1125). _

5. New section I91; can apply to existing Acts also.

H.
l..__ i u l P I CHAPTER 12 STATUTORY 1N S'l'RUMEN'l'S Irtt.-'odtrctor_v Introductory. l2.l-
Sections 2'11 to 24 of the Act contain prmisions as to statutory instruments {subordi- nate
legislation).

V3503 1965- 12.2. Various questions have occupied the attention ot academic writers and of the
judiciary . §1fi_f".fiC:':{'§mi"g in regard to delegated legislation. Of these questions, the
following are relevant with reference to legislation. the General Clauses Act :-- -3 (:1) Various
forms of .5'Iafu_!or_v instruments and questions of nomenc'iature---

(i) rules' of general application;

(ii) orders, (usually issued by the Government o-n particular matters) ; {iii} by-laws (usually
applicable to limited local areas) ; I

(iv) schemes {usually containing elaborated provisions) ;

(v) forms;

(vi) notifications.

A convenient name covering all these. would he obviously desirable. and we are sug- gesting the
expression "statutory instrument".

(b) Procedure for ntakingisttbordintzte legislation -

ii) Antecedeut publicity ;

(ii) Consultation ;

(iii) Subsequent publication.

(C) Control of Parliament over statutory £nstruments------ Laying before Parliament".

(cl) Construction of statutory instrunze.-m--

(i) Construction';

(ii) Power to issue rules etc. to include power to add etc-.5;

(iii) Construction of provision in the parent Act for publication";

{e} Inter-relationship between the parent Act and the statutory z'nstrument---- ti) Making of rules
etc. between passing and commenceiueiit' of the parent Act :

(ii) Continuation of orders etc. under a repealed lawa. ' we are mentioning these topics here. to
show the importance of the subiect.
L A.L.J.R. 300.

See recommendation relating to the expression "Statutory instrument" in Chapter 3. . No

provision at present.

. Section 20.

Section 2|.

Section 23.

. Section 22.

. Section 24.

=°-4:=~.v-4=-L-=2» Rules generally-to carry out the purposes are dealt with in Uta}:
Cons'trrtcIt'ott. 39 A.L. JR. and in Jacob --. ' _ H'... . - _.._...-.-jg-....,,.,_.._,, _ _ .,,_.._..,...-... - -- -
u.w------- - .. .. ., ..--.t-

i .. ...----u.._...-.- ----- - w x -

Law not .wmrdnrn':'.rerl or NJ snjegunrnk 12-3. The law relating to subordinate legislation in
India has not yet been standardised in Law remix all its aspects. A cursory survey of the various
Central Acts conferring power to make rules, l':g1.;';':i':'n"5% regulations etc. reveals that until
recently, the Legislature did not follow any particular pattern, standardised. with reference to
various matters concerning subordinate legislation. This itself indicates the desirability of having
standard and uniform safeguards. ~ 12.4. It may also be noted that during recent times the
discussion has centred more round safeguards in regard to delegation than round the standards
laid down by the legislature while 0 'snub' delegating its powers. It was observed by the
distinguished American Writer' Davis, in 1953 :--

"The protection of advance legislative guidance is of little or no consequence as compared with

the protection that can and should he provided through adequate procedural safeguards,
appropriate legislative supervision or re-examination, and the accustomed scope of judicial
review."

With this. we may compare the following comment made by the same writer in'--' 1965 :---

"The impact of the Treatise has been rather substantial in its recommendation to state courts that
the test of validity of delegation ought to have more to do with safeguards than with standards.
The cases reviewed in this Supplement show that the standards test is on the way out, and the
safeguards test is in the aocendancy."

12.5. Having regard to what is stated above, it appears desirable that the General Clauses Need to
Act should contain certain safeguards in respect of subordinate legislation. Different safeguard!
safeguard'. are provided in different Central. Acts. It would therefore, be advisable to standardise
some of tlwcinrlispensable safeguards, and to incorporate them in the General Clauses Act. This
will not Olly: to uniformity, but will also shorten the language of individual Acts, and save cases
of any inadvertent omission of the draftsrnan to provide such safeguards in a particular Act.
Where it is felt that such safeguards are not necessary, an express exemption can be given in the
Act.

Two important .rnfegr.=:zrds in respect of subordinate legirlation _ 12.6. The two safeguards that
appear to be essential in respect of subordinate legislation ;[;';':gulm"°""'Il are :---~ ' . (a)
publication of statutory instruments", and I T (b) legislative scrutiny of statutory instruments'.

'lih_€ first refers to the immediate stage. The second relates to a later stage. We shall now prone
to deal with these safeguards.

Publication. and commencement l2.":'. First, as regards publication of statutory instruments",

some of the Acts conferring I safagumfi at pow'er§to make rules are silent with regard to
publication". The rest of the Acts do require some publication. -: sort of publication- !\ large
majority of them require publication in the Official Gazette.» Here i , .,f'jj again,-no uniform
formula is adopted. ln some Acts, all that is stated is that the rules shall be.

1. Davis, Admntistrativc r.atfi};adg}.-, (lass), Vollul, page 93. _

2. Davis. Adrninistrative Law Treatise, (1955) pocket Part, page 55, para. 2. ll, cited in Jaffe and
Nathanson Administrative Law. Cases and Materials (1968). page 93. '

3. Para 12.7 er .-.-eq. Erzfra.

4. Para 12.19, et seq. infra.

5. Para l2.fi, sr.r,I:Ira.

6. Eng. ta) Section 18(1). Census Act, 1948 (37 of 1948}.

lb) Section 13(3). Central Sales Tax Act, I956 (74 oF1956), Position in England as to
publicaticnl.

Position in Australia to publication.

IS Position is i -

New Ziealiind as to ptthlicaion.

74-

published in the Otficial Gazette} In some other Acts, rules are required to be made by notifica-
tion in the Ctfficial Gazette." There is another category under which rules are not to have effect
until they are published in the Ofiicial Gazette."
-There is yet another variation of the formula, which provides that. the rules shall be publishdii in
the Official Gavctte and shall thereupon have effect 'as if cnacted in'the Act'. [e..g., see section
59(5), Mines Act f of 1952)]. It is. thus, clear that the present law relating t.o-publication:-I9f"~
subordinate legislation is unsatisiactory. it will be instructive in this co-nnecion to consider the
position in some Conitnonwcalth countries and in. the U.S.A.

12.8. In England, before 1893; subordinate legislation was required to be published in the
London Gazette; and if as Carr had observed] was 'buried rather than revealed}, in the volumi-
nous miscellaneous contents of the Gazette. The Rules Publication Act, 1893, provided for
publi~ cation of statutory rules by the {)ueen's Printer. Under this Act, the rules and orders, with
some exceptions, were to be sent to the Queen's Printer and to be numbered by him and, subject
to regulations, printed and put on sale. 'lt is true that not all rules and regulations were printed,
but every instrument which was oliicially numbered was mentioned in a classified list at the end
of the annual volume of the Statutory Instruments printed by the Queen's Printer. The Corn-
mittee on Ministers' Powers, while reviewing the working of the 1893 Act, recommended that
the publication should be made a condition precedent for the coming into force of all
itlstrumcltlts except those that have been published in draft under the pre-publication rules
andsubsequeatly issued injsubstantially the same form as in the draft. In such cases the
Committee recommended that the public notification of the enforcement would be sutficient
Nothing came out of these recommendations till the end of the second world war. In 1946, and
Act was passed, called the Statutory Instruments Act, which repealed and replaced the 1893 Act.
This Act repeated the provisions of section 3 of the 1893 Act as to publication, and provided"
further that "it shall be a defence to prove that the instrument had not been issued by his
Majesty's Stationery Ofice at than date "of the alleged contravention. . . . . . ." A serious
drawback of the English system is flit. publication is not made a condition precedent to the
operation of the statutory instruments."

12.9. In Australia, section 5 of the Rules Publication Act, 1903-1939, provided that an insub-

ment of subordinate legislation should be numbered, printed and made available for sale by the
Government Printer. The same section also provided for publication, in the Australian Gazette of
a notice that a rule has been made and that copies. thereof would be available for purchase at
specified places. It may be noted in this connection,' that the provisions of section 5 of
{';Australian) Rules Publication Act, 1903-1939, have to be read with section 48 of the Acts
interpretation Act, 1901-1966, which makes a general provision for" compulsory notification the
making of all regulations. Thus, in Australia publication of delegated legislation is compulsory,
unless there is a specific exemption in any Particular Act. In fact, publication is not only
compulsory, but also a condition precedent for the coming into force of subordinate legislation.
Until 1937, no regulation could take effect unless it had been published but in 193? some
exceptions based on administrative convenience, and, broadly speaking, not involving the rights
of individual citizens, were provided for under this rule." The Australifin for obvious reasons.
won universal acclaim.

in the Gazette of system has, 12.10. In New Zcaland, until as late as 1936, there was no provision
requiring the sepai[_fio- publication of delegate-.1 legislation. Whenever provision was made for
publication of mgtilufpga made under a particular enactment, they were published generally in
the New Zealand Gsnqp, . See section 33, Central Excises etc. Act, 1944 (l of194-4).

.See section 41, Warehousing Corporations Act, 1962 (58 of 1962].

_ Section 36(1), Cantonrnents (House Accommodation) Act, 1923 (6 of 1923}.

Carr : Concerning English Administrative Law, (1941), page 57.

. Section 3-Statutory Instruments Act 1946 {E11Eli5h) , Kerscll : Parliamentary Supervision of

Delegated Legislation, (1960), page S.

Kersell: Parliamentary Supervision of Delegated Legislation. (1950). Page 9-

. Benjafield and Whitmore. Australian Administration Law (19713. nagt 105-

oa3..i_a~u.:i:.-...ai{_i_.i i _ "--IV--?fi' .._____..._._.,,-._..____.

-- ------------.:---p----.----.n.. -....y.

e .8.

and in a manner not very much different from that which obtained in England prior to 1893._ For
the first time in 1936, an enactment of a limited character was passed, dealing with publication of
subordinate legislation. Section 3 of the Regulations Act, 1936, provided that all regulations,
except those exempted by the Attorney--General, should be published. --

Position in Canada, as to publication 12.11. In Canada, until the passing of the Regulations Act,
1947, there was no legislative ~p.rcn-Iisiort requiring systematic publication of delegated
legislation. It was only after the furore which the notorious Ottawa Espionage Investigation of
1946 created, that the question of syste~ rnatic publication of rules came to he Considered
seriously. A Royal Conirnissimi was appointed to gorinto the matter, and ultimately the Statutory
Orders and Regulations Order, 1947, was passed- Most of the provisions of this Urdcr were
enacted in the Regulations Act of 19-137. This Act appiies oniy to instruments made in the
exercise of the legislative power or to regulations for the contra- vcnlhn of which a penalty of
fine or imprisonment is prescribed by or under an Act of Parliament. Certain exceptions are made
even to this rule, but generally speaking, the Act covers all instru- ments likely to prejudice the
rights of individuals and personal freedom. The Act provides for a system of revision, recording,
numbering and publication of the various regulations. It is not to go into details of the Act. A
significant provision of the Act' is to the effect that no person shall -be convicted for an ofience
consisting of in contravention of any regulation that was notpublished in the Gazette of Canada
except where the regulation was one which was exempted the operation of the rule as to
publication or where it is proved that on the date of the contravention reasonable steps had been
taken for the purpose of bringing the purport of regulation to the notice of the public or the
person charged. This provision is similar to l'.]_:a.£,1:rnbodied in section 3 of the (English)
Statutory Instruments Act" of 1946. Thus, in Canada, In. .' England. publication is not a
condition precedent to the coming into force of subordinate tion, but non-publication, is a
defence.

12.12. In the United States of America, Congress enacted, in 1935, the Federal Register
Pogifio3inU_S_A_ Act.,'. which was an aftermath of the judgment of the Supreme Court in
Panama Refining Co. v. é?u']° P"b]5'"' _ Bynrj.'-'5 It provides for a system of publication of all
Federal Regulations, Rules and Orders of ' ; tjoietal application, and for their legal efiect. Under
the Act, all Federal subordinate legislation 9 shouldbe published in an official publication called
the Federal Register. This Act anticipated the and the Canadian Acts, on the subject of
publication and specifically provided that I ."djIcumen ", i.e. Rules and Regulations and Orders
required to be published under the Act "shall not be valid as against any person who has not had
actual knowledge thereof" until it had been -filed for publication." ' ' 11.13. Taking all the
circumstances into consideration, we are of the view that the safe-guard Dean-ahilltyor _ fling
publication is required; though, in our view, it should apply to statutory rules and 1°"l"'°"fi°"- its
and general orders of the Government only, and should not extend to other forms of suboddinate
legislation. Rules and bye-laws and general orders are the most common form of inllsofldicnate
legislation which afiect citizens in the same way as an Act of Parliament.. This is. hololeaver, not
true of other forms of subordinate legislation, such as, orders, which are inconse- quential from
the point of view of the public, and relate to individuals only. A general extension of the
safeguard of publication to all forms of subordinate legislation is not, therefore, necessary it E ,
in certain cases, even give rise to practical difficulties. We have no doubt that where any
subordinate legislation other than rules or bye-laws or general orders affects -the public, the
enactment which permits the making of such ilogislation will make special provision for its
pdblication in the most suitable manner.

......'.."..'.......'-u . ~..

-_.. 49 .'l .d' ..

n on ' 1. Section 6.3 (Canada) Regulations Act, 1947.,

2. Para 12.8, supra.

3. The Federal Register Act, 1935.

-I. Panarna Refining Co. v. Ryan. (1935) 293 US. 338.

5. See, now, the Administrative Procedure Act, (1955) 5 U§.E1. s_eeti_onI 552 and 553. L
Newman, "Government and Ignorance" ([950) 63 Harv. L. Rev. 929. ..

15 M {at I..awf14--11 _ __ E = _wVWf Hr _ . ; $:,'..:é ;' E.

Importance cf proper publica-

: UDII.
Importance stres-

sed by the Sun-

reme Court.

Reeomntendhtion as to publica-

tion. , Amendtnent will fill up pp lathe .' .' I law.

Copies of sub-

ordinate legisla-

tion to be Blade available. ' 7.5 12.14. As observed by Kersell} "if a legislature realistically
expects such legislation made under its authority to be efiective and also controllable, it must
make minimal provisions for publicity and for 'laying' so that it may know what has been done
under the powers delegated to it." The importance of proper publication of subordinate
legislation cannot, therefore, be over--- emphasised. If, as is well recognised, subordinate
legislation has the full effect of law, it is elementary justice "that those who are sought to be
affected by it should become aware of existence. As Carr, in his evidence before the Committee
on the Minister's Powers forcefully," "it would be undesirable if it could be said that obscure
Clerks in Whitehall forth streams of departmental legislation which nobody had any means of
knowing. This he the method attributed to Calligula of writing his laws in very small characters
and-hangiifi them up on high pillars the more effectively to ensnare the people." These
observations with equal force in the context of subordinate legislation. .

12.15. In Harta v. State of Rafasthan, the Supreme Court had occasion to draw to the basic need
for due publicity of laws.' Bose J. observed :-- i " ....... ..we are of opinion that it would be against
the principles of 'natural justice permit the subjects of a State _-to be punished or penalised by
laws of which __ i have no knowledge and of which they could not even with the exercise of
diligence have acquired any knowledge. Natural justice requires that before a t "i. can become
operative, it must be promulgated or published. It must be broad , ' . in some recognizable way so
that all men may know what it is; or, at the _ ' least, there must. be some special rule or
regulation or customary channel through which such knowledge-can be acquired with the
exercise of due atii , , nable diligence. The thought that a decision reached in the secret recesises
chamber to which the public have no access and to which even their accrefi I representatives
have no access and of which they can normally know notliing, " nevertheless afiect their lives,
liberty and property by the mere passing of a Resolution without aflffthing more is abhorrent to
civilised man." 3 " F Bose I. also made a passing reference' to the Code Nepoleon of,France, the
first article which provides that law are executory by virtue of the promulgation thereof and that
they '33] come into effect from the moment at which their. promulgation can become known. T '
12.16. In the light of the aboye discussion, we recommend' that the statutory rules, bye laws and
general' orders should not take place before their publication. ' 12.17. It may, incidentally, be
pointed out that such an amendment will fill in a gap in present law as regards orders. According
to the Allahabad High Court," where a statutory does not indicate its date of commencement, it
does not become effective. The only consequefifi of the order being published in the
ofiicialgazette is that it comes into being as a piece of -s§'J1:l--

ordinate legislation on the statute Book. -From this, it would not follow that -it becgntes. .

with immediate effect. The High Court-pointed out that Acts of the Central I.egislat'1;e _ _ into
force on assent, because the General Clauses Act says so. This judgment j_ _ we have stated
above. -

. I 12.18. While on the subject of publication, we should also refer to another needed in regard to
access to subordinate legislation. Difficulty is often experienced in printed copies of subordinate
legislation. In England, and in some other _ 191: countries, there is a statutory provision that
printed copies of subordinate legislation.

. Kerseel : Parliamentary Supervision of Delegated Legislation (1960), page 6. ' _ _ . 3, Sircecil

Carr's Evidence, cited in Schwartz: Introduction to American Administrative Law. (I95$), page
3'}. . Hm-to v. State ofRa_,r'astha.n, A.I.R. 1951 S.C. 467. = . See proposed section as to the
commencement ofrnles etc. (Para 12 .44 'B, infra].

. (a) ,5'!a?'1? v. Barmleilzar. A.I.R. 1969 All. 134, 186 E (D.-C. Uniyal J.) '

(b) State v. Ram Chane', A.l.R. 1955 All. 526 (13.15).

UIJ:n.l.oJ_l\-I'-' ..5._ 'l'.T available for sale to the public. Such a statutory provision can, at best,
be directory only. We ' , think that adequate steps should be taken for ensuring that printed
copies of subordinate legis- :.. i .5 . . I lation are available to the public at all times.

Parliamentary Control 312.19. We now come to another safeguard pertaining to subordinate

legislation, namely, R.,,,,,,,,,,,.m,,,,,,,,;',j'_ parliamentary control over subordinate legislation.
1'3TlIifiI11°I1*9-FY UOII .

12.20. In all democratic countries, Parliament exercises control over subordinate legislation. In
England, there are elaborate provisions on this subject in the statutory Instruments Act, 1946.
::n_']'t'il1]}':'3i°5£l"lt_iu']"" In India, the Ministry of Law in consultation with the Committee of
Lok Sabha on subordinate by Central Gov- Lcgislation' had evolved a model clause on this
subject, which is inserted in every Act of Parliament °"""'"'* that permits the making of
subordinate legislation. We recommend? that this clause (with some slight variations) should be
included in the General Clauses Act. _ 12.21. In this connection a difficult question which arises
is as to the propriety of providing Ru1 _ for laying on the table of Parliament of rules framed by
a State Government under a, Central Act. G0' 5- ' :1;

The problem has been considered in detail by the Committee of the Lok Sbha on subordinate
Legishtion ; and in the light of the discussions with the relevant authorities, the Committee came
to the conclusion that the best course would be to request the state Governments to have laws
enacted, by their legislatures, to provide for laying of the rules framed by them before their
respective legislatures.
' We do not express any view on this matter, because we think that so far as Acts of Parliament
__,:ict:-ncerned, no satisfactory provision can, for the reasons mentioned by the Committee on ,
g in lrdinate legislation, be made in such Acts regarding rules made by a State Government. ' T 2
- ' :1 Application of the General Clauses Act to subordinate legislation |='?

-, 12.22. We now consider the question of application ofthe General Clauses Act to sub-
application or . - e General ordinate legislation. Chum M to statutory_iastru-

meats.

'£2.23. We have given careful consideration to the question whether the whole Act should
Alflplicatioh of whole Act to apply to subordinate legislation and we have come to the
conclusion that the Act should not, wbordggm lam, in tprnzsfi apply to such legislation. The
practice in the Government of India is that subordinate 'N103 _ _ T '_ tion is first prepared in the
administrative Ministry. It is then sent to the Legislative 5 5 f _ nt (of the Ministry of Law) for
scrutiny only". At the stage of scrutiny, it is ditficult , for-the Draftsman in the Legislative
Department to recast the original draft in the light of the _ Clauses Act. Moreover, subordinate
legislation is of various kinds. Rules made under a _ to constitute only one form of such
legislation. Such rules may, for convenience, be called "lullordinate legislation of the first
degree".

' Sometimes, orders are made under a rule, and, further, there are orders made under such orders.
These may be called "subordinate legislation of the secon " and of the "third" degrees,
respectively. A common illustration of such subordinate legislation may be found in the various
orders made under the Defence of India Rules. Subordinate legislation of the second and third ' is
not always sent to the Legislative Department for scrutiny.

»._'~'..T-

1 It is also to be borne in mind that subordinate legislation is not expected to be drafted with that
care which is bestowed on the drafting of,statute.of _Par1iamen_t._ A rigid application of the-
Geaieral Clauses Act to subordinate legislation, is, therefore, likely to create some unforeseen
oonipiications. Moreover, no practical difficulty has arisen in the interpretation of subordinate
Iegiflation.

I. See para l2.45, infra.

'2. See also para 12.47 infra.

; 3. See also para 12.26 infra.

§ - = ! ?' E . _ C, . .......__.._ _____.,. ,.,,, , _ _____,_ '- . i 2 . , '1 Principles of the = Argo applied
to nu rdinateleais.

latinn.
Supreme Court's approach.

Change" not suggested'.

l'ointsct_:nccrI1.-

1 mg sections 1 mg with subordi-

nate legisinti-rm.

Section 20-.-

R Constructipn ;Of statutory unstru-

meals.

Section 2!.

A Supreme Court case.

' case were these. In exercise of a statutory? power, Government took over the
manag1e¥l::1s1It'7' 1'8 12.24. While the courts have refused to apply the General Clauses Act to
subordinate latio-n,----In terms, they have resorted to the principles of the Act in construing such
legislation. The Madras High Court expressed itself' in favour of the view that on principles of
justice, and good conscience courts have to apply the principles underlying the provisions of '
Clauses Act to the construction of statutory rules. In a Calcutta case? :1 similar view was taken.

12.25. The Supreme Court had occasion to consider" the question Whether the provisions of
section 38 of the (English) Interpretation Act, corresponding to section 8 of the General Clans':
Act, could he applied to construe a Charter constituting a High Court. Marajan J. (as he then-
was) observed:---

"Assurrung, however, but not conceeding that strictly speaking the provisions of tlfi
Interpretation Act and the General Clauses Act do not, for any reason a=pply,_'flH see no
justification for holding that the principles of construction enunciated. it tllififl; provisions have
no application for construing these charters." i ' 12.26. In view, however of the nature of
subordinate legislation and the legislative followed in drafting such legislation, as mentioned in
the above discussion} it is desirah that there should be a certain amount of flexibility in applying
the rules of interpretation to such legislation. Hence, no categorical provision as to the
application, to s.u|::ordinate- of all the rules in the General Clauses Act, is recommended.
Wherever necessary. we considered the desirability of extending individual sections to statutory
instruments. _ _.

Individual sections relating to subordinate legislation 12.27. We shall new deal with the
amendments required in individual sections of the Clauses Act, relating to subordinate
legislation. ' -
12.28. Section 20 deals with the construction of orders etc. issued under enactments. In this
section, instead of the existing expressions referring to notification, order, rule and have-laws etc.
the comprehensive expression "statutory instrument" is proposed to he used. We' thereby
recommend that section 20 should be revised as follows:

Revised section 20 _ . . ,-

20. Expressions used in a statutory instrument made under a Central Act or Reirtiuli shall, unless
the context of the statutory instrument otherwise requires. have the some rd __ E" nteanings as in
the Act or Regulation.

12.29. Section 21 provides that power to issue notifications, orders, rules or bye-laws includes
power to add to, amend, vary or rescind notifications, orders, rules or bye-laws. section
sometimes gives rise to problems in its application to orders "issued under iti§&ii@.} Where the
making of orders is circuirlscribed by conditions, the question arises how far ordefii amending
the original order have to comply with these conditions. i ' 12.30. The difliculty is illustrated by a
judgment of the Supreme Court.' The facts: in ._.,,,.,,,..;.,_, ..

.311 undertaking, and vested its control in 'X'. One of the conditions for the exercise of"

power was that the management was not previously being carried out properly. TE ____ . . . A
L._L flé?

. In re. Chockalz'yrgarl11,A.I.Il. 1945 Mid. 52!. at _.

. Benaori La! v. Emperor, A.I.R. 1943 Cal. 235.

N5. Thread Ca. v'. James Chaick, A.I.R. I953 S.C. 357, 350.

. Para 12.22. supra.

. cf. para 12.2, supra. _ . K. P. Khaira.-1 v. Union offndia, A.l.R. 1957 S.C. 676. 685, (1957)
S.C.R. 1052, 1073.

o~I..n.p..5.aM>-

. -.. _,.._..___._.........s...._....--_._-_......_.. , ,..__,..

because the enactment concerned does not contemplate an amendement in such a case}
"provisions amended by the Ordinance before the next day.

-upon by the Counsel for the State. After this judgment was pronounced, at validating Act was
Jr, was present when the original order was passed. Subsequently, it was decided to transfer the
management from X to Y, and an amending order was issued accordingly. The question arose
whether, at the time of the amending order, the condition that the management was not
previously being conducted properly should have been complied with.
The Supreme Court upheld the legality of the order; but the reasons given revealed a cohflicting
interpretation of the section. S. K. Das J. adhered to the strictly literal construction of the Words
"subject to the like.....................conditions," and maintained that these words applied in all
situations and had been complied with in the case before the court. Sarita!" I. put a limited
constrution upon them, and observed that these words meant that after the amending order is
issued, all the provisions which would have governed the original order would govern the
ameixdlng order also; for example, provisions limiting the duration of the original order. _ Such
difliculties will be avoided if the section is made subject to a dilterent intention.

The application of the whole section may be excluded by a context. For example, where a.
municipal corporation is superseded for a particular period, the supersession cannot be extended,
It is also desirable to substitute the expression statutory instrument in this section.' 12.31. In the
light of the above discussion we recommend that section 21 should be revised R . as £o1lows:-- -

Revised section 21

21. Where, by any Central Act or Regulation, a power to make a statutory instrument is Power
to_ amend conferred. then, unless the context orhsnvise requires, that power includes a power,
mam" mm' exercisable in the like manner and subject to the like sanction and conditions {if any),
to add to, amend, vary or rescind the statutory instrument so made.

lE.32. Section 22 provides for the making of rules or' byedaiws and issuing of orders between
Seclon 21:. the passing and commencement of an enactment.

12,33. Some verbal changes are proposed in section 22.3 In an Allahabad case,' a similar
Agiahabad .~_3,,¢_ was relied upon to support a notification which was issued on the 31st
March, 1956, but which said that the amendment would 'come into efiect' on 151: April, 1956.
The actual decision in that case was, that the corresponding section of the U.P. General Clauses
Act did not to the facts of the case, as the whole Ordinance r according to the majority judgment)
came into force immediately on 31st March, 1956, but no action could be taken under the '
115.34. Incidentally, it may be noted that section 22 of the U.P. General Clausese Act, 1904, U.
P. Amend- as by section 22 of Schedule II of the U.P. Repealing and Amending (Second) Act,
'""'" "°f'"'"' '"- Issditprassed as Act 5 of 1957), has added certain words.

After the words "application of the Act", the words "or in the exercise of any power eificfiuble
thereunder or under any enactment thereby amended", have been added. But, in the Allnliabad
case cited above," these words, diough referred to, were not apparently relied passed! by the U.P.
Legislature, but it was held to be fufilefi. [ ' ' ' ' ' 'Ir Gapailaya Ram V. Stare ofMadhya Pratiesh.
A.l.R. 1951 Nagpur 181, 133, para 6,

2. cf: para 12.2, supra.

1 Para 12.35, brfia.

4. Adam: Bhandar v. Sales Tax Ofiicer, A.I.R. 1957 All. 41'5", 4533, para 52.
5. Adar-sh Blzandar v. Sales Tax Ofiicer, A.I.R. 195? All 475, 432, per: 36.

5. Beirgalt'M'a1v. Sales Tax Ofiicer, A.I.R. 1953 All. 473.

Recommendation.

Making of rules or bye-laws and issuing ocE_._ol-ders between passing and commence-

ment of Act.

Section 23 to be extended to all statutory instru-

ments.

Section 2'5 (5).

' l "J _ Gujarat The Supreme Court upheld a later validating Act' on the subject.

The point of interpretation of the U.P. General Clauses Act was not, however in issue before the
Supreme Court. " " ' 12.34-A. Orders of a substantive nature are not governed by the section,
and, on '_ _ reasoning, it has been held" that a detention order under Act 61 of 1962, made "
commencement of that Act, could not be justifiecl under this section. ' 12.3413. Where a
particular part of an Act comes into force at once, and authorises making of the rules, then
obviously, the rules can come into force though the other partsirltil not come into force".

follows :----

Revised section 22 "22. Where, by any Central Act or Regulation which is not to come into force
f on the passing or making thereof, a power is conferred--

ta) to make a statutory 2'.-asrrunlent, or

(b) to issue orders with respect to--

(i) the application of the Act, or Regulation ................ .., or

(ii) the establishment of any court or ofiice, or

(iii) the appointment of any Judge or oliicer thereunder, or

(iv) the person by whom or the time when, or the place where, or the manner in which, or. the
fees for which, anything is to be done under the Act or Regulation, then, that power may be
exercised at any time after the passing of the making of the Regulation, but statutory instruntents
or orders so In ' or issued shall not take eflect "till the commencement of the Act or Regula ' or.
where all provisions of the Act or Regulation do not come into force" " L: 1? 3 same time, then
till the commencement of the relevant provision.

12.36. As regards section 23, we propose to extend it to all statutory instruments, i

-S: i, ' to cases where a provision of an Act is not to come into force immediately.

12.37. Sub-sections (1), (2), (3) and (4) of section 23 lay down details as to the mam-.r of
complying with the requirement for pre-publication,.and have not raised any serious : . Sub--
sec.tion (5), however, has given rise to some difficulty. This "sub-section =. ioll'ows:-- = T T 5 '
"(s) The publication in the oral-hi gazette of a rule or bye-law puiponiiig to lian§_ " c ' made in
exercise of a power to make rules or bye--law_s alter previous _. shall be conclusive proof that
the rule or bye--law has been duly made? -

12.38. In a Gujarat case,' it was held with reference to section 23(5) that the _ _ authority must
purport to make rules after previous publication, and the words "purpo _ . have been made",
must go with the expression "after previous publication". -It was _-,_

1. J'. K. Jule Mills v. U. P. (1962) 1 S.C.l_'t.. l. . _ , i

2. Venkareswariu V. SHp€H'?Ii'£fld1€l'Ii'..j Central J'nl'.l, Hyderabad. A.I.R. 1953 S13. 49'. 50.

3. Kandoswami v. Emperor, (1918) I.L.R. 4i Madras 59, 73' , Napier J.-

4. See C. J. Shah V. Chhnbalal, (1968) Cr. L..l. 253, 254, para 1. (Gujarat).

.:x 12.35. We recommend only verbal changes in section 22, which should since section 23
prescribes the lengthy procedure of previous publication, sub--section ['5] dispenses with proof
that such procedure has been followed, only in cases where the rules purport to be made after
previous publication. The actual decision in this case was over-ruled by a later decision of the
same High Court ;1 but the construction placed on subsection (5) was not dismissed in the later
case.

122.39. It is, of course, obvious that the presumption as to the rules or bye-laws having
Pfegumpfjgu as bcen_"duly made" do'es not mean that the rules cannot be assailed if they are in
excess of, or :?mi'§='gFe;[";':¢of_

- repugnant to, the parent Act, or if the rules are otherwise invalid.

--n a-ugunnnur---

, . ,, . . . . M ' I 12.40. Also, the words "conclusive proo do not exclude the power of judicial
review by -'.,g,"§.','1'£,,'i,.2 the High Court. r'r°°i"-

In fact, the view taken appears to be" that even apart from the power of the High Court, the order
can be challenged for want of notice.
W-M «-x--......_n..._....- 1- -v 1:72.41. The existing section is confined to rules and bye--Iaws.
We propose use of the Other changes rc-

I . words "statutory instruments", to cover all such instruments. ii" i Certain other verbal changes
are also proposed in the section, in order to simplify it.-" .' I 12.42. It may be noted that section 1
of the Rules Publication Act, 1893. in England, Position in Eng-' land as to pre-

ooifiined a. provision for compulsory pre-publication in respect of those statutory rules to

puhlicamm the section applied. That Act has, however, been repealed by section 12 of the
Sflutlary Instruments Act, 1946. Section 4 of the latter Act does not appear to contemplate
compiflsory pre-publication.

12.43. Accordingly we recommend that section 23 should be revised as folIows:-----

Rcmmmmdmon 3 5 Revised section 23

23. Where . . . . . . . . ..any Central Act or Regulation confers on any authority power to Making
of sta- make a statutory instrument subject to the condition of the statutory instrument
*'%*t:1'Yi"-'_l"""1'"" being made after previous publication. then the following provisions shall
apply, §.,1,1'.-'.§§§.',.'.E""' namely : ----

(a] the authority ............. .. shall first publish a draft of the proposed instrument [5, t23(l)';iaid'
for the information of persons likely to be affected thereby, together with a 9- 5353 I notice
specifying the date on or after which the draft will be taken into consideration;

(b) the publication shall be made in such manner as the authority deems to be suflicient, or, if the
empowering provision in the Act or Regulation so requires, in such manner as the Goverment
concerned directs;

ls. 23(2)] v -....._..».-......___ .....g1--u...--at----..t............m.....,, _ , .._,... _ __ ,..._..-_..._ __,,.t«----

-- - -.r-.- . . .

i.

E (c) . . . . . . . . .. any objection or suggestion . . . . . . . . . . received by the authority p 23" . ~_ E

............. ..from any person with respect' to the draft before the date specified 3' H ' t} E' , in the
notice shall be considered by it, and. where the statutory instrtmtent is 7;? ' ' E to be made with
the sanction, approval or concurrence of another authority, '' i also by that authority. before the
instrument is finally made:

(ti) the publication in the otficial gazette of a statutory instrument purporting to have been made
after previous publication in exercise-of a power to make

2. such statutory instrument shall be conclusive proof that the statutorv instrument i has been
made in compliance with the provisions of this section. I

1. M. R. Partdytr v. Chimanioi, A.I.R. 1968 Guj. Sflflparas. 13 and ]4_ .,

2. Amomobiie Transport Rojas-than LI'd., v. The State ofkqinsthan. A.I.R. 1962 Raj. 24.

3. See para 12.43. infi-a. _ at ' mfiimt -1.2.44. As'to statutory rules, and bye---la1_.vs as already
stated' we propose a new provision, _, _.,_ud.pub1icafion providing for (1) publication of rules,
and (11) the date of commencement in relation to rules :: i;{rul§;a(tInJt:3 and bye laws.
Attention may be drawn, in this connection, to the recommendation made man ' earlier Report' of
the Law Commission, where a reference is made to the (English) S Instruments Act of 1946, and
to the necessity of ensuring proper publication of statfiff iristrurnents and other connected
matters."

Retrospective 12.-MA. We also think it desirbale to provide that retrospective operation mnnot
be p .

°P°'3"°n- to such rules and bye--laws without express authority.

12.44B. We therefore recommend that regarding publication and commencement' Reeom.menda-

" , , - _ tion to insert bye--Iaws and general orders of the Central Government and their
respective eflect," the following 5°°fi°" "°5"'d' new section may be inserted'--

ing publication ' and eosnmenco - , ' wig 3? '''23A. (1) Every rule made or l:-ye--lcw approved 'or
general order issued bv the Central 7 gene]''[ "gm, Government on or after the . . . . . . . . day of . .
. . . . . ." under any Central A_§'t_ 9f the C""''51 or Regulation--- M' ' Government.

(a) shall be published in the oflicurl gazette. and (la) Shall, in the absence of an express provision
to the contrary either in tile flil._II bye-law or general order or in the Central Act or Regulation
under which 5' is or approved or issued, come Into force on the day on which it is published it;

§.'C'»1J o fificiai gazette.

(2) No such rule or bye-law or general order shall come into force fromrr die earlier than the date
on which it is made or approved or issued by the Cerltml Government, unless the Central Act or
Regulation under which it is made or approved or issued expressly confers a power to give it
such efiect.

; , ' _ _ v _ _ : ''Expianation.--In l'hI.$ .'i'€(,'fiI'}fl, the expression --- genera! order" means an
order which ' ' afiects the public." - ' [am or ;a:u- 12.45. We also propose a new provision as to
the laying of rules before Parliament as P '""'°'"' already stated.' It may be noted that the existing
formula (found in most recent Acts) was evolved after a _ series of discussion in the Lok Sabha
Committees on subordinate legislation. -E The proposed new section will apply only to rules
made by the Central Government.

_ We are adding that annulment or modification made in the role so laid should be publislad in
the gazette.

1. Para 12.16 supra. 3

2. 14:11 Report, vol. 2. page 707. para 25- __

3. Also see para 12.14 supra _ _ x

4. Para 12.44, supra. '

5. Para 12.4-4A, supra.

6. Date of cornmencement of the amendlmn! AOHO be '=|1¢9_l'°d- -

7. Para 12.20, supra. ' i_ "_

8. See theifollewing 'Reports of that Co1'nmittee:--v (1) First Report (First ink Sam} 1954' '1» P"
1-1* -

{ii-'p Third Report on Lok Sabha}_. Mar. 955. page 7- para 36- t '

(iii) Sixth Report (1st Lok sabhatflnd Decembm 1955» P8593 13 and 14» 9"' 7'"° 30- § .

, ' (iv) Fifth Report {End Lok Sabha) 5th May, 1959, pages 3 and 9, para 4] to 4-4 and-page 26.
'3 f (V) Seventh Rcport.(21'n'.l Lok Sabha). paces 7 and 8. para 4230 45- " . _ ' r i T ! 12.46. It
may also be of interest to note here that Madhya Pradesh General Clauses Act' 1 makes specific
provision for standardising the procedure to he followed, when any Madhya Pradesh Act directs
that a rule be laid on the table of the Legislative Assembly. 25- -e . 1' 12.47. We recommend that
the new section should be as fo]lows:-- SECHIOH ' --.;3--;:'_._.-,]:.-;

1313. (1) Every rule made under any Central Act by the Central Government on ornuln to bghld
arter the.. . . . . ..day of . . . . . . . . . . .33 shall be laid, as soon as may be after 319:' 7""

it is made, before each House of Parliament while it is in session for a total period of thirt;-,r
days which may be comprised in one session or in two or more successive sessions; and if,
before the expiry of the session in which it is so laid or the stwamfivc sessions aforesaid, both
Houses agree in making any modification in the rule or best:

Houses agree that the rule should not be made the rule shat! thereafter have}.-fleet-.

only in such modified form or be of no effect, "as the case may be, so however thmr. I any such
modification or annulment shall be without prejudice to the '|'flil3l'f3t*-Of, .F- - anything
previously done under that mic. 7 .' I:l-.-I!'.i (2) Every such modification or annulment shall be
published in the official gazette. Modification. -

. 13.48. In section 24, which provides for the continuance of notifications etc. issued under 5,,"-at
, I a law, certain verbal changes are recommended, namely, the substitution of the.

amjtnsive expression 'statutory instrument' in place of rules, etc. Our recommendation. " thew! , I
is as follows:-- .
Section 24-

! :11: section 24,' for the words "notification, order. scheme, rule, form or bye-laIr"," ' ' ' '
wherever they occur, the words "or statutory instrument" shall be substituted. .

In swtion 25, reference to the new Code of Criminal Procedure "should he sllbltithted. Our
recommendation, therefore, is as fol1o\'vts:----- swam 1,' x ' TY-T ' 7 ' 2 - 7 ,' ,_,..';,- .:_z1 '' ' E - -
. :"_:

e -' in section 25, for the words' "the Code-of Criminal Procedure for the time being in . I force",
the words, and figures and comma 'Tthe Code of Criminal Prooedu1'e,- 1974" e ' shall be
substituted.

--~:

r ' 1-} Section 24A. Msdhya Pradesh General Clauses Act.

2. Insert date of commencement of amending Act.

3. This can apply to existing Acts also.

15 M at Lawt14--12 * ~al:«c.:.I.'.~..'.'.-2; = . . .

CHAPTER 13 SEVERABILITY Hf°d"¢'°'Y- 13.1. We new deal with a matter of constitutional

significance, relevant to the Generfl ' ,,_._, J, ,_.CIauses Act.

--:'.f :s' :2. - ' .

I T SeverabiIity--r.¥:e problem Question" of 13.2. The question relates to "severability". In

countries having a rigid constitution, the in"$§? possibility of a statute being declared void is, in
general, implicit. Now, a'sta1:.1te may be partially valid (being in part in conformity with the
Constitution), and partially invalid (heig in part in confiict with the Constitution). Judicial
determination of invalidity of the whole A3 israre, but not so rare is the determination of
invalidity of a part ofthe ACL lb such cases, the question arises whether the invalidity of a part
of the Act aflects the entire Act, so that the Act fails as a whole, or whether the valid portion
survives. The broad principIe.- : '_ ; _ _ A the valid portion can _so survive, is new recognised in
almost all countries which have 'a ' e"° '*"'""' 'Constitution. T ' i ii»! 3 5' _ 13.3. In India, the
possibility of partial invalidity is implicit, at least in respect ~- " _ Tvvith fundamental rights,
because, under article 13(2), a_ law inconsistent with' _ ' 1 rights is void ":0 the extent of the
inconsistency'. The question that arises is how "-- ' be severed into portions which are void and
those which are not. ' e " ' 13.4. In R. M. D. Cltamarbaugwalla v. Union of India} the Supreme
Courtdiscussed the "

question of severabiiity at length. The Court also summarised certain rules of construction hi]
down "by the American Courts, in regard to the question of severahility"of a statrnzeitfortthe
pur- pose of determining the question of its constitutional validity). It is not necessary to quote .
7 the, discussion in full. It is sufficient to state that judicial decisions in India, have, .1: n.;.:.-
:,=t"£ollowed his iudgment. Broadly speaking,' if a part of an Act is void. the rest
is"not,'5'.§ehlH., if it can be separated. I ' Faun in 13.5. In Canada, a similar principle is
recognised. The doctrine was stated as follows' :' T Canada. "Thus sort of question arises not
infrequently and is often raised {as in the present-instnigq) by asking whether the legislation is
infra vires 'either in whole or in part,' but this : , that-when Part II is declared invalid, what
remains of the "Act is' to be examined bit by ' nrder to determine whether the Legislature would
be acting within its powers if it passed j remains. The real question is whether what remains in is
so in: ' ' bound up with the part declared invalid that what remains cannot in- dependently
survive, or, as it has sometimes been put, whether on a fair review of the white matter, it can be
assumed that the Legislature would have enacted what survives without enact- ing the part that is
ultra wires at all." - .

General ptIn- 13.6. The general principle, thus, is that as far as possible, total invalidity of an Act
visit. be avoided. The observation of Cardozo (sitting in the New York Court of Appeals'-',_
"laws are not to be sacrificed by courts on the assumption that legislation is the play of and fancy
. . . . . . . . . . . . . .. Our right to destroy is bound by (the) limits of Our duty is to save unless in
saving we pervert."«----is true of the approach of courts in to partial invalidity also. i -.

1. R.M.D. Citamarbaughwalla v. Union ofi'.-rdia, A.I.R. 1957 S.C. 628, 636, 637 ; (1957)
S.C.R.. 930.

2. Reference re-Alberta Bill of Rights (1947), A.C. S03 {P.C.). . . . , ._ , _ ,_ '

3. People v. Knapp. (I920) 230 N.Y. 48, referred to in Stern, "Separability and separability SI
Harvard Law Review 76. I'll), footnote 110. .

--- --------r...--.----..--.-...--.'.....-....--.._.......-.. .. - .......w.........-.__..____._-._ .14' 13.7. In the U. S.

A., the broad principles as to divisibility or indivisibility _ewer_e a_t._first 313335 referred to
only in Mr. Justice Sutherland's opinion1 in an early case, and these have gradually USA. "'
ooiueue be accepted by the entire Court. Mr. Justice Butler mentioned them in Champlirr Refin-

v. Corporation Conrmisston," Mr. Justice Roberts relied upon them in the Railroad alter!-érnenr
case,3 and in the Carter case,' even the dissenting Justices seemed to approve of them.

13.8. But the contours of this broad principle are not so well defined, and its practical
Difl1§II1t'0l pa hqation is not very easy. Primarily, this question belongs to the domain of
constitutional 3"' 'flint justilicatiou for adverting to this subject in a discussion of the law of
interpretation arises B'y5rei.son'of the -fact that in-some count.ries, there have come to be
inserted what are known as ""s*epa'nbiiity" or "sevcrability" clauses. _ _ = 13.9. Before
proceeding to discuss the form andecontent of such clauses, it would, be Three sinntium.

_ dcsirah__l_e to mention that the problem of separability arises in three types of situations, ' 'ii
Iii)' Part of the Act is invalid as to all possible applications of the Act,--i.e. as to all possible
areas.
{ii} Whole Act is inyalid, but the invalidity is confined to a part of all possible' "appli- ' cations";
and ' - ' e :

t_»iii)-' Part of the Act is invalid, and that too in relation to only a partlof the "app1ications". - _ .
:_ fliihfl; "Severability" clauses, broadly speaking, provide that if any part of the Actis found , to
be_;invalid, the remainder of the Act should nevertheless be upheld. As has been pointed but,
:]',u,.,,_ the authority of a court to eliminate the invalid elements and yet to sustain the valid
elements,' are not rfiyiderived from the Legislature, but from powers inherent in the judiciary.
The utility _qf_ ..severability clause lies in its replacing the prwumption which would be
otherwise appli-

' ' t the statute was meant to be indivisible. This presumption is replaced by a'presump-

"favour of severabilityfi As Justice Brandeis stated. in case often cited, such a clause ' "a rule of
construction, which may aid in determining the "legislative intent, "but it is "merely; not an
inexorable command"! ;_ ;;1_ _,;l_1:.A severability clause may be generalin form, in: the sense
that it merely provides Fornpiet nevu- _51jppt,,_e,invalidity of one part of the Act shall not
affect' the rest. Or, the clause could be specific. gfihe qtifiarability clause would, then, refer to the
particular sections of the Act or to those appli- rs! and Special. cations of the Act which the
legislature really intended' to stand alone (in case of a declaration of invalidity of the remainder).
' 3515.12. A few hypothetical examples will illust_1;ate what is stated above. One possible forgo
Exampht _£or_u seyerability clause could be as follows :-- ' - ' ' ""

""'I-'he provisions of Chapter are sever-able, and if any of its provisions or_their-apqpli; 5P9=l31
cations? are held unconstitutional or invalid by a court of competent j ~§lF decision of the court
shall not afiector impair _any_ of the rernaining pt'0_3liSj§1§lS__.:n 3, or "implications-of the
?Arti'cle." . ' - -_ e __ '*" 'iT'Wrttzas»:rv. Standard once. (1929) 213 vs. 235.-. ... . . . _

2. Champltn Refining Co. v. Corporation Commission, (1932) 186 _U.S. 110, 234.

3. Railroad Retirement Board v. Alton R.R. (1935) 295 U.S. 350, 369. '

4. Carter v. Carter Coat Co. (1936) 298 U.S. 238, 312, 321-", 34. '

5. Wr'I£z'a.-rr v. Srnrrdurrf oz: Co., (1929) 73 l_.awyers es. 23:5-' J ' E. Dorchy v. State ofK-
unsns, (1924) 68 Lawyers Ed. 55.6.

fl 86 A Another possible form is the following :--

General fouls. "If any provision of this Act or the application thereof to any person or tanccs is
held invalid, the invalidity shall not afiect other provisions or app' ' of the Act which can be given
efiect to without the invalid provision or and, to this end, the provisions of this Act are
severable."

Another form would be:

5°°°m '°""" "If any part, section, sentence, or clause of this ordinance shall be adjudged vdd. _ no
efiect, such decision shall not ailect the validity of the remaining ordinance. For the purposes of
this section, expressly considered to be separable."

There is yet another form suggested by a writer' 1--

5909"! 1°11 "It a part of this Act is invalid, all valid parts which are severable from the invalid 1
remain in efiect. If a part of this Act is invalid in one or more of its applications}: part iemains in
effiect in all valid applications that are severable from the irlvlld applications." .

= Pravisign in 13.13. The Australian interpretation Act has this provision". "Every Act
sha11.be:1;ead old I Anita" construed subject to the Constitution, and so as not to exceed the
legislative power of --the ' monwcalth, to the intent that where any enactment thereof would, but
for this Section, have construed as being in excess of that power, it shall nevertheless be a valid
enactment to the mint to which it is an act in excess of that power."

flfiflu 13.13A. This section was first inserted in the (Australian) Acts Interpretation Act in 191). .
- a p The provision was described at the time as being one "mainly directed against the ti:-ctrilu
of 5 ' inseverability". - - _ It was explained, in the course of the second reading speech in the
Senate, es=foIlows,:--- _ "Where a measure deals with a subject as to which legislative power is
divided bergfifn the Commonwealth and the States, and the line of demarcation between theses --
-e- "powers of the Commonwealth and the States has not been completely fiid 7- ,ii it has been
found necessary, in certain cases such as the Navigation A provision, in terms similar to those
appearing in clause 23 of this Bill, ' "I-_3 _ the intention of the legislature not to exceed its
powers and to secure the =-- ' _- i"- of the Bill up to the ofjthcse powers and no further. Such a -
-1 _ .- _ - ' ' :_._;}, if considered, protects the Act in which it appears from being declaredwrliflyi
where any portion of it would, but for this provision, have been capable er ' unconstitutional
construction."

- "The High Court (of Australia) held in 1910 that where the valid and invalid Que' an Act are
inseparable or 'wrapped up in the -same word or expression', the whole._-m1__It .2-3'2" .' , , _
"The argument of inseparabflity was in 1921 used against the Navigation Act in N ' 7 ' -

it "C and Hunter Rive-r7 Sreantrftip Co. Lttiuillld :OtFIa*s v. "the Attaf-fl¢.'f'G¢"8¥'¢l
J'03'~?5li" -' '1 wealth and another'. The fact that the a provision which is now; --- --

rnade -common to "Commonwealth was the reason given why=the argument felled.

' I accordingly, certain sections of the Act were declared to rcrnaitt e.Ecctivc'to the. -~---:"-I 'T _
lirnitdecidedhy--the-court.'-' . - . _ , .

1. Dickerson, Legislative onftins 6195*). run 110. .

2. Section 15A, (Australian) Acts Injufpruaijen mu. 1901-1951. _,

3. la) Boarmakers Care, 11 C.L.R. 1, 54, 55 ; '5 lb) Owners of.S'..S'. Kaiibrir v. Wilson, ll C.L-
IL: 589, "£13. _

4. Newcastle etc. v. .-LG. for the Commonwealth 19 CLR. 35?.

8?

13.14. 'Where a general form1 of severability clause is adopted, there is a practical difiiculty, at
inasmuch as it will be necessary for the court to consider whether the severability clause itself
sgygfgbility applies or not to a particular provision. ¢13'1'°-

'.' It would appear that the utility of such a clause would be very limited ; and however careful
the drafting may be, it may not be easy of application.

13.15. riic form could he more specific. But the use of the specific separability ciaiicc= may
ccoimc-_E§ be open to ohiection, as it would call the attention of critical lawyers to those
provisions of -h 3'} :::°'flmbi§'t;" law which are deemed by the legislature itself to he most
susceptible to constitutional attack. clause. ifitho; it might conceivably make judicial approach
more inclined to held invalid the particular provfiions referred to. At the same time, it may he
more useful than a general severability clause. -

.1116. In the United States, one writer has icmai.-nods that separability p1'OVlslDl1.8.I.tc---
.nl§? r significant only because of their absence. "Like articles of clothing, if they are present, .
attention is paid to them, but if they are absent, they may be missed." .

Conclusion I , 11E 7:-:.~}.:'i , i_li341"i'. We have, on a consideration of various aspects of the

matter as discussed Concl ' : come to the conclusion that there is no need to insert sncha clause in
our General Clauses Act.

_ -.1.-Pure I3. 12. uipru.

' 2. Para13.12, supra.

. 3. Robert Stern. "separability and separability clauses" (1937-38) 5} Harvard Law Review 76,
122.

..i_

2. 3' , K.'---------:-------.._-. .-r FICHINHJI-wen. .i. .1 '9-w7*--

|......

| Section Englilh law I'.'t.i a-,' CHAPTER 14 OFFENCES UNDER SEVERAL ENf'tCTMENTS
. .a:.n-

14.1. In this Chapter we deal with acts or omissions constituting offencesunder e1act=rnm,----
' a matter dealt with in section 26 of the Act, which reads as follows :-- - __ W . V 'E3 or ' _ -

"26. Where an act or omission constitutes an offence under two or more the offender shall be
liable to be prosecuted and punished under either" or these enactments, but shall not be liable to
be punished twice for the same The latter part of the section isimportant, concerned as it is with
several interesting dept- rincsof criminal jurisprudence, including, in particular, auzrefois
convic1'and-'diJfre:§Ji.§»iaaquI1 and the protection against double jeopardy.- The protection
against double jeopardy is in our Constitution', in Article 20(2), which reads as follows:---- ' a 7 '
31' 5 I 'ii'-'T533'! "No person shall be prosecuted and punished for the same offence more than
once."

14-.1A. The fundamental principle of the plea of aufrefois acquit as laid down by the judfil of
England in 179s= and as stated by writers earlier than that date, has been consistently It was thus
stated in 1848 in BRODM'S LEGAL MAXIMS '{ 2nd Edm) 2-57; = ' '1'! '7 ->-1I*>'-

"and this plea is clearly founded on the principle, that no man shall be placed in peril-'41 legal
penalties more than once upon the same acct1sation--nentti'debtf5:'.r pm uno deh'cto." " " '-

The general principle that a man must put twice in peril for the same olience in been held by the
English Courts to be applicable even where the 'previous acquittal or convicting: was in a foreign
oountryi. In 1918, this principle was applied' by the Court of Criminal Arqietll in a case where
the accused, a Belgian Army Otficer, had been acquitted by a Belgian Court tial in a trial held in
Calai.

It may be noted that this principle of the common law was extended by section 33 of k; English
Interpretation Act to statutory oficnces'. ' i There are similar statutory provisions .on the subject
in section 3D'of the (Australian) Afi ' Interpretation Act, 1901 to 1957 and in the Canadian Law'.

14-.1B. Historically, the famous confiict between Henry II and Archihishop Becket' cork a
stitutes a debate regarding double jeopardy. In the Constitution of Clarendon issued by Henry II
in 1164, in Clause II], Henry II proposed that an ecclesiastical clerk who was accused of felony
was first to be brought into the Kiugfs courts to plead to the charge and establish that -In was a
clerk; then, without a trial in the King's courts, he was to be taken by a royal oflieer to Q

1. Article 20(2). - :

2. R. v. VnndercombandAbbati'. (1195), 2Leac|1at p. 120, cited in 13.1-.1'. -.r. Connefly (1954) 2

All at p. 416.

3. R. v. Roche (1775) 1 Leach I34, 164 English Reports 169 (Aoquittal by a Dutch Court in
South Airioal.

4. R. v. Amer, (1913) 13 Criminal Appeal Reports mt. . ' '

5. R. v. Thomas, (1950) 1 King's Bench 26.

6. Section 11, Criminal Code (Canada).

'7. See generally--- '

(a) Pollock and Maitland, History of English Law, Vol. 1, page 439 H ;

(b) Holdsworth, History of English Law, 7th Bdn. (1956), Vol. 1, pp. 615 ff.

.....-_..._..........-.---1--..--_.._......_. ._..

courts for trial, and,if convicted and degraded there', he was to be returned to the King's courts to
be sentenced according to law". Becket had a fundamental objection to' this scheme.

Becket opposed the proposal on the ground that further punishment in the Kinp's Courts would
violate the maxim Nema bis in idfpsum--no man ought to be punished twice for the same '
ottence.-_ '-TIE' continental law'. the concept is referred to as Non Bis in Idem, and has been
traced to", iii flibflon by Justinian.' ' 14.2. In India the rules of criminal process, known to
lawyers as outrefois acquis and autre $l1U'flf_0h fqis convict, find expression in the Code of
Criminal Procedure, and are considered so important :,;1::,t;"'_ _ tbi1'1'a:'s_eparate Chapter was
assigned to them in the Code of 1893. The principle on which the Vicllilh ' 1 'rest is----a 'man
may not be put twice in jeopardypfor the same offence". ' ':1' mm,"

The provision in the Code of Criminal Procedure" is very elaborate. For our present put'.-1
1:IJee.'secti_on 300(1) is of great importance. It reads as follows :--

"3'DDO[1] a person who has once been tried by a Court of competent jurisdiction for an ' ofience
and convicted or acquitted of such ofience shall, while such conviction or 'acquittal remains in
force, not be liable to5be- tried again for the same offence, nor on the same facts for any other
oiience for which a different charge from the one ihade against him might have been made under
sub-section (1) of section 221, or for which he might have been convicted under sub-section (2)
thereof." 5 on us The "provision in section 26 of the General Clauses Act is based on the same
principle. Bil in-notconfined to the situation where there has been a prior proceeding, and would
appear enough to bar simultaneous double prosecution also. -

l-II.'2.A. provision analogous to the 1atter:part':section 26 is to be found in section 71 swam 11_

of the Indian Penal Code also'. We need not discuss it in detail. LP.C.

14.213. Of course, it should be pointed out that section 26 has a positive as well as a negative
Two purl: unfit, The positive or permissive content is in the eprlier part, where there is a liability
to be ':'_'.£,5_'°°'i°"' ' (ed and punished under either of the two enactments, or any of more than
two'enaci:rnents live or prohibitive part is in the latter part of the section, under which thereis
tum- 'to=be punished twice for the same ofience. -We" shall discuss the principle of this _._.. r
'If-I_.3. '_I'he principle that no person shall vexed twice for the same crime was %;lbn1j'l;.Iodson
in Connolly v. n.1=.1=.,a "as one which is firmlyeestablished in our law. but, as. h,s'm.- .
show, is not easyof consistent aipplicajion". What is meant or involved in tflf wqfi""'_the same
crime"? It_is in answer to is'questi_on that so much dificulty has arisen?' and, to quote Lord
Hodson again, "so much at niei1t'hak been entertained down to the present day only in this
country, but in other coui1tries'vihere3 the common law prevails"; - . T __ i .

' 1'. Degradation was a punishment. I ' ' See Richardson and Sayles, The Governance of
Medieval; England from the Conquest to Magna Carta [EC1iJ.'1burgl1, (1963), pp. 239, 306.]

3. See Bnrrkus v. Iflinoie, (1959) 359 us. 121, 154, npte (31:91: 1.). .

4.- (.3 Justinian, o. 43. 21.2 and c. 9, 2,9, quoted in Harwarci nxsarches in International Law
(19351 :9 Agnes- mn Journal of International Law, Supplement p. 431, 602 ; V

(b) Jolowics, Roman Foundations of Modern Law (1957), p. 31 , 94.

5. See Archbold, Criminal Pleadings, etc., (1966) page 122, paragraph 436 and page 130.
pa.ragraph_ #53.

6. Section 300. Code of Criminal Procedure, 19?4.

fr,-seese:_:tion7l,2r1d pa.ra.,I.P.C.. ,

8. Connolly v. D.P.P. (1964) 2 All ER. 401, 428 (I-LL). .-

The classic statement of the principlevis to be found in Hawkins' Peas of the isas follows:

"that a man shall not be brought into danger of his life for one and the same more than once." - ' '
"From whence it is generally taken, byall the books, as an undoubted that where a man is once
found 'not guilty' on an indictment or appeal free from error, its! well commenced before "any
court which hath jurisdiction of the cause, he may, by fin.-030%; law, in all cases whatsoever,
plead such acquittal in bar of any subsequent for the same crime". This lucid statement by
Hawkins, has never excelled, though it 3 often elaborated'.

.;' fl"'**'- d. 14.4. In order to constitute the "same crime", the essential ingredients should be the
lit the "Iii-' " ' In E. v. Kupferbergifl for example, an acquiflal on a charge of conspiring to
contravene a re , lation was held not to found a-plea of autrefois acquit on a charge of aiding and
ahetfingu Y": contravention. A. T. Lawrence, J. said : - - W e "For a plea of autrefois acquit to be
rnaintainahle, the offence of which has been acquitted and. that with which he is charged. must
be I sense that each must have tIie;samc cs.-:enn'al i'ngrcdient.s4. The facts which cflfr stitute the
one must he suflioieut to justify a conviction for the other."

14.5. The statement of the law by Hawkins' was approved in D.P.P. v. Casually'. with this
comment : e ' "The phrases 'the same essential ingredients' and 'the facts which constitute' it to be
noted. They denote and, in iiijvview, correctly denote an tion from that which merely that the
same _facts rnay bc.teiesun1-ilzjfii of two charges, or.that some evidence which is given in one
case may bi given as being relevant in another." a -- - - 'I A conviction or acquittal, then, bars
punishment for the "same offence".

_,,,_ 14.6. The Constitution, Artic1e,20(2)7, does not. in terms, mention it , ¢,,"3,,"',;,°"£,,}};°,,
but the Code of Criminal Procedure doesfiand the. Code goes on to captain in _ Pi'ocedII'I. '
implications of the expression 'same offence'. Six illustrations form part of this j, ' ' plaining, in
concrete form, the different situations which the Courts rnav have to "

"I," - 14.6A. Going back to' section 26, we may note that the section presents a.nu_nibpr ii in
ambiguities. Is it, for example, penni.-isihle-to prosecute a person under all the ' 1151 is to say---
-to frame a charge for ofthe ofiences? It is usually understoodrpfinti charge can be framed for
each of the ofi+=:nr.-es,---sub]ect to the provision regarding .2 } ptmishmetlt. However
ambiguity in this regard is caused by the words.."eith'e_r or. I -_ = the earlier part of the section".
The 8-mbi£l1ltY--'l5h°"3h 3 Sliflht ,7 whether the limit regarding punishment applies at the
same prosecution, or whether @ - A . - » I * 1 - ---- ' ' to successive prosecutions, or whether it
applies to both. The word twice. is "'3, Hawkins, Pleas of the Crown [ism nan. (ism-voi. 2, p.
515] citedin Carmel} v. om-. om) 1'-.«i:n;n_.?

401, 428 (H.L-)- , 2, E.g. Miles (1390) 24 one. 423, 43}; tH.In1dm'1-lo =: -q . ' ' _ E, v,
Kupferberg. (1918) 13 ct. Appjksp. 1$,' lfl'quoted in Cantrell): 7. D.P.P.-(196432 'AI'-Isl'. H1,--
415.: Emphasis supplied. ; I . Para. 14. 3. NIPFE . _ . D.P.P. v. Connolly, (1964) 2 5" W-Pu 401.
433'(H4L-I ' "» . Para.14.2.5P4Pm- _ . '_ - .2 _ Section 300, Code of Criminal Procedure, 19?4
{and corresponding provision-lathe 139! 9_ mg ggction is quoted in para. 14.1, supra. ' '.03 E7.

OO-.ld'tUI-_b-

91-

whether multiple punishment. is possible. Ambiguity in this regard is created by the phrase
"furnished twice". In one of the Andhra Pradesh cases----In re Bapaniaffl decided under the
section. it has been stated : -

"It is left to the prosecutor or the authority concerned to choose under which enactment or
enactments an ofiender shall be prosecuted when the act or, omission alleged against him
constitutes an ofience under two or more enactments. But in the event of the prosecution being
launched under two or more enactments, the punishment should be under one alone of those
enactments." The point was also advertcd to in a judgment of the Supreme Court- Balirh V.
Bangachariz. A consideration of the section in some detail would, therefore, be useful with
reference to the problems that have arisen.

14.7. It may be stated that these three ambiguities3 are really facets of the obscurity which exists
on the major question whether prosecution and punishment under both the enactments are
permissible.

In this context, two situations have to be considered separately'. The first situation is where an
act made by, two more statutory provisions ("enactments"), really constitutes the "same
olfence",----Here, though the legal labels given to the offences are different, the ingredients
thereof are indcntical-'. It is by reason of the accidents of legislation that the act happens to fall
under two or more enactmcntsfi. Such cases, though infrequent, can arise because of the fact that
one aspect of the act is dealt with more prominently in one enactment, while another aspect is
given prominence by another enactment. Essentially, there is only one culpable act; and, though
different legal labels lead to two or more "offences", the offender should not re- ceise
puifishment for more than one of them. They are not distinct.

he considered stitutills 31¢ Elma i4.8. The second situation' is where acts made penal by two or
more statutory provisions (ii) Acts consti- '{"enact1pents") constitute really distinct offences.
Some of the ingredients are common, but ':j;"s"§y'"r:';'§:; of they not altogether identicals. The
offences being distinct, it is logical to permit separate difference it-_-tin- punishments. At the
same time, to avoid oppressiveness", the aggregate of such punishments g'°di'""' II should flat
exceed the maximum prescribed for the most serious of the offences of which -the 7 olfettderis
convicted. . - :3-

If a provision could be framed on the above lines, it would be just in its substance, and more
clirar in its form than the present section. 3 shall make our recommendation on this basis attgthe
appropriate place". But we would like to explain in some detail the significance of the twin
situations referred to above.

Separate sub-sections desirable.

14.9. At this stage, we may state that in order to make the provision in section 26 more clear,
itfiis desirable to deal in separate sub--sections with the general rule and the rule applicable to":
situation. The general principle should be that Where an act or omission is made punishuile
under two or more enactments. the offender shall be liable to be punished under

1. re Bapaniair. A.I.R. I970 AJ'. 47, 55, paragraph 13(Ven1tateswara R/ac J.}.

1. Qaliah v. Rortgacirari, A.I.R. i969 SEC. T01; para. 14.15, irgfla.

. 3. Earn. 14.6, supra.

' 4. fl 42nd Report {Penal Code). page 75, para 3.72, (discussing section 7], Penal Code).

' 5. ca) Cf. Emp.V.B.lIt3gI'It1.l, ma. 1931 Born. 4952 ; i

(b) Durga Charon v. Isstitussin. A.l.R. 1948 Cal. 6, T, {Wrongful confinement for purpose of
extortion- sections 347' and 384, I.P.C.). '

6. See also (a) Buffet}: 1-'. Rangachari, A.I.R. 1969 S.C. T01 ;

(b) Han' V. State of Maharashtra, 73 Born. LR. E91.

7. See 42nd Report, page 76, para. 3.73, and also page 422, proposed section 36.
3. See illustrative ease in para. 14.10, infra. \

9. See, in particular, para. 14.12, irrfla.

ll). Para. 14.18 thfra.

15 M of ]'saw!'i'4«-13 Two situations to i

ii) A-ctua|1y_ c.o_n~ cfience. , ~ _---,_r.;_ -- -

case-law.

-j-----.«-r-....«.........'.......... . .

any one, but not under more than one, of those enactments', if the ingredients are identifical. As
regards the special situation, namely, where the same act or omission constituting an ofienoe
under any other enactment or enactments, in conjunction with any ingredient or ingredients the
rule should be that prosecution and punishment for each of such offences is permissible, but the
aggregate of the punishments is not to exceed the punishment awardable for the most serious the
offences.

In practice, most cases would fall under the special situation, and the object of making the
position clear as regards this special situation is that if cumulative punishments were without any
limitation as to the quantum in the aggregate, there will be hardship and oppres-

sion.

The matter could be illustrated from a few decided eases.

14.10. Under the Opium Act, for example, possession of opium and transport or fliufl (contrary
to the provisions of the Act or any other enactment relating to opium or contrary to rules trained
under the Act), are two separate offences. Mere possession of opium may on t the proved facts of
a particular case, involve any question of transporting it. If_'so,,_ _ only one offence. Similarly,
the transport of opium may not include the element If I i in every case. A person may transport
opium through" various agencies, and yet not _ possession of it at the time it was transported. In
such a case, there is only one ofiencef person may transport opium, and also he in possession of
it. In such a case, that "person woulill be guilty of two ofIences,--rransporting opium, and being
in possession of hi. But justice that the punishment for the two ofiences should not exceed that
prescribed for the higher of two offences, because the ofiences are nearly the same, though not
identieai, and it would be oppressive if the aggregate punishment exceeds the maximum
punishment for them.

14.11. In this connection, we may also refer to the important Supreme Court case State of
Bombay v. S. L. Aptei'. The charge in that case was under section 405, I.P.C.4 and s_.- 105,
Insurance Act. The Court regarded the two offences as distinct. The analysis by the may be
quoted---
"(1) Whereas under section 405 of the Indian Penal Code the accused must he 'on-

trusted' with property or with "dominion over that property", underjsectim:-105, of the Insurance
Act the entrustrnent of dominion over property is urmecessagy; it is sufiicient if the manager,
director etc- "obtains possession" of the (2) The ofience of criminal breach of trust {section 405
of the Indian Penal Code) is not committed unless the act of misappropriation or conversion or
"the in violation of the law or contract", is done with a dishonest intention; but section 105 of the
Insurance Act postulates no intention, and punishes as an oflerrce the more withholding of the
property----wha_tever be the intent with which the pain: is done; and the act of application of the
property of an insurer to purposes other than those authorised by the Act is similarly punishable
without reference to any intent with which application or rnisapplication is made. In
these,ci,r_::um-- stances, it does not seem possible to say that the offence of crirninitl of trust
under the Indian Penal Code is the "same offence" for which; the rigou- dents were prosecuted
on the complaint of the company "charging themwith an offence under section 105 of the
Insurance Act."

I. This does not rule out separate heads of charges, for clarity.

2. See discussion in Purnnmai 1:. Store of Orin-a,'A.I.R. 1958 S.C. 3-36.

3. Stars of Bombay. v. S.L. Apre, A.I.R. 196138.-C. 578, 58l,"parI.[l3.

4. Section 405, l.P.C.--Criminal breach of trust.

14,12. There is another Supreme Court case, Roshan Lat v. State of Pun}'ab,* which is relevant
to this point. When a person causes the evidence of the two ofiences under sections
S,,c,,,,,,"'j'§§3' 330 and 348, Penal Code to disappear, by burning the body of a person alleged to
have been and 345;1«P-C- tortured, does he commit two separate ofiences under section 201 of
that Code ? This was the iv question dealt with by the Supreme Court, which held : I "Now, by
the same act, namely burning of the dead body of Raja Ram, the appellant causes the evidence of
two offences to disappear.

"Taking a strict view of the matter, it must be said that by the same act the appellants committed
the offences under section 201. The case is not covered either by section 71 of the Indian Penal
Code or by section 26 of the General Clauses sections. But, normally, no court should award two
separate punishments for Act, and the punishment for the two ofiences cannot be limited under
those the same act constituting two ofiences under section 201. The appropriate sentence under
section 201 for causing the evidence of the oflences under section ' ._ 330 to disappear should be
passed, and no separate sentence need be passed i " 33* under section 201 for causing the
evidence of the offence under section 3,48 to I disappear."

' This case emphasises the aspect of oppression-

14.13. The absence of the requirement of "same offence" is illustrated by a Mysore case, Gandigf
v. State of Mysore? The appellant in both the appeals was the same person. He had Mygorg ¢..,._
"been j_ victed under section 161, Indian Penal Code of having accepted a bribe of Rs. 250,f~
i°l§l"'£n'fi1» l and se enced to fine and iniprisonrnent. He was' also {at a subsequent trial] tried
for the offence ,.',._-,'¢i.;.n 5, ofcriniinal misconduct as defined in section 5 of the Prevention of
Corruption Act, 1947 and P°1"'1'C°d'- convicted under section 5 of the Act, and sentenced to
fine and irnprisoninent The Special Judge ad ordered that the sentence, of imprisonment on the
second conviction should run con- curren {y with the earlier. This was an appeal against this
conviction and sentence.

.. . .

_ It was urged by counsel for the appellant that since the accused was convicted under section
161, I.P.C. for the acceptance of the bribe of Rs. 250}, he could not again be convic-

-rta. ted or section 5 of the Prevention of Corruption Act. Reliance was placed in support of this
at ent on section 26 of the General Clauses Act and on '.Article 20(2) of the Constitu- tion. - e
argument was rejected, and it was held by the Mysore High Court that the "prohi- bition is not
against punishment more than once, for different ofiences". In that connection, ' the court added :

'The offence punishable under section 161 of the Indian Penal Code is different trom the :
offence of criminal misconduct punishable under section 5(2) of Prevention of Corruption Act, l
- though it may be that some of the ingrediertrs of these two oflences are common".

Following a Supreme Court case,' the High Court held that the offence created by section 5 of
the Prevention of Corruption Act was "an olfence unknown to any of the provisions of the Indian
;Pena1 Code dealing with bribery or corruption." Therefore, the offence under section 5(1](d)
was quite distinct from the offence under section 161, I-P.C. And, since they were dis- tinct
ofiences, section 26 of the General Clauses Act, was held not to apply-

i 011 this reasoning, conviction under s. 5 was upheld.

1. Roshan La! v. State afPrmjab, A.I.R. 1965 3.13. 1413, para. l5.

2.. Gandhi. V. State ofilrfysore, A.I.R. 1950 Mys. lll (D.B.).

3. Venkataramun v. The State, A.I.R. 1959 S.C. 107.

A case of simultaneous prosecution.

Object of amendment.

Conclusion and recommendation.

14-14. It may be pointed out that this Mysore case would fall within the second category' of
offences which, being not the some but being distinct, could be punished separately. In-this case,
for the conviction under section 161, LP.-C. (which provides for imprisonment of either
description upto 3 years or fine or both), the accused had been sentenced to one year's:r_Ip- rous
imprisonment and a fine of Rs. 5,000}. On the conviction under section 5(2) -o£- nip Prevention
of Corruption Act (which provides for imprisonment of upto 7 years and fine), he' had been
sentenced to one years rigorous imprisonment and a fine of Rs. 75,DOUf--. Therefiore, the
aggregate did not exceed the punishment that could be awarded for any one of such _ ofiences.

14.15. In Baliah V. Rangacitarir' the Supreme Court was concerned with simultaneous
prosecution. The precise question was whether the appellant could be prosecuted both under
section 177, Indian Penal Code {False information to public servant) and section 52 of the
Income Tax Act," 1922 (which was in force at the material time) at the some time. It was argued
on behalf of the appellant that in view of the provisions of section 26 of the Gmeral Clauses Act,
the appellant could be prosecuted either under section 52 of the 1922 Act, or under section 1?7,
Indian Penal Code, but not under both the sections at the some time. The court was unable to
accept this argument as correct. After quoting section 26, the Court" observed :

"A plain reading of the section shows that there is no bar to the trial or conviction of the offender
under both enactments, but there is only a bar to the punishment of the offender twice for the
same ofience. In other words, the section provides that where an act or omission constitutes an
offence under two enactments, the offender may be prosecuted and punished under either or both
the enaetngents but shall not be liable to be punished twice for the same offence. We accord-
inglv reject the argument of the appellant on this aspect of the case."

14.16. The amendment which we propose to recommend in section 26 is intended to clarify the
position on the important points discussed above. As already stated,' it is desir- able to deal
separately with two situatlons--first where the ingredients of the two ofienoes are the same, and
secondly where. the ingredients are not identical.

14.17. In conclusion, we wish to add that we have given serious consideration to the problems
posed by the present form and language of section 26, and have decided to recormnend an
amendment with a view to avoiding ambiguity or obscurity and making the position in respect of
ofiences falling under the two situations to which we have referred. The anfind-._ ment will, we
hope, advance the cause of justice by ensuring that even if the case falls under the second
situation, there will be a safeguard against oppression.

In the light of the above discussion, we recommend that section 26 should be revised as under:

Revised section 26 (1) Where an act or omission is made punishable under two or more
enaetment_I,§ the uofiender shall, subject to the provisions of sub-section (2),5 be liable to be
punished one, but not under more than one, of those enactments. -

1. Para. 14.7 and 14.3 supra.

2. Baliah v. Raugachari, A.I.R. 1959 S.C. 101, 706, para. 6.

3. Section 52, Income Tax Act, 1922---Fa1se verification in a statement of income.

4. Paras. 14.7 to 14.9 supra. '-

5. In the alternative, the words "and the ofieuces are not distinct" could be used in'sub-5'=?t1'0n f
1) instead of 31% words "subject to the provisions of subsection (2 ". ' *5 V1 '.

(2) Where fa) an act or omission constitutes an offence under one enactment, and

(b) the same act or omission, in conitmction with any other ingredient or ingredients, constitutes
an offence under any other enactment or enactments, then the offender may be prosecuted and
punished for each of such offences, but the aggregate of the puntlrhments shall not exceed the
punishment which could have been awarded for the most serious of the oflences.

?.-\-

CHAPTER 15 MISCELLANEOUS Iulroductorr 15.1 The last 6 sections of the Act.--Sections 25

to 3D----contain miscellaneous prorvisions._ - Some of these--e.g. sections 26 and 27--are,
however, of frequent application, and therefore, I of suflicient practical interest.

15.2. Section 25 provides for the recovery of fines. The section refers, inter aiia, to sections 63--
7O of the Indian Penal Code. The Law Commission, in its Report on the Indim Penal Code,1
considered these sections of the Code. The recommendations of the Law Commimicn regarding
these sections do not, however, require any substantial change in section 25 of III:

General Clauses Act.

Section 25.

I:fi:"g';§'§'.Ei_" 15.3. The procedure for the recovery of fines is dealt with in section 386 of the?
Criminal Procedure Code of 1898. The Law Commission, in its Report on the Criminal
Procedure Code', has dealt with this section. But the recommendations made in that Report also
do not necessi-

tate any change in the General Clauses Act. "3 Recorramendation 15.4. The only change required
in this section is verbal, namely, in place of reference to 35'°~'-¢°"°fl 35- the old Code of
Criminal Procedure, the reference to the current Code should be substituted.

15.5. Section 26 has already been dealt with'.

'-1-wgumbwf 156. Section 27, which relates to service by post, consists of two limbs, dealing
respecu- |°<=fi°112'r'- vely with the mode of service and with the time of service. Under the first
limb of the section, _ for the purposes of an Act authorising or requiring a document to be served
by post, service - shall be deemed to he efiected by properly addressing, pre.-paying and posting
by registered' -'I post a letter containing the document. This deeming provision, of course,
applied unless I. diiferent intention appears. But there is no express saving {or cases where the
contrary is proved.' Under the second limb of the section, the service shall be deemed to have
been efiected as . the time at which the letter would be delivered in the ordinary course of post.
This deeming provision applies, unless the contrary is proved, and unless a difierent intention
appears from :;;;.; -' ' the context. .
2" .

section 114 15.7. Although the presumption under section 27, General Clauses Act,' can arise
only H E"l'3"1°'*"°'~ when the notice is sent by registered post, there may arise a presumption
undefsection 114, Evidence Act, when notice is sent by ordinary post." But the presumption so
arising is rebut- table.

1. 42nd Report, pages 66-68. _

2. See now the corresponding provision in the Code of 1974. 1 -

3. 41st Report, Vol. 1, pages 243-245. I

4. Chapter 14, supra.

5. See pare 15.9 infra.

. para 15.6, supra.

. Section 114, illustration Cl'. Evidence Act.

---...=-,»,.i. ._.-_....,_....» -a-vw - 4-~ . .. y_.._.w._... _,_,_ _.__'f. -.-w.a»-.-.- , --ll' -.,. '-. ..... . -1-1
-.-1 . _ ' -'-"no-------', - - - ..---.-.... «._...--g----..»._......-..n. .--. ----- ----»-.-

97 1 2 15.3. Reference should also be made to section 106 of the Transfer of Property Act.
01131! 5 H Eh.' Under that section, the lessor can determine the lease by a notice to quit, and one
of the modes ggc1'[)n'[{fi~ir_;i;3{- ] -- of service of such notice is sending it by post to the party
intended to be bound by it- There T-P-5 are similar provisions in certain other Central Act.

15.9. Now, it is obvious that though the first limb of section 27 of the General Clauses Act is not
expressed to be subject to proof to the contrary,' it is intended to be so. It is not as

- i1 evidence in rebuttal of the presumption given in the section could be given only as to the
second limb (the time at which the letter is deemed to have been delivered), and not as to the
main presumption of service. Unfortunately. however, the section does not say so; and though it
seems to have been assumed in a decided case,' it is desirable to make the section, in its _;' firs!
limb, subject to proof to the contrary.

, 15.10. If {as is suggested above], the deeming provision in section 27 is subject to evi-
$Jti§tf't=g"§Js1e1¢"' dance to the contrary in both cases,' it would also be desirable to replace the
words "deemed" n1.-,w.;..-as "shag by the usual formula "shall be presumed". That formula is
more appropriate for indicating iiepreumned."

a that the presumption is rcbuttable.

"':";i"
F 15.11. Controversies also arise as to whether proof of this or that fact is suflicient to rebut Ca.-
sclawasto the presumption under section 27. Some of the cases relating to the rebuttal of the
presu1np- fiwfiefirwf tion are noted in the footnote.' It may not, however, be convenient to lay
down any detailed rules in this regard. -

15.12. It seems to have assumed that section 2'1' applies to statutory instruments. This (ii3_F-
ewlnmrn :-; danontoeover .j instruments.

_ presumption referred to in section 27 of the General Clauses Act or in section 114, illustration
E . (fl, Evidence Act, or both? On this point, there seems to be a conflict of decisions.

I.

One view is that the presumption under section 114. Evidence Act can be drawn," in case
qfgrefusal by the addressee.

-it T Another view that even section 27, General Clauses Act, applies in such case.' The third
view is that neither section 114 nor section 27 applies." The ease-law is reviewed in a Madras
case,' and in a Calcutta case." -

1. Sec, para 15.6, supra. _

2. Jcmkiram Nafdu v. Arunugira (1970) 1 M.L.I. 535, 538.

3. Sec. para 15.9, supra.

4. Cf. sections 3 and 4, Evidence Act.

-' x 5. (9.) Sarkar Estates Pvt. Ltd. v. P'.K. Iron works Ltd. A.I.I-1. 1961 Cal. 439, 442, para 3-4
(Refusal to accept)

(b) Sukumar v. Na:-ssh Cfiamfra, A.I.R. 1968 Cal. 49;

(c) (1970) All LJ. 455.

6. Garza Ram v. Dhuiwari, A.I.R. 1970 All. 446, 450, 451. para 23-25 (and the Calcutta, Punjab
and Madras cases cited therein).

1 7. (a) Dwarka Singh v. Koran SE1-13.1: (1969) All LJ. 549; 7 (13) Bachalal v. Lacbmcm,
A.I.R. 1938 A11. 333.

3. 13.} Vamwr Wrfiai V. Khandzrao, A.1'.R. 1935 Born. 247; (lb) Jankfram v. Damadar. A.I.R.
1956 Nag. 266.

9. B'app;:_}'y.::r V. Venkatarahan, A.]'.R. 1953 Mad. B34, 837. para 9 to 13 (Rajamannar CJ.
and Venlratarama Airar J.)
10. N1'rmn{Ba1'a v. Provo: Kumar, (1943) 52 C.V'\'.N. 619 'V-I-Ice 'VI-

....-..

shield be expressly provided for. - an mum." E-_E _ " E 15.13. When a registered letter is
refused by the. addressee, is it permissible to draw the $'3x§"£f'-531"' I "aim:-any-use:-u-in-u-vs-
.. V Reconnnendation to remove oonflict.

Section 28(1).

Section 29.

1514. It is obviously desirable that this conflict should be resolved. The presumption under
section 114, Evidence Act, should, in our view, continue to be permissible; but, section 27,
General Clauses Act, should not apply in, case of refusal by the addressee. It is better to leave the
court free to draw or no-t to draw the presumption, where the letter has been re-

fused.

For the above purpose we recommend an amendment of section 27 as follows 1- Revised section
27 27(1). Where any Central Act or Regulation made after the commencement of this Act or any
statutory instrument made thereunder authorises or requires any document to be served by post,
whether the expression "serve" or either of the expressions "give" or "send" or anyiothor
expression is used, then, unless a different intention appears, and unless the contrary is proved,
the service shall be deemed-- ' '

(a) to be effected by properly addressing, pre-paying and posting by registered post, 3 letter
containing the document, and .

(hi to have been effected at the time at which the letter would be delivered in the ordinary course
of post.

(2) "Nothing in sub--secrion (1) shall apply to a letter, which the addressee has rbfufl to accept
but in such cases it shall be open to the Court to draw or not to draw any such presump- tion as it
may think fit to draw under Section 114 of the Indian Evidence Act, 1872, having regard to the
circumstances of the case."

15.15. Under section 28(1), "in any Central Act or Regulation, and in any rule, bye-law,
instrument or document, made under, or with reference to, any such Act or Regulation", any
actment may be cited [toy reference to the title or short title (if any) conferred thereon or by'
reference to the number and year thereof. There is also a provision as to citation of a provision of
an enactment.

The sub--section can be usefully extended to statutory instruments.

For the above purpose, we recommend that section 28(1) should be revised as below-
Revised section 28(1) "{1} In any Central Act or Regulation, and in any statutory instrument, or
document. made under. or with reference to, any such Act or Regu1ation--

any enactment may be cited by reference to the title or short title (if any) conferred (ail Lhreon or
by reference to the number and year thereof. and

(h) section of the enactment in which the provision is contained."

15.16. Section 29 contains savings for previous enactments, rules and bye-laws. It needs no
change.

- -v----q-----o--u--~-u-Iu-------1.-~-------»..r . ---- ----- -- -7 any provision in an enactment may be

cited by reference to the section or sub--_ if-......,.... ... ' 15.11 We remmmend the insertion of a
new section to provide that the provisions of this ggggon 295 Act (as amended respecting the
construction of new Central Acts etc.) shall not affect the Swmyfm. construction of existing
Central Acts. It will be on the following lines :--- ;=|1111t:'-'E9133 ame Section 29.4 (New)
29A. The provisions of this Act respecting the construction of Central Acts or Regulation made
on or afterthe . . . . . . . . . . ..day of . . . . . . . . . . . . . . ..1 shalt not affect the construction
madebefm-3 of any Central Act or Regulation made before that date, although the Central Act or
Regulation Bmfifldmfllt is continued or amended by any Central Act or Regulation made on or
after that date.

15.13. Section 30 provides that the expression "Central Act", wherever it occurs in this Section
30. Act, shall be deemed to include an Ordinance made and promulgated by the President.

_ An exception is made in respect of section 5 of the Act (which deals with commencement). In
addition to this. an exception for the new section which we are recommending" regarding the
expiry of temporary Acts, is required".

Section 30 also provides that the word "Act" in certain specified provisions, includes the
Ordinances referred to above. No change appears to be required in this part of the section.

In the light of the above discussion we recommend that section 30 should be amended as
under'*:----

Section 30 In section 30 of the principal Act, after the word and figure "section 5", the words,
figure andjetter "and section 8 " shall be inserted."

We would like to place on record our warm appreciation of the valuable assistance we have
received from Mr. Bakshi, Member-Secretary of the Commission in the preparation of this
Report.

P. B. Gajentlragadlrar Chairman P. K. Tripatlii Member E S. S. -Dhavan _ Member S. P. Sen-

Vanna Member P' M' Bakshi Member-Secretarv W..: New Delhi till 20th May. 1974.

1. Date of ooinmenoement er 'a'r|1t:ndmcnt Act to be aunties.

,, E 3. _5eel:ion 3:'\ (new).

' is 3. Sec discussion relathig to section sis, Chapter Tamra. ;

'3' LI 4. This is consequential on new section SA.

5. Soctionzrefulenen in-this umantlmnrrt (referring to auto: or in numbering.

15 M of 1..t'l'l'74--14 should be checked up at-, 5, ,, gang, . _r .3 s I

-'<I! .....«sa.s.-.- . - -

REPORT 03"» GENERAL CLA USES A(""

APPENDIX Proposals as shown in the form of draft amendments to the existing Ac:'--'. Nose :
This is a tentative draft only.

Section. 3, opening lines [ch. 3] in section 3, before the words, "In this Act", the words, figure
and letter "Subject to the provisions of section 3A", shall be inserted-'*.

Reviseci section 3(3) [ch. 3] (3) "afl'idavit" shall mean a statement in writing purporting to be a
statement of facts, signed by the person marking it and confirmed by him by oath." ' ' (SA)
"aircraft" shall mean any rnacliine which can derive support in the atmospnerefrom I reactions of
the air, and shall include balloons, whether fixed or free, oirships, kites, glitters flying machines.

l ' Section 3(1DA) (Now) i r Ich. 3] After clause (10), the following sub-section shall be inserted,
namely :--. "(10A) 'clause' shall mean.------

(a) a subdivision of the sub-section in which the word occurs, or (b] where there is no sub-
section in the section, a subdivision of the section in which the word occurs.

Revised section 3(11) , lich. 31 3(ll) "Collector" shall mean........ .the chief ofiicer-in-charge of
the revonlfi = administration of a district, anal shall include the Collector of Calcutta, Madras or
Bombay:

Revised section 3 ( 16) _ [ch 31 3:116) "Consular Uflicer" shall mean any person entrusted with
the exercise of functions, irrespective of his designation and shall include Consul General,
Consul. Vice Consul and Consular Agent :

Section 3(16A) (New) - ~ [ch. 3] (IGA) "ciaugliter", in the ease of any one whose personal law
permits adoption, Slllisilliilielfifi an adopted daughter':

3""'°" 3l_§§3).,"'lE"') ' . .. , , (16B) "day" shall mean a period of lzpurs l I "'" . .. . . -. .. .

.' . ' Lia) The amendments tegasdmg definitions will apply to_ existing _Ac_ts, unleis
ot|!t.:l'wia£'in§lr;II|:odl;
- In tliecaseofa few definitions intendedto be prospective only, 1t_1s nooessosy to 1ns_ert_ g = .
new section to indicate that they are prospective. 'Si-.e'pe1'oposed section l (b) As regards
amendments in provisions, other than d;eljniti,ons,Ithe,_a,mendnyp111s will an-ply_ to ' - Acts,
unless othersise indicated. " ' ' ' ' '

- ' 2. The refg:j.r_enoe_ in the margin in.;ec_t_a.;;gu1ar bgackztn indicate the religion! engage;
in the 1:39;; . _-

l 3. See"newséctio1i_'3A. ' I 4 .. -- ' ' ' '"-

4. This amendment should not apply to existing Acts. See section 3A (proposed).

::

Section 3 ( 16C) (-New) (MC) "a'iplomatic ofiFicer" shall mean a member of the stat? of a
diplomatic mission having utiipiomnric rank, and includes an or.-'tbttrsador, high commissioner,
envoy', minister and charg-

tt'aHai.r.r :

Rctfiscd section 3 (I7) (17). "District Judge" shall mean the Judge of a principal Civil Court of
original jurisdiction, (ch, but shall not include --

(a) an Additional Judge of such court, or

(b) the High Court in the exercise of its ordinary or extra-ordinary civil jurisdiction.

Revised section 3(18) "document" shall include any sitbstancc having any matter written,
expressed, irtscribéff I [l_'|1_ described or otherwise rec-orcied upon it by means of letters,
figures or marks or by any other means, or by more than one of these means, which are intended
to be used or which may be used for the purpose of recording that matter.

Exp-ianation.--tt is immaterial by what means the letters, figures or marks are formed."

Reviseti section 3 ( 19) 3(19) "enactnte2nt" shall i'r-tclutie any iaw p:;L:'.'.sctI or made by any
lcgis'iaittt'e or other attiit0- [eh.

rity acting in a legislative capacity, and shall also include any provision contained in any such
law, him shall not include a statutory instrument :

Revised section 3 1' 25) 3(25) "High Court", used with reference to civil or crirninal
proceedings, shall mean thetch. High Court or the Court of Jtniicial Commisioner having
jurisdiction over the part of India in which the Act or Regulation containing the expression
operates ;"
Revised section 3 {.3 1) 3(3I) "local authority" shall mean a mmticipai corporation or committee,
a district board, gm a. Cantonment board or a body of port commissioners, or any other authority
constituted for the 'put'p0Be of local self-g-overnment or village administration ;

Section 3(35}--~--definition of 'month' In section 3(35J, for the word "British", the word
"Gregorian" shall be substituted.

Revised section H37) '13?) 'oath' snail mean an oath taken before a competent autiioriry with
reference to ri1e[¢h_ Oatttnldct, 1969, or any other law for the time being in force, and shall, in
the case of persons by law allowed to affirm or declare instead of swearing; include affinnation
or declaration marie before a competent authority with reference to that Act or law.

Section 3(43A) (New) 3i(4-3-A) "prescribed" shall mean prescribed by ruies made under the
Central Act or Rega- [ch lotion in which the word occurs;

Section 3(47A) (New) 3g_{4"t'A)'-'public" snail include any class or section of the public,'- 15-H
.[.awi'i4--15 lch.

3| 3 I

3| 3] 3] 3] Section 3(60A) (New) 3(60A) "statutor_v instrument" shall mean a rate, notification,
bye-law, order, scheme, [ch. 3] _ form or other instrument made under an enactment ;

Section 3(62A) ( New) [ch 3] 3(62A) "temporary Act" or "teniporar}' Regulation" shall mean a
Central Act or Regula- _ tion, whether made before or after the commencement of the
Constitution, which is to cease to have effect or cease to operate on a particular clay or on the
expiration of a particular period or on the happening of a particular event; ' [Existing section
3{62A) to be renumbered as section 3{ 62)] A Revised' section 3{66) lch. 3| 3066) "year" shall
mean a year reckoned according to the Gregorian calendar.

Section 3A (New) 3A. The definitions in section 3 of the following words and expressions, that
is to Mar,' 1 ti) "daughter", It do not apply to----

(a) this Act so far as it reiates to the period before the ............. ..day" of ............. .. 01' lb) to any
Central Act or Regulation made before the . . . . . . . . . . ..day" of . . . . .. . . . . . . . . . ., 1974.

Section 4B (New) [ch. 31 After section 4A, the following section shall be inserted, name1}":--

"4B.- in every Central Act or Regulation, made on or after . . . . . . . . . . . . . . . . . . . . . . . . ..day

of....................', where a word is defined, ! ' .

i l _ ta) the word shall have the meaning assigned by the definition, unless the context otherwise
requires ; -

pending meanings, unless the context otherwise requires.

Revised section 55

(i) in the case of a Central Act made before the commencement of the ' on the day on which it
receives the assent of the Govemor-General:

of the President.

- List to be given.

. Date of commencement of amended Act to be entered.

. Date of commencement of amending Act to be entered. 7

-3'--L.al~.J\--I' S l I I i _ Date of commencement of amending Act.

. The revised sub-section (3) will agply to _existing Act also. ' Ur

(b) grammatical variations of that word and its cognate expressions shall have corres-

lch. 31 _ , , Comin into "S. (1) Where any Central Act 13 not expressed to «come into force on a
particular _day._ f:n";,2nflj"_ then it shall come into torce----- T :5' *

(ii) in the case of an Act. of Parliament, on the day on which it receives 'the gr.-..-.---m.-m ..»w--
.....__ "__W_ ,. ..

E us "(ll Where an Ordinance promulgated or Regulation made by the President on 0? fllffif the .
. . . . . . . . . . . . . . . . . . . . ..day of . . . . . . . . . . . . . . ..,1 is not expressed to come into force on a
particular day, then it shall come into force on the day on which the Ordinance is promulgated or
the Regulation is made, as the case may be.

_ , (31 Unless the contrary intention is expressed, every Central Act, Ordinance, or'Regulation or
provision thereof shall be construed as coming into force immediately on expiration of the d.a,y..
preceding the beginning of the day on which it comes into force.

. 1,4) The date appearing on the copy of a Central Act printed by or under the authority of the
Central Government innnediately after its title shall be evidence that such date is the date on
which the Governor-General or the President, as the case may he. gave his assent."

Section 5--A (New) .3-A. The marginal note appended to any provision of any Central Act or
Regulation, and reference to the number and year of any foriner law in the margin against any
such provision,--

( a) shall form no part of the said Central Act or Regulation, as the case may be;

(13) shall be deemed to have been inserted for the sake of convenience only; and
(c) may be corrected or amended under the authority of Government.

Section 53 (Now) The headings of the Parts or Chapters into which any Central Act or
Regulation is dibéded shall be deemed to IE; part of the Act or Regulation, as the case may be.

Revised Section 6A , Where any Central Act or Regulation (other than _a temporary Act or
Regulation) amends text of any Central Act or Regulation by the express omission, insertion or
substitution of matter, and the amending Central Act or. Regulation is subsequently repealed.
then, unless If ifierent intention appears, the repeal shall not afiect the continuance of any such
amendment by the Central Act or Regulation so repealed and in operation at the time of such
repeal.

Section 63 (Now) After section 6A of the principal Act, the following section shall be inserted,
namcly,"----

"IJB. Where the short title of any enactment, being a Central Act or Regulation, is aniended,
then, reference to that Central Act or Regulation by its old title in any other enact- ment or any
statutory instrument shall, unless a diflerent intention appears, be construed as rcjkrences to it
with its new title."

Section 8(1) should be revised, and section 8(I-A)" inserted, as follows :--

'_ "3('l) Where this Act, or any Central Act or Regulation made after the commencement ofithis
Act, rcpcals and re-enacts, with or without modification, any provision of a former enact- tnint,
than references in any other enactment or in any statutory instrument to the provision I . Date of
comrnmccrncnt of amendment Act to be entered.

2. This new section can apply to existing Acts.

lCh. 5] Marginal note not part of enactments.

[ch. .5] I-[eadin 5 part 0 cnactmcnfs.

[Cl_!- 5} Rcpealoflaw makingjtpxtual amendmcuts in -ft .

othcrlm. :

[ch. 6] Refereacc to < AF! Etc; t.

-w thshpfi ' Litlic ameiudcd. V ' {Ci}. 1'] Efiect of expiry of iempurnry Act.' [Ch. 7].

Time of expiry of temporary Acts etc. ' [cu 8 J ;

Expressions in time. -
so repealed, or to the provnion of any former enactnient repealed and re--enacred' by the
provision so repealed, shall, unless a diflerent intention appears, be construed as references to the
provision so re--cnacted.

(1-A) Where any statutory instrument rescinds and re-incorporates, with or without mada7- E
ficurion, any provision of a former statutory instrument, than references in any enactment or in T
' any other statutory instrument to the provision so rescinded, or to the provision of any forrntr
statutory instrunien: rescinded and re--t'ncorporated by the provision so rescinded, shall, unis: a
rlr'fl'emr! intention appears, be construed as references to the provision so re-incorporated."

Section 8-A (New) {i--A. Where a temporary Central Act or a temporary Regulation made on or
after the . . . . . . . . . . . . .day of . . . . . . . . . . . expires,' then, in the absence of an express
provision to the contrary, the expiry shall not aficct-----

(a) the previous operation of, or anything duly done or suifercd, under the temporary Act or
Regulation ; -

(b) any right, privilege, obligation or liability acquired, accrued or incurred under the temporary
Act or Regulation ; i (C) any penalty, forfeiture or punishment -incurred under the temporary Act
or Regu-

lation ; or ',:_ J: _.

it!) any investigation, legal proceeding or remedy in respect of any such right. privilege, t'?
obligation, liability, penahy, forfeiture or punishment as aforesaid; and any such investigation,
legal proceeding or remedy may be instituted, continued or enforced, and any such penalty,
forfeitureuor punishment may be imposed, as if the temporary 3 Act or Regulation had not
expired.

Section 8-3 (New)

853. Where a Central Act or Regulation made on or after the . . . . . . . . . . . day of . . . . . . . . . . . .

. . . . . . express:-.d=_ to expire, lapse or otherwise cease to havfic client on a particular day, then
it shall, unless the contrary intention is expressed, be construed ceasing to have effect
immediately on the expiration of the day immediately preceding that day.

Revised Section 9 9(]) In an»; Central Act or Regulation made on or after the commencement of
Act orin any statutory instrument made ihereunder, it 511311 be 5"ffi°i"'-""t"' ' ' :.I (21) to use
the ward "from-s 0,. mg ward "after" for the purpose of excluclnigefifgi first in a series of days ; -
- ~ (13) to use the word -'-to",fo1- the purpose of including the last in a scries 5, days , . -. s - :

,-._ Ana":

1. Date of L201'n1'|1€nCE]T|.€l.'!'. of an-iendirlfl A" 'C' be 'n5°"'°d' 2 Dam of co ,1 nu-.: mm of

afnsnding Act to be inserted.
in--v -1.'§-\.4§:,','_',,,|,",,, am.»-

..3L 105 _ (IA) In any Central Act or Regulation made on or after the ............................... .. day
of . . . . . . . . . . . . . . . .197 ,1 or in any statutory instrument made thereunder.

it shall be sutfict'ent---

(a) to use the word "'on" for the purpose of including The 6551)' 0H which 61 P¢'"'0d is
expressed to begin ; e (In) to use the word "with" for the purpose of including the day on which a
period is expressed to end ; '

(c) in relation to the interval between two events----

(i] to use the words "clear days" or the words "at least" or "not less than" a specified number of
days, for the purpose of excluding the days on the events happen ; and V "T-

(ii) merely to specify the number of days for the purpose of excluding the clay on which the firs!
event happens and including the day on which the second event happens.

(IB). Where in any Central Act or Regulation made on or after the. . . . .'.' . . .._.. day of 3 or in
any statutory instrument made under any such Central Act or Regulation, a period from a
specified day to a specified day is referred to, followed by the words "n'Joth' days inclusive". the
period shall include both the days.

(2) Subsection (1) applies also to all Central Acts made after the third day of January, 1865, and
to all Regulations made on or after the fourteenth day of January. 1887, and to etat:n'ar_v
instruments made under such Central Acts or Regulation.

Revised section 10 S ' i19(1). Where, by any Central Act or Regulation made after the
commencement of i:!ilaA.{c]1, 3] Afi.§'flr by any statutory instrument made under any such
Central Act or Regulation, any act proceeding is directed or allowed to be done or taken in any
Court or offioe on a cettfin day or within a specified period, then, if the Court or oflicc is closed
on that day at all the last day of the specified period, the act or proceeding shall be considered as
done or taken in due time if it is done or taken on the next day afterwards on which the Court or
oificc is open : : ' ' ' Ltmtiartan Act, 1953, applies.

K2). This section applies also to all Central Acts and Rcgulatwns madeon or after. fourteenth day
of January, 1887 and to statutory lnitrumonts made under sach Central tiers"

or Regulations.

_ -1. Date of commencement of the amending Act to be entered.

2.. Date of commencement of amending Act to be inserted. 15 M of Law,t'74---1-I5 i . . -

1 I ' \ .' i t
-. n, -..-,._.....i__.....s___... . ... ._ ._... . ...-___'je.

rovided that nothing in this section shall apply to any act or proceeding to which. thp.

* 4;;

_-_fi_: 1 ''21-' I! [Ch. 8].

ltcterence to Incorporation.

tea. at Oifences by COfl'I|D3Dl¢I.

Section 10A (New) After section 10 of the principal Act, the following section shall be inserted,
namely :--

"IDA. Where in any Central Act or Regularion made on or after the . . . . . . . . . . . . L.

day of . . . . . . . . . . . . . . . . ..197 ,1 any reference to a specified time of the day occurs, then such
time shall', unless it is otherwise specifically stared, mean the Indum Standard Tirne." ' Revised
section 13 (I) In every Central Act or Regulation, unless the context otherwise requires, worm
importing the masculine gender shall include females.

; (2). In every Central Act or Regulation, unless the context otherwise requires, words in the
singular shall include the plural, and words in the plural shall include the singular.

.5'ection_l3A (New) T __; "l3A_. Where, by or under any Central Act or Regulation made on or
after the . . . . . . ................... .. day of any association or body of persons is consrinated a body
corporate, then, unless a dzflerenr intention appears, that body corporate---

(a) shall have perpetual succession, and a common seal with. power to alter or change tl1e~seal:

T {-bl). may sueiand he sued by its corporate name; T . 1

(c) shall have power------

- . {i} to Conn-acI'b;P its corporate narne ;

'(ii) to acquire, hold or dispose of property, whether movable or immovable." . Section 13AA
(New) (1') If the person committing an ofience under any Central Act or Regulation mntI_e_ on
or after the . . . . . . . . . . . . ..day of . . . . . . . . . . . . . .' is a company, then, unless a diiferelr
intention appears, the company as well as every person in charge of, and responsible to, the
company for the conductof its business at the time of the commission of the ofienbe shall be
deemed' to be guilty of the offence and shall be liable to he proceeded against and punished-
accordingly.
Provided that nothing contained in this subsection shall render any such person liable .

"to any punishment if he proves that the offence was committed without his lcnowlodge or that
he exercised all due diligence to prevent the commission of such ofience.

(2) Where an ofienoe under such Act__ or Regulation has been committed by a company, then,
unless a different intention appears, any director, manager, secretary or other o_' r 'T i the
company, not being a person in charge of, and responsible to, the company for the com! _ - at' its
business at the time of' the commission of the ofience shall, if it isiproved that the has been
committed with his consent or connivanoe or that the commission of the oEenc§- is attributable
to anyiueglect on his part, bedeemed to be guilty of that offence-and @ll liable to he proceeded
against and punished accordingly. H l. Date of commencement of the amending Act to be terod.

2. Date of oomrncnocment of antcndrnmt A ct to beenlcred.

3_ gate of commencement of amending Act to inserted.

Section l3AA (New) Contrt.

Explanation.--For the purposes of this section.---

it (3) "con-lpan\Ir!' means any body corporate and includes a firmior other persons, and ' . Ifb)
"director", in relation to a form, means a partner in the firm. Section 1311 (New) "13B. In the
absence of an express provision to the contrary, every Central Act or Regulaa 10]. t tion made on
or after the ................... ..day of ................... ..197 1, shall be binding on the to be ! Government."
i'°""'-

I _ Section 13C (New) , _ I :_ ' ' I _ _.'.

I 13C. In the absence of an express provision to the contrary, a debt due to the Government [Ch.
101§_'__ 'vF\_'_ under any Central Act or Regulation made on or after the ............. "day of"
........ ..- ...... . . . . . . . . ., shall have priority over other debts not secured by a mortgage or charge,
if the debt is in the nature of a tax or free, but not otherwise."

it i Revised section 14. '-

,5 I4. (1) "There, by any Central Act or Regulation made after the commencement oi'-
*tl'Ii§7[¢h_ 111 Act or by any statutory instrument made thereunder, any power is oonferred or
any duty imposed, then, unless a different intention appears, that power may he exercise, and that
duty shall be performed from time to time as occasion requires. . .

i 7-"{2} This section applies also to all Central Acts and Regulations made on or after the 'i
fourtcenth day of January, 1887, and to statutory instruments made thereunder.

l Revised section 15
15. Where, by any Central Act or Regulation, or lay any statutory instrument 'made ther¢- {ch
11-1. 5 under, a power' to appoint any person to fill any ofiice or execute any function is
conferred. 1 7 then, unless it 1:; otherwise expressly provided, any such appointment, if it is'
made after the commencement of this Act. may he made either by name or by virtue of oifice.

Revised section 17(1) .

e-.5117. (1) In any Central Act or Regulation made after the commencement. of this Act. it
slfllljsbe sulficiant, for the purpose of indicating the application of a law" to every person or
notifier of persons for the time being executing the functions of an ofliee, to"-mention the ofiigl
title of the ofiicer executing the functions, ai the time when the Central Act or Regulation * is
made, orethat of the oflicer by whom the functions are commonly executed.

{ch 111 Section 18A (New) IBA. Where, under any Central Act or Reputation made on or after
the . . . . . . . . . .. day [Ch 11] of.-., . .- . . . . . . . . .3, or under any statutory instrument made
thereunder,--- ' ' an) the exercise of a power or discitarge o_f,a function.i;jt a_ person 0;.-, gosh
the opinion, belief or state of mind of that person or authoritviin relation to anai

1. Date of commencement of amendment Act to be entred.

2. Date of commencement of amending Act to be entered.

3. Date of Amendment Act to be entered.

~g,,.___..._.'....-.._....._..... - .

lch. 1!) Deviation from farm (New).

[ch.I31_ Construction of llal.'I'l'D0!'}_{ lustmmcnti.

[ch. 12] Ich. 11] Making" of (B. '23[1l and 5.111(3)}-

(13) that power or function has been delegated in pursuance of such Act or Regulation or
statutory instrument. then, save as is otherwise expressly provided by such Act or Regulation or
statutory instrument, the power or function may be exercised or discharged by the delegate upon
the opinion, belief or state of mind of the delegate in relation to that matter.

Section 19A (New) "19A. Whenever a form is prescribed or specified for any act by any Central
Act or Regga- lation, or by any statutory instrument made thereunder, then, save as is otherwise
expresflj provided by such Central Act or Regulation or by such statutory instrument, anv
deviations there} from neither affecting the substance nor calculated to mislead. shall not render
the acttor fan:

irtvalid} Revised section 20 \

20. Expressions used in a statutory instrument made under a Central Act or Regulation shall.
unless the context of the statutory instrument otherwise requires, have the same respective

-meanings as in the Act or Regulation.

Revised section 21 E 7;.

21. Where, by any Central Act or Regulation, a power to make a statutory instrurnentlib
conferred, them, unless the context otherwise requires, that power includes a power, exercisable ,
in the like manner and subject to the and conditions {if any), to add to, amend, vary or rescind
the statutory instrument so made.

"22. Where, by any Central Act or Regulation which is not to come into force immediately
Revised section 22 on the passing or making thereof, a power is conferred--~

(a) to make a statutory instrument, or

(b) to issue orders with respect to---

(i) the application of the Act, or Regulation. . . .,

(ii) the establishment of any court or ofice, or

(iii) the appointment of any Judge at ofiicer thereunder, or

(iv) the person by whom or the time when, or the place where, or the manner or the fees for
which, anythiirg is to be done under the Act or _ that power may be exc'rcimd- at any time after
the passing of the Act or

23. Where .. . . any Central Act on Rognldtlon confers on any authority powerito a statutory
instrument subject to the of the statutory instrumetit being previous publication, then the
'fol1owing'p1'ovificns shall apply, namely :--

the Regulation, cficct till the common but statutory instruments or orders so mark: or issued
shallfncttfl cement o£_ the Act or Regulation, or, mime all provisiairs' of Act or Regulation do
not come into force at the same time. then tilt tile caIr1i1IuIIIu- men: of the relevant provision.

Revised section 23

5. '~ r

(a) the authority . . . . . .. sliall first publish a draft of the proposed instrument for I information of
persons likely to be aficctoclt thereby, together with a notice specifying the date or after which
the draft will be taken into consideration ;

1. New section 19A can apply tcfexisting Acts also.

.,, I : r:W".;'Fi ' . . - . ' ' (.23(2)}.

(b) the publication shall be made in such manner as the authority deems to be suflictent, ! or, if
the empowering provision in the Act or Regulation so requires. 511 511°}! 111311951" as 'h'
Gmelmnent concerned directs;

(c) . . . . . . . any objection or suggestion . . . . . received by the authority . . . . from any (,_23(4)).
person with respect to the draft before the date specified in the notice shall be considered by it,
and, where the statutory instrument is to be made with the sanction, approval or concurrence of _
authority, also by that authority, before the instrument is finally made;

._....--_.. , ._ ..._,'..' {6} the publication in the official ganette-. of a statutory instrument
purporting to have been made after previous publication in exercise of a power to make such
statutory instrument shall be conclusive proof that the statutory instrument has been made in
comphanoe with the provisions of this section.

Section 23A (New) Publication and commencement of rules, bye-laws and general orders
i"23_A. (1) Every rule made or bye-law approved or general order issued by the Central [ch_ 12]
Govéfiunenr on or after the . . . . .. day of . . . . . . .1 under any Central Act or Regulation----

(:1) shall be published in the official gazette. I3-ml' . ""-'E

(b) shall, in the absence of an express provision to the contrary either in the rule or bye--law or
general order or in the Central Act or Regulation under which it iomade or approved or issued,
come into force on the day on which it is published in the official gazette.

'I T2) No such rule or bye--law or general order shall come into force from a date earlier their;
the date on which it is made or approved or issued by the Central Government, unless the Contal
Act or Regulation under which it is made or approved or issued expressly confers a power is
gave in-such effect.

_ Explanation.-----ln this section, the expresion "general order" means an order which affects the
public. ' Section 133 (1) Every rule made under any Central Act by the Central Government on
or -after [ch 1;] tU_"' . . . . . . . . ..day . . . . . . . . . . ..of...- . . . . . . . ..'~' shall be laid, as soon as
may be after R1_I1fii°b'.I it made, before each House of Parliament while it is in session for a
total period of thirty days 'IIHLVI may be comprised in one session or in two or more successive
sessions; and it, before the expiy of the session in which it is so laid or the successive sessions
aforesaid, both Houses in making any modification tn the rule or both Houses agree that the rule
should not bohflde, the rule shall thereafter have effect only it such modified form or be of no
eflect, as thc case may be, so however that any such rnolfificnrion or annulment shall be without
prejuditce to the validity of anything previously done under that rule.

(2) Every such modification or annulment shall be published in the oflicial gazette. " ' Section 24
In section 24. for the words "notification, order, scheme, rule. form or bye-law", wherever they
occur, the words "or statutory instrurnent" shall be substituted.
[ch. 12} : 1. lhto of commencement ofthc amendment Act to l:oe'entered_

2. Insert date of commencement of amending Act.

Modildtbn-.

'-'ti I [ch. 14} ' [-ch. 14] [ch 15] I .'.5.-1,'_-1 I .'\ 5.

1.-

[ch. 15] Section 25 In section 25, for the words1 "the Codeuor Criminal Procedure for the time
being in force", the words, and figures and comma "the Code of Criminal Procedure, 1974'' shall
be substituted.

Revised section 26 "(1) 'Where an act or omission is made punishobie under two or more
enaehnents,'_itln:§ ofiender shall, subfect to the provisions of sub-section (2) ', be liable to be
punished under = one,-but not under more than one, of those enactments. ' e 7 i 1'2) Where---

(a) an act or omission constitutes an oflence under one enactment,' and 1 ii (13) the same act or
omission, in conjunction with any other ingredient or ingredients, constitutes an offence under
any other enactment or enactments, then the offender may be prosecuted and punished for each
of such offences, but the aggregate of the' punishments shall not exceed the punishment which
could have been awarded for tip, K," j most serious of the offences.' u Revised section 27 2'i'( 1)
"Where any Central Act orkegulation made after the commencement of this Act or zfny
sriitutory instrumentmode thereunder authorises or requires any document to be served by post,
whether the expression "serve" or either of the expression "give" or "send" or any other
expression is used, then, unless a different intention appears, and uniess the contrary is proved,
the service shall be de_emed-- -

(a) to be effected by properly addi-essing', pre-paying and posting by registered post, letter
containing the document, and ' "n$;- 'to have been effected [lat .rexn¢ at 'an; the letter would be
delivered in the ordinary course of post.

(2) Nothing in sub-section (1) shall' appiyio oh.-tier, which the addressee has refused to accept
her snch.'cu.res.,it _shaII.be__oper_z _t_o_the_ Court to draw or noI..to.cira14r.-an}'-
St¢qiI_*p_rve- 1 _;

" prion as it may think fit to draw under section 114 of the Indian Evidence Act, 1872, having,» '
regaIcl_to the circumstances of the case." _ ' . _ 3, ' = "I ' Revised section 23(1) -- ' 7 - _! 75$ 'fr
1) In any Central Act or Regulation, and in any statutory. instrument-, -or document' mule-:_ - '
under, o'r__with,1'eferencc to, any such Act or Regulation ; ' , : ., , - - V - ' 1

(a) any enactment may be cited by reference to the title or short title (if any] conferred . thereon
or by reference to the number and year thereof. and T x
(b) any provision in an enactment may be cited by reference to the section CI' sub? section of the
enactment in which the provision is contained." __ ._ ,..' .' . .E',: "' ' , .- I---

_ "T --.'.T?

J. This can apply to existing Act: also.

2. In the alternative, the words "and the ofl'enees_are not distinct" couldbcuscd in sub-mtion (I)
instead of the words "subject to the provisions of subsection (2 ." - ' Section. 29A (New) "29.
The provisions of this Act respecting the construction of Central Acts or Regatationsggi-
in1'51for made on or after rim . . . . . . . . day of . . . . . . . .1 shalt not affect the construction of
any Central gnagtmgnm 'fit, Act or Regulation made before that date, aitizoagh the Central Act
or Regulation is continued mad' 54°"

aincndmem.

or amended by any Central Act or Regulation made on or after that date."

__ . Section 30 In section 30 cf the principal Act, after the word and figure "section 5"', the
words, figure and letter "and section 8.4" shall be insert.-:d.'.3 _t.. «in.-

Date of commencement of amendment Act to bc cntcrcd.

I This is consequential on New section 8 A.

_-' 3. Suction reference in this amendment (referring to effect of expiry) should be chcckcd up if,
than is a E change in numbering.

Mr-

_.___....~_.--»----- -an -' lvIGIPF.R'ND--~ Is M of 1..wn+.-sac III(Din")--lS---ll---7+--2.0o0