LAW MAKING IN INDIAN POLITY AND STATUTORY INTERPRETATION

Ahmednagar Jilha Maratha Vidya Prasarak Samaj’s

NEW LAW COLLEGE

Ahmednagar

LL.M I Semester II[2014 Pattern]

LAW MAKING IN INDIAN POLITY

AND STATUTORY INTERPRETATION

Asst.Prof.Punam Umesh Vaddepalli

B.A.,LL. M.(SET)

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 LAW MAKING IN INDIAN POLITY AND STATUTORY INTERPRETATION

(Paper -7)

Com pulsor y Paper C r edits: 4

LAW MAK ING IN INDIAN POLITY & STATUTORY INTERP RETATION

I) I ntr oduction:
a) Significance, utility, scope and objective of th e cour e, its
theoretical and practical relevance
II) Law Ma king Pr ocesses:
a) Constitutional Law making
b) Statutory Law making &general scheme of legislative drafting.
c) Objectives of civil, criminal, commercial and in ternat nal law.
d) Sub-ordinate Law making.
e) Judicial Law making.
(Its interrelation and significance in delivery of justice and social mobilization)
III) Ant icip a ted Goa ls a nd Obstacles in implemention of la w:
a) Law and morals.
b) Law and Public Opin ion.
c) Law and Politico-Economic structure.
d) Law and administrative machineries.
IV) Genera l Pr inciples of Statutor y Interp retat ion:
a) Primary rules, literal rule Golden rule, Mischief rule, rule of harmonious
construction,

b) Secondary Rules – Noscitur a sociis, Ejusdem generis, Reddeno singular

singulis.
V) Exter na l sources an d Interna l a ids
a) Dictionaries, statutes in para materia, contempornea e position, debates,
inquiry commission reports and law commission reports.
b) Title, Preamble, Headings, Marginal notes, section and subsections,

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punctu ation marks, illustrations exceptions, provisos, savings clauses,

schedules and non obstante clause.
VI) C lassification of Statutes and Subject wise Interpretat ion
a) Interpretation of Constitutional Law, International La incorporated in
municipal Law, Penal statutes and Tax Laws
VII) Other Ru les of Inter pr eta t ion
a) Presumption in statutory interpretation, Maxims and statutory interpretation.
b) Leading cases relating to interpretation of Statute

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Topic No 1
Introduction, Meaning and Nature of Interpretation

Introduction
Enacted laws, especially the modern acts and rules, are drafted by legal experts and it
could be expected that the language used will leave little room for interpretation or construction.
But the experience of all those who have to bear and share the task of application of the law has
been different.1
Interpretation means the art of finding out the true sense of an enactment by giving
the words of the enactment their natural and ordinary meaning. It is the process of
ascertaining the true meaning of the words used in a statute. The Court is not expected to
interpret arbitrarily and therefore there have been certain principles which have evolved out of
the continuous exercise by the Courts. These principles are sometimes called ‘rules of
interpretation’.
The object of interpretation of statutes is to determine the intention of the legislature
conveyed expressly or impliedly in the language used. As stated by SALMOND, “by
interpretation or construction is meant, the process by which the courts seek to ascertain the
meaning of the legislature through the medium of authoritative forms in which it is expressed.”
Elaborate rules of interpretation were evolved even at a very early stage of Hindu civilization
and culture. The rules given by ‘Jaimini’, the author of Mimamsat Sutras, originally meant for
srutis were employed for the interpretation of Smritis also.2
In the process of interpretation, several aids are used. They may be statutory or non-
statutory. Statutory aids may be illustrated by the General Clauses Act, 1897 and by specific
definitions contained in individuals Acts whereas non-statutory aids are illustrated by common
law rules of interpretation (including certain presumptions relating to interpretation) and also by
case-laws relating to the interpretation of statutes.

1
Keshav Mills Co. Ltd. v. CIT. AIR 1965 SC 1636, p. 1644
2
Law Commission of India, 60th Report, Chapter 2, para 2.2

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Meaning and Definition of Interpretation

According to Salmond interpretation or construction is the process by which the courts seek to
ascertain the meaning of the legislature through the medium of authoritative forms in which it is
expressed.”3 It has been said that there is a distinction between the two expressions. As
explained by Cooley: “Interpretation differs from construction in the sense that the former is the
art of finding out the true sense of any form of words; i.e. the sense that their author intended to
convey. Construction on the other hand, is the drawing of conclusions, respecting the subjects
that lie beyond the direct expression of the text.4 This distinction has been widely criticized.
Interpretation of statute is the process of ascertaining the true meaning of the words used in a
statute. When the language of the statute is clear, there is no need for the rules of interpretation.
But, in certain cases, more than one meaning may be derived from the same word or sentence. It
is, therefore, necessary to interpret the statute to find out the real intention of the statute.
Interpretation of Statutes is required for two basic reasons:-
1. Legislative Language – Legislative language may be complicated for a layman, and hence
may require interpretation; and
2. Legislative Intent – The intention of the legislature or Legislative intent assimilates two
aspects: a. the concept of ‘meaning’, i.e., what the word means; and b. the concept of
‘purpose’ and ‘object’ or the ‘reason’ or ‘spirit’ pervading through the statute.
Some Important points to be taken care of in the context of interpreting Statutes:
 Intention of the legislature.
 Statute must be read as a whole in its Context.
 Statute should be Construed so as to make it Effective and Workable – if statutory provision
is ambiguous and capable of various constructions, then that construction must be adopted
which will give meaning and effect to the other provisions of the enactment rather than that
which will give none.
 If meaning is plain, effect must be given to it irrespective of consequences.

3
Salmond, Jurisprudence, 11th Edition, p. 152
4
Cooley, Constitutional limitations, Vol. 1, p. 97

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 The process of construction combines both the literal and purposive approaches. The
purposive construction rule highlights that you should shift from literal construction when it
leads to absurdity.
Nature and Scope
Necessity of interpretation would arise only where the language of a statutory provision is
ambiguous, not clear or where two views are possible or where the provision gives a different
meaning defeating the object of the statute.
If the language is clear and unambiguous, no need of interpretation would arise. In this regard, a
Constitution Bench of five Judges of the Supreme Court in R.S. Nayak v A.R. Antulay 5, has
held:
“… If the words of the Statute are clear and unambiguous, it is the plainest duty of the Court to
give effect to the natural meaning of the words used in the provision. The question of
construction arises only in the event of an ambiguity or the plain meaning of the words used in
the Statute would be self-defeating.”
Again Supreme Court in Grasim Industries Ltd. v Collector of Customs, Bombay 6, has followed
the same principle and observed:
“Where the words are clear and there is no obscurity, and there is no ambiguity and the intention
of the legislature is clearly conveyed, there is no scope for court to take upon itself the task of
amending or altering the statutory provisions.”
The purpose of Interpretation of Statutes is to help the Judge to ascertain the intention of the
Legislature – not to control that intention or to confine it within the limits, which the Judge may
deem reasonable or expedient.
The correct is one that best harmonises the words with the object of the statute7. As stated by
Iyer J. “to be literal in meaning is to see the skin and miss the soul. The judicial key of
construction is the composite perception of the deha and the dehi of the provision.”8
According to Blackstone the fairest and rational method for interpreting a statute is by
exploring the intention of the Legislature through the most natural and probable signs which are

5
AIR 1984 SC 684
6
(2002) 4 SCC 297
7
Justice GP Singh, Principles of Statutory Interpretation, Lexis Nexis, 14th Edition, 2016, p. 21
8
State of Punjab v. Qaisar Jehan Begum, AIR 1963SC 1604, p. 1606

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‘either the words, the context, the subject-matter, the effects and consequence, or the spirit and
reason of the law’.9

TOPIC NO. 2
LAW MAKING PROCESSES
Legislative Law making procedure in India

Government

Laws are made separately at different levels, by the Union Government/Federal Government for
the whole country and by the State Governments for their respective states as well as by local
municipal councils at district level. The Legislative procedure in India for the Union
Government requires that proposed bills pass through the two legislative houses of
the Parliament of India, i.e. the Lok Sabha and the Rajya Sabha. The legislative procedure for
states with bicameral legislatures requires that proposed bills be passed, at least in the state's
Lower House or the Vidhan Sabha and not mandatory to be passed in the Upper House or
the Vidhan Parishad. For states with unicameral legislatures, laws and bills need to be passed
only in the state's Vidhan Sabha, for they don't have a Vidhan Parishad.

Constituent power of parliament

The process of addition, variation or repeal of any part of the constitution by the Parliament
under its constituent powers, is called amendment of the constitution. The procedure is laid out
in Article 368. An amendment bill must be passed by each House of the Parliament by a majority
of the total membership of that House when at least two-thirds members are present and voted.
In addition to this, certain amendments which pertain to the federal and judicial aspects of the
constitution must be ratified by a majority of state legislatures. There is no provision for joint
sitting of the two houses (Lok Sabha and Rajya Sabha) of the parliament to pass a constitutional
amendment bill. Basic structure of the Indian constitution cannot be altered or destroyed through
constitutional amendments under the constituent powers of the Parliament without undergoing
judicial review by the Supreme Court. After the 24th amendment, parliament in its constituent

9
Blackstone, Commentaries on the Laws of England, Vol. 1, p.59

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capacity can not delegate its function of amending the constitution to another legislature or to
itself in its ordinary legislative capacity.

Proclamation of emergency per Article 352 (6) shall be ratified by the Parliament similar to its
constituent power. When President's rule is invoked in a state using Article 356 (c) and its
proclamation contains such incidental and consequential provisions suspending in whole or in
part the operation of any provisions of the constitution relating to any body or authority in the
State for giving effect to the objects of the proclamation, the proclamation needs to be approved
by the Parliament under its constituent power (i.e. not by simple majority) after the 24th
amendment

Legislative Powers

The legislative power of the states and the Centre are defined in the constitution and these
powers are divided into three lists. The subjects that are not mentioned in any of the three lists
are known as residuary subjects. Subject to the provisions in the constitution elsewhere, the
power to legislate on residuary subjects, rests with parliament or state legislative assembly as the
case may be per Article 245. Deemed amendments to the constitution which could be passed
under legislative powers of Parliament, are no more valid after the addition of Article 368
(1) by 24th amendment

Union List

Union list consists of 100 items (previously 97 items) on which the parliament has exclusive
power to legislate.

State list

State list consists of 61 items (previously 66 items) where state legislative assembly can make
laws applicable in that state. But in certain circumstances, the parliament can also legislate
temporarily on subjects mentioned in the state list, when the Rajya Sabha has passed a resolution
with 2/3rd majority that it is expedient to legislate in the national interest per Articles 249 to
252 of the constitution.

Concurrent List

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Concurrent list consists of 52 (earlier 47) where both parliament and a state legislative assembly
can make laws in their domains subject to Articles 254 of the constitution

Nature of peoples' mandate

The powers of a ruling party/co-alliance of the union is depending on the extent of the mandate it
receives from the elections at central and state levels. These are

1. commanding simple majority in the Lok Sabha only capable to run the government by passing
money bills only. President can not issue ordinances on advise of the union cabinet alone as there
is possibility of Rajya Sabha not according its approval.

2. commanding simple majority in the Lok Sabha and Rajya Sabha (together or separately)
capable to run the government by its legislative powers only. With simple majority in Rajya
Sabha, ruling party/co-alliance can remove the vice president and elect a new vice president
per Article 67(b)

3. commanding two - thirds majority in both Lok Sabha and Rajya Sabha separately capable to
run the government by its constituent and legislative powers. Ruling government has full powers
to impeach the President and Judges of Supreme Court / High Courts when charges of violating
the constitution are established by judicial enquiry.

4. commanding two - thirds majority in either house of parliament capable to run the government
by its legislative powers only. As per the procedure given by Article 61(3) or124(4 &
5) or 217(1.b), the President and Judges of Supreme Court / High Courts can be removed after
charges of misbehavior or incapacity are established by means of judicial inquiry.

At state level, simple majority in the legislative assembly (Vidhan Sabha) is enough to exercise
all its constitutional powers except for deciding to have or abolish Legislative Council
per Article 169. Per Article 252, approval of state legislative council, if existing, is also required
to permit the parliament in making laws which are exclusively reserved to state legislative
assembly.

Difference between a Bill and an Act

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tLegislative proposals are brought before either house of the Parliament of India in the form of a
bill. A bill is the draft of a legislative proposal, which, when passed by both houses of Parliament
and assented to by the President, becomes an Act of Parliament. As soon as the bill has been
framed, it has to be published in the news papers and the general public is asked to comment in a
democratic manner. The bill may then be amended to incorporate the public opinion in a
constructive manner and then may be introduced in the Parliament by ministers or private
members. The former are called government bills and the latter, private members' bills. Bills may
also be classified as public bills and private bills. A public bill is one referring to a matter
applying to the public in general, whereas a private bill relates to a particular person or
corporation or institution. The Orphanages and Charitable Homes Bill or the Muslim Waqfs
Bills are examples of private bills. A bill introduced in Lok Sabha pending for its approval,
lapses when the Lok Sabha is dissolved.

How a Bill becomes an Act in Parliaments

A Bill is the draft of a legislative proposal. It has to pass through various stages before it
becomes an Act of Parliament. There are three stages through which a bill has to pass in one
House of Parliament. The procedure is similar for the Legislative Assemblies of States.

First Reading

The legislative process begins with the introduction of a Bill in either House of Parliament, i.e.
the Lok Sabha or the Rajya Sabha. A Bill can be introduced either by a Minister or by a private
member. In the former case it is known as a Government Bill and in the latter case it is known as
a Private Member's Bill. It is necessary for a member-in-charge of the Bill to ask for the leave of
the House to introduce the Bill. If leave is granted by the House, the Bill is introduced. This
stage is known as the First Reading of the Bill. If the motion for leave to introduce a Bill is
opposed, the Speaker may, in his discretion, allow a brief explanatory statement to be made by
the member who opposes the motion and the member-in-charge who moved the motion. Where a
motion for leave to introduce a Bill is opposed on the ground that the Bill initiates legislation
outside the legislative competence of the House, the Speaker may permit a full discussion
thereon. Thereafter, the question is put to the vote of the House. However, the motion for leave
to introduce a Finance Bill or an Appropriation Bill is forthwith put to the vote of the House.

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Money/Appropriation Bills and financial bills can be introduced only in Lok Sabha per Articles
109, 110 and 117. Speaker of Lok Sabha decides whether a bill is Money Bill or not. Chairman
of Rajya Sabha decides whether a bill is finance bill or not when the bill is introduced in the
Rajya Sabha.

Publication in the official Gazette

After a Bill has been introduced, it is published in The Gazette of India. Even before
introduction, a Bill might, with the permission of the Speaker, be published in the Gazette. In
such cases, leave to introduce the Bill in the House is not asked for and the Bill is straight away
introduced.

Reference of Bill to the Standing Committee

After a Bill has been introduced, the Presiding Officer of the concerned House (Speaker of the
Lok Sabha or the Chairman of the Rajya Sabha or anyone acting on their behalf) can refer the
Bill to the concerned Standing Committee for examination and to prepare a report thereon. If a
Bill is referred to a Standing Committee, the Committee shall consider the general principles and
clauses of the Bill referred to them and make a report thereon. The Committee can also seek
expert opinion or the public opinion of those interested in the measure. After the Bill has thus
been considered, the Committee submits its report to the House. The report of the Committee,
being of persuasive value, shall be treated as considered advice.

Second Reading

The Second Reading consists of consideration of the Bill which occurs in two stages.

First stage

The first stage consists of general discussion on the Bill as a whole when the principle
underlying the Bill is discussed. At this stage it is open to the House to refer the Bill to a Select
Committee of the House or a Joint Committee of the two Houses or to circulate it for the purpose
of eliciting opinion thereon or to straight away take it into consideration.

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If a Bill is referred to a Select/Joint Committee, the Committee considers the Bill clause-by-
clause just as the House does. Amendments can be moved to the various clauses by members of
the Committee. The Committee can also take evidence of associations, public bodies or experts
who are interested in the measure. After the Bill has thus been considered, the Committee
submits its report to the House which considers the Bill again as reported by the Committee. If a
Bill is circulated for the purpose of eliciting public opinion thereon, such opinions are obtained
through the Governments of the States and Union Territories. Opinions so received are laid on
the Table of the House and the next motion in regard to the Bill must be for its reference to a
Select/Joint Committee. It is not ordinarily permissible at this stage to move the motion for
consideration of the Bill.

Second Stage

The second stage of the Second Reading consists of clause-by-clause consideration of the Bill as
introduced or as reported by Select/Joint Committee. Discussion takes place on each clause of
the Bill and amendments to clauses can be moved at this stage. Amendments to a clause have
been moved but not withdrawn are put to the vote of the House before the relevant clause is
disposed of by the House. The amendments become part of the Bill if they are accepted by a
majority of members present and voting. After the clauses, the Schedules if any, clause 1, the
Enacting Formula and the Long Title of the Bill have been adopted by the House, the Second
Reading is deemed to be over.

Third and the last Reading

Thereafter, the member-in-charge can move that the Bill be passed. This stage is known as the
Third Reading of the Bill. At this stage the debate is confined to arguments either in support or
rejection of the Bill without referring to the details thereof further than that are absolutely
necessary. Only formal, verbal or consequential amendments are allowed to be moved at this
stage. In passing an ordinary Bill, a simple majority of members present and voting is necessary.
But in the case of a Bill to amend the Constitution, a majority of the total membership of the
House and a majority of not less than two-thirds of the members present and voting is required in
each House of Parliament. If the number of votes in favour and against the bill are tied, then the

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Presiding officer of the concerned House can cast his/her vote, referred to as a Casting Vote
Right.

Passing a bill

If at any time during a meeting of a House there is no quorum which is minimum one-tenth of
the total members of a House, it shall be the duty of the Chairman or Speaker, or person acting as
such, either to adjourn the House or to suspend the meeting until there is a quorum. The bills
taken up under legislative power of parliament are treated as passed provided majority of
members present at that time approved the bill either by voting or voice vote. It is also right of a
member to demand voting instead of voice vote.[10] In case of passing a constitutional
amendment bill, two-third of the total members present and voted in favour of the bill with more
than half(50%) of the total membership of a house, is required per Article 368.

Bill in the other House

After the Bill is passed by one House of the parliament, it is sent to the other House for
concurrence with a message to that effect, and there also it goes through the stages described
above, except the introduction stage. [7] If a Bill passed by one House is amended by the other
House, it is sent back to the originating House for approval. If the originating House does not
agree with the amendments, it shall be that the two houses have disagreed. The other House may
keep a money bill for 14 days and an ordinary Bill for three (3) months without passing (or
rejecting) it. If it fails to return the Bill within the fixed time, the Bill is deemed to be passed by
both the houses and is sent for the approval of the President.

At state level, it is not mandatory that a bill shall be passed by the legislative council (if existing)
per Articles 196 to 199. There is no provision of conducting joint session of both Houses to pass
a bill.

Joint session of both Houses

In case of a deadlock between the two houses or in a case where more than six months lapse in
the other house, the President may summon, though is not bound to, a joint session of the two
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houses which is presided over by the Speaker of the Lok Sabha and the deadlock is resolved by
simple majority. Until now, only three bills: the Dowry Prohibition Act (1961), the Banking
Service Commission Repeal Bill (1978) and the Prevention of Terrorist Activities Act (2002)
have been passed at joint sessions.

President's approval

When a bill has been passed, it is sent to the President for his approval per Article 111. The
President can assent or withhold his assent to a bill or he can return a bill, other than a money
bill which is recommended by president himself to the houses. However Article 255 says that
prior recommendation of president or governor of a state wherever stipulated is not compulsory
for an Act of parliament or of the legislature of a State but the final consent of president or
governor of a state is mandatory. President may be of view that a particular bill passed under the
legislative powers of parliament is violating the constitution, he can send back the bill with his
recommendation to pass the bill under the constituent powers of parliament following the Article
368 procedure. President shall not withhold constitutional amendment bill duly passed by
parliament per Article 368. If the President gives his assent, the bill is published in The Gazette
of India and becomes an Act from the date of his assent. If he withholds his assent, the bill is
dropped, which is known as absolute veto. The President can exercise absolute veto on aid and
advice of council of ministers per Article 111 and Article 74. The president may also effectively
withhold his assent as per his own discretion, which is known as pocket veto. The pocket veto
has only been exercised once by President Zail Singh in 1986, over the postal act where the
government wanted to open postal letters without warrant by amending the Indian Post Office
Act, 1898. If the president returns it for reconsideration, the Parliamentmust do so, but if it is
passed again and returned to him, he must give his assent to it. If parliament is not happy with
the president for not assenting a bill passed by it under its legislative powers, the bill can be
modified as a constitutional amendment bill and passed under its constituent powers for
compelling the president to give assent. In case a constitutional amendment act is violating
the basic structure of the constitution, constitutional bench of Supreme Court would quash the
act. When parliament is of the view that the actions of the president are violating the constitution,
impeachment proceedings against president could be taken up to remove him under Article
61 where at least two - thirds of total membership of each house of parliament should vote in

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favour of the impeachment when charges against the president are found valid in an
investigation.

In case of a bill passed by the legislative assembly of a state, the consent of that
state's Governor has to be obtained.[14] Some times the governor may refer the bill to the
president anticipating clash between other central laws or constitution and decision of the
president is final per Articles 200 and 201.

All decisions of the union cabinet are to be assented by the president for issuing gazette order
(GO). In case the cabinet decisions are not in the purview of the established law, president shall
not give assent to the cabinet decisions. He may indicate union cabinet to pass the necessary
legislation by the parliament to clear the cabinet decision. A minister is not supposed to take any
decision without being considered by the council of ministers per Article 78(c).

The purpose of framing the Indian constitution is to serve with honesty, efficiency and
impartiality for the betterment of its citizens by the people who are heading or representing the
independent institutions created by the constitution such as judiciary, legislature, executive, etc.
When one or more institutions are failing in their duty, the remaining shall normally take the lead
in correcting the situation by using checks and balances as per the provisions available in the
constitution.

Coming into force

Generally most Acts will come into force, or become legally enforceable in a manner as
prescribed in the Act itself. Either it would come into effect from the date of assent by the
President (mostly in case of Ordinances which is later approved by the Parliament), or a specific
date is mentioned in the Act itself (mostly in case of Finance Bills) or on a date as per the wish
of the Central or the State Government as the case may be. In case the commencement of the Act
is as made as per the wish of the government, a separate Gazette notification is made, which is
mostly accompanied by the Rules or subordinate legislation in another gazette notification.

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SUB ORDINATE LAW MAKING (Delegated Legislation)

Delegated legislation is a kind of subordinate legislation. Generally, the ‘delegated

legislation’ means the law made by the executive under the powers delegated to it by the
Supreme legislative authority. It comes in the form of orders, bye-laws etc. The Committee on
Minister’s power said that the term delegated legislation has two meanings-

1. Firstly, it means the exercise of power that is delegated to the executive to make rules.

2. Secondly, it means the output the output or the rules or regulations etc. made under the power
so given.

Sub-Delegation is also a case in Indian Legal system. The power to make subordinate legislation
is derived from existing enabling act. It is fundamental that the delegate on whom such power is
conferred has to act within the limits of the enabling act. Its purpose is to supplant and not to
supplement the law. Its main justification is that sometimes legislature does not foresee the
difficulties that will come while enacting the law.

Therefore, delegated legislation fills in those gaps which are not seen while the formulation of
the enabling act. Delegated Legislation gives flexibility to law and there is ample scope for
adjustment in the light of experiences gained during the working of legislation.

Reasons for Delegated Legislation

In modern times, delegated legislation has become imperative and inevitable due to the following
reasons:-

1. Time factor – The parliament is so much occupied with matters concerning foreign policy and
other political issues that it has no time to enact social legislation in all its details. Therefore, the

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Parliament frames only the broad rules and principles, and the department is left to make rules
and to fill in details.

2. The technicality of the matters – With the progress of the society, things have become more
complicated and technical. All the legislators may not know them fully and, hence, they cannot
make any useful discussion on it. Therefore, after framing of the general policy by the
Parliament the government departments or other bodies who know its technicalities are given the
power to lay down the details.

3. Emergency – During the time of emergency quick and decisive action is very necessary, and at
the same time, it is to be kept confidential. The Parliament is not at all fit to serve this end.
Therefore, the executive is delegated the power to make rules to deal with situations. In England,
the defense of Realm Act, 1914-15, the Emergency Powers Act, 1920 and the Emergency
Powers Act, 1939-40 are examples of such delegation during the First and Second world wars.

4. Flexibility- To adapt the law according to future contingencies or any other adjustments which
are to be made in the in future can be done efficiently and effectively only when a small body is
given the powers to do so. Otherwise amending acts will become necessary and that would cost
wastage of time and money. Therefore, delegation to the departments becomes necessary.

5. Local Matters- These are matters which concern only a particular locality or a particular group
of the profession. Any legislation on these matters needs a consultation with the people of that
particular locality, group or profession. Thus regarding such legislation, the departments are
given powers to make changes and rules in consultation with the person acquainted and with
interested in it.

6. Experimentation- Some Acts of Parliament provides for their coming into operation in
different localities on different dates according to their inability, and as a matter of experiment.
For this purpose, the ministers are given the power to make orders about the date of its
application.

The danger of Delegated Legislation

Prof. Keith has, in great detail, described the dangers of the delegated legislation. Some
important ones are:-

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1. Legislation may be passed in a skeleton form and thus wide powers of action to make new
laws and to impose the tax is given;
2. Parliament gets inadequate time to scrutinize the regulations;
3. Some of the regulations attempt to deprive the subjects of recourse to the law courts for
protection;
4. The procedural advantages of the Crown against the subject (Crown Proceedings Act,
1947) has improved the position to some extent but renders it difficult for him to obtain
redress for illegal actions done under the authority of delegated legislation.

Keeton has summarized the dangers under two heads:

1. Excessive power may be delegated.
2. The Governments Department may assume a wider legislative competence than what the
Parliament has granted.

Safeguard against Delegated Legislation

The following safeguards have been generally suggested by jurists against the delegated
legislation:-

Parliamentary Control
In England when a bill that provides for the delegation of power is before the house, the house
may modify, amend or refuse altogether the power proposed to be delegated in the bill. The
Government has set up a Select Committee on statutory instrument since 1944 to examine every
instrument laid down before the house of commons with a view to determining whether the
special attention of the house should be drawn to it certain specified grounds.

An act was also passed in 1946, i.e. ‘Statutory instrument act which provides that copy of the
Instrument shall be laid before the house before it comes into operation. Apart from these, there
are other methods also through which the parliament can exercise control. It is submitted that in
practice these safeguards have not proved much effective and thus, substantial control is not
exercised.

Judicial Control

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To some extent, judicial control is also exercised over the delegated legislation. In England, as
the parliament is supreme, it can delegate any amount of power. Therefore, the judicial control is
confined within very narrow limits. The courts in these matters interfere under the doctrine of
ultra vires or under their writ jurisdiction. The main ground on which this interference is made is
that the authority to whom the power is delegated has exceeded it.

The grounds on which courts declare bye-law ultra vires are that it is unreasonable or repugnant
to the fundamental laws of the country, or is vague, or it has not been made and published in
accordance with the rules prescribed for the same. But in modern times, there is a tendency to
oust the jurisdiction for the court and this is expressly provided in the statute which delegates the
power. Thus the courts to have not remained very much effective in controlling delegated
legislation.

Publicity
It is necessary that due publicity should be given to the delegated legislation because without
such publicity it may be declared ultra vires.

Other Controls and safeguards

Certain other safeguards which have been suggested and to some extent have been adopted in
practice also are: the delegation should be made only to trustworthy bodies expert device
should be taken and the persons whose interests to be affected by the concerned delegated
legislation should be consulted before making any rule regarding them. Authors, lawyers, and
judges have often vigorously attacked delegated legislation in their writings, opinions, and
judgments respectively, which have to some extent, discouraged delegated legislation.

DELEGATED LEGISLATION

What is delegated legislation?

Delegated legislation has been defined by: Salmond as “that which proceeds from any
authority other than the sovereign power and is therefore dependent for its continued
existence and validity on some superior or supreme authority“. In simple terms it means –
when the function of legislation is entrusted to organs other than the legislature by the legislature

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itself the legislation made by such organs is called delegated legislation. Here we may give some
instances of delegation viz., the Northern India Canal and Drainage Act, 1873, the Opium Act,
1878; the Advocate Act, 1961, the Export & Import Act, Essential Commodities Act, 1955, the
Indian Medical Council Act, the Right to Information Act, 2005 etc.
Need for delegated legislation or reasons for the growth of delegated legislation
The causes for the growth of delegated legislation are discussed below:

(a) Pressure upon Parliamentary Time

The legislative activity of the State has increased in response to the increase in its functions and
responsibilities. The legislature is preoccupied with more important policy matters and rarely
finds time to discuss matters of detail. It therefore formulates the legislative policy and gives
power to the executive to make subordinate legislation for the purpose of implementing the
policy.

(b) Filling in Details of Legislation

The legislature has to make a variety of laws and the details required to be provided in each of
these laws require knowledge of matters of technical or local or specialized nature. The
executive in consultation with the experts or with its own experience of local conditions can
better improve these. There is no point in the legislature spending its time over such details and
therefore the power to fill them in is often delegated to the executive or local authorities or
expert bodies.

(c) The Need for Flexibility

A statutory provision cannot be amended except by an amendment passed in accordance with the
legislative procedure. This process takes time. It may however be necessary to make changes in
the application of a provision in the light of experience. It is therefore convenient if the matter is
left to be provided through subordinate legislation. Delegated legislation requires less formal
procedure and therefore changes can be made in it more easily.

(d) Administration through Administrative Agencies

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Modern government is pluralistic and functions through a number of administrative agencies and
independent regulatory authorities, which have to regulate and monitor activities in public
interest. These agencies such as the Election Commission or the Reserve Bank of India or the
Board for Industrial and Financial Reconstruction (BIFR) or the Electricity Commission or the
Telecom Regulatory Authority of India (TRAI) etc. have to perform ongoing regulation and
control of various activities. Each of these agencies is required to make rules or regulations in
pursuance of its regulatory function.

(e) Meeting Emergency Situations

In times of emergency, the government may have to take quick action. All its future actions
cannot be anticipated in advance and hence provisions cannot be made by the legislature to meet
all unforeseeable contingencies. It is safer to empower the executive to lay down rules in
accordance with which it would use its emergency power.

Classification of Delegated legislation

Delegated legislation can be classified on the basis of the nature of the power conferred on
administrative authorities.

 Appointment Day Clause: Empowers executive authority to determine the day for the
commencement of the Act
 Skeleton Legislation: Legislature enacts the skeleton and administration has to provide the
flesh through subordinate legislation
 Power of inclusion and exclusion: Application of the Act can be expanded or restricted by
making additions or deletions in the schedule through delegated legislation
 Power of extension and application of existing laws: Some statute confers powers on the
Government to adopt and apply laws existing in other states with incidental changes to a
new State.
 Power of suspension: Power delegated to the Government to suspend or to make exemption
from all or any of the provisions of the Act
 Power of modification: Power on the executive to modify the statute itself.
 Delhi Laws Act case: Power of modification should not be used in such a manner so as to
change the essential policy of the Act in question

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 Power to remove difficulties: Nicknamed “Henry VIII Clause”, power to modify a statute
may be conferred on the Government by a removal of difficulties clause. The King is
regarded popularly as the impersonation of executive autocracy.
 Power to prescribe punishment: In US, the penalty for violation of rules can be fixed by the
legislature and not by the authority. However, in England, the power to impose penalty has
been delegated in some statute.
 Power to impose tax.

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CONSTITUTIONAL LAW MAKING

For the purposes of amendment the provisions of the constitution fall under three
categories. The procedure of each category is laid down in the constitution.
Firstly, those that can be affected by a simple majority, required for passing of an
ordinary law. These amendments contemplated in articles 4,169 and 239-A and paras 7 and 21 of
the fifth and sixth schedules respectively 239-A fall within this class. They are specifically
excluded from the purview of Article 368.
Secondly, those that can be affected by a special majority as laid down in Article 368(2).
All constitutional amendments other than those referred to above come within this category and
must be affected by a majority of the total membership of each house of parliament as well as by
majority of not less than two-thirds of the members of that House present and voting.
Thirdly, those that require, in addition to the special majority as described above,
ratification by resolution passed by not less than one- half of the State legislatures. This class
comprises amendments which seek to make any change in the provisions referred in the proviso
to article 368(2).
Amendments in the following provisions require such ratification:
The election and manner of election of the president
The extent of the executive power of the union
The extent of the executive power of a state
Provisions dealing with the Supreme Court
Provisions dealing with the High Courts in the States
High Courts for union territories
Distribution of legislative powers between the union and the states
The representation of states in parliament
Seventh schedule of the constitution
Article 368 i.e. the power and procedure of amendment of the constitution
In khiloto hollohan v. Zachillhu para 7 of the Tenth Schedule to the constitution, which
bars the jurisdiction of the courts in respect of any matter connected with the disqualification of a

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member of a house under that schedule, has been invalidated by the court because it has the
effect of amending the powers of the supreme court and the high courts without following the
procedure required in the proviso to article 368(2).
The amending bill can be introduced in either House of Parliament , but it must be passed
by each house by the special majority prescribed in article 368. The bill, after it has been passed
by both houses and , if the amendment is such as requires ratification by the states, after it has
been ratified by the required number of states must be presented to the president for his assent.
After the assent of the president to the bill, the constitution shall stand amended. In other
respects, the normal procedure of each House of Parliament is to be followed so far as that may
be applicable consistently with the express provisions of Article 368 [1] .

AMENDMENT OF THE FUNDAMENTAL RIGHTS

The question whether an amendment of fundamental rights guaranteed by part III of the
constitution is permissible under Article 368 came before the supreme court as early as in 1951
in Shankari Prasad Deo v. Union of India. In that case, validity of the constitution (first
amendment) Act ,1951, especially the inclusion of Articles 31-A and 31-B was challenged in a
petition under article 32. It was alleged under, inter alia, that as Article 13(2) prohibited making
of laws under abridging fundamental rights, it prohibited such abridgment even by an
amendment because an amendment was also a law. Rejecting the argument , the court held that
the power to amend the constitution including the fundamental rights, was contained in Article
368 and that the word law in Article 13(2) did not include an amendment of the constitution
which was made in the exercise of constituent and not legislative power. Later several other
amendments were made in the constitution of which the fourth and the seventh amendments
related to part III of the constitution. The seventeenth amendment which added several
legislations to the Ninth Schedule making them immune from attack on the ground of violation
of fundamental rights was challenged in the case of Sajjan Singh v. State of Rajasthan. Though
three of the five judges (Ganjendragadkar C.J,&Wanchoo&Dayal JJ.) in that case fully approved
the sankari Prasad case, two of them(Hidyatullah and Mudholkar,JJ.) in their separate but
concurring opinions expressed serious doubts whether fundamental rights created no limitation
on the power of amendment. In Golak Nath v. State of Punjab, the supreme court by a majority
of six to five dissented from Sankari Prasad and Sajjan Singh and held that the fundamental

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rights were outside the amendatory process, if the amendment took away or abridged any
fundamental right.
In Golak Nath case, three writ petitions were involved. One was filed by the son,
daughter , and grandfathers of Golak Nath. In this petition, the inclusion of the Punjab Security
of Land Tenures Act,1953 in the Ninth Schedule was challenged on the ground that the
seventeenth amendment by which it was so included as well as the First and Fourth amendments
abridging fundamental rights were unconstitutional. In other two petitions , inclusion of Mysore
Land Reforms Act(10 of 1962 as amended by Act 14 of 1965) had been attacked on the same
grounds. Most of the contentions raised on behalf of the petitioners and respondents summarised
in the judgment had already been raised before the Supreme Court in Sankari Prasad and Sajjan
Singh cases. The case was heard by an eleven- judge bench of the supreme court which by a
majority of 6:5 held that the fundamental rights were outside the amendatory process if the
amendment took away or abridged any of the rights and that Sankari Prasad case and Sajjan
Singh case conceded the power of amendment over part III on an erroneous view of Article 13(2)
and article 368 and to that extent they were not good law. The judgment was however given a
prospective effect and therefore, it did not invalidate any of the amendments disputed court in the
case.
This decision led to the passing of the constitution (twenty –fourth amendment) Act,
1971, which made significant changes in Article 368. Some of the significant changes made
were.
Power and procedure to amend was put in the marginal note. The name of the power was
constituent power. The amendment could be done by (a) alteration (b) variation (c) repeal
It took away president’s power to negate any sort of amendment.
Nothing in article 368 shall apply to article 13. In short article 368 was kept above article 13.
Fundamental rights could be easily amended.
Year: 1973- Keshvanandabharti case
Article 368 provides for procedure+power{golaknath’s criticism}
F.R. may be amended {golaknath’s criticism}
The S.C. developed the doctrine of “basic structure” or basic provisions of the constitution.
According to Justice H.R. Khanna , F.R. relating to property is not part of basic structure.
Consequences of Keshvananda Bharti decision:

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So far as “basic structure” is concerned ,amendment of the constitution is not possible.

Supremacy of judicial review was affirmed.
42nd amendment act
Article 368(4): no constitutional amendment before or after 1976 shall be taken away by the
judiciary in any court on any ground.
Article 368(5): constituent power is unlimited and is subject to no limitation whatsoever.
Consequences
Parliamentary power supreme.
Constituent power unlimited
Year: 1980-Minerva Mills case
Recognition of separation of power; between executive , judiciary and legislature.
Result
Declared articles 368(4) and 368(5) unconstitutional. Reaffirmed the power of judicial review

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 LAW MAKING IN INDIAN POLITY AND STATUTORY INTERPRETATION

TOPIC NO.3
ANTICIPATED GOALS AND OBSTACLES IN IMPLEMENTATION OF
LAW

Law and Public Opinion:-

According to A.V. Dicey "Public opinion is one of the subsystems that operates in
society and regulates the conduct of social behavior".
In India, since independence, there has been a number of legislation which has been
passed having a novel character.
It is important to trace the connection between development of law and the force of
public opinion
This task of taking public opinion is very difficult. The aim is to study the close
dependant of legislation and even the absence of legislation and even the absence of legislation
upon varying current of public opinion and sometimes undue importance is attached to public
opinion. It is true that the existence and alterations of human institutions must always depend on
beliefs and feelings upon me opinion of society in which the institution flourish.
According to Hume, “As force is always on the side of the governed, the govern have
nothing to support them, but opinion"
Therefore, the government is Founded only on opinion, this maxim extends to the most
despotic and military government and as well as to free and popular government.
Example :- In west, the whites ruled in virtue of opinion entertained by their salves no less than
by themselves that the slave owners possess qualities which gave myth and right to be master.
In India, The four Varna system, This only shows that Hume doctrine holds good in most
extreme cases that the opinion of governed is the real foundation of all government but, this does
not mean that, law is a result of public opinion this term of when used in reference to legislation
is mean a short way of describing the belief or convert, prevent in a given society that certain law
are beneficial and therefore ought to be maintained and if harmful they need to be repealed or
modify.

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If we say public opinion governs legislation then it means that laws are maintained or
repealed in accordance with opinion or wishes of in inhabitants.
This statement may not true in all countries because,
1] Public opinion may be a speculative view to the alteration or improvement of institutions.
2] Members of social are influenced by habits rather than thoughts.
3] The mode of the life of people is based on customary rules.
It is only in the advance civilization that opinion reflects legislative change.
In view, eastern countries, the opinion is tradition and is hostile to change and favorable
to habits and this keeps society within limits of tradition action.
In England, during the 19th and 20th century, public opinion demanded constant
improvement in the law sometimes; we find that, law has not changed because of public opinion
but due to conventions of an individual a small group of people who happened to be place in the
position of authority no ruler can stand completely alone for example :- In Russia, it was not a
public opinion but the convention of the great which molded the law and the institution of
country.
In British India legislation was the work of English specialists who followed the current
English opinion They where guided by their own experience and practical knowledge of India
than the English sentiments. Law may fail to reflect public opinion due to want of a legislative
body with the power and will to carry out reforms..Sometimes effective legislative machinery
has lessened the immediate influence of opinion which may result in legislative stagnation. There
is no parallel to the existing relation between law and public opinion.
In England, it has been public opinion if public opinion governs the country. then it may
be opinion of the sovereign or the opinion of the people this has got certain resolutions, because
people may not participate in the public offence public opinion which finds expression in
legislative is a complex phenomena.
It is mostly a compromise of a conflict between ideas of government and feeling or habit
of the governed. The interest of a few or selfish interest not necessarily for the benefit of a few
but, it is believed that such law will benefit all including nation
Characteristics of public opinion:-
1] Existence of predominant, current, legal opinion-

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They exist at any given time a body of belief, conventional, sentiments, accepted
principles or firmly rooted prejudices which taken together makes some public opinion which
determines the course of legislation.
2] The opinion may originate from individual thinker-
The opinion which affects the development of law may have originated from a single
thinker.
Eg. Anna Hazare - Anticorruption movement, Rajaram Mohan Roy - Sati.
3] The development of public opinion is gradual, slow and continuous process.
Eg. Factories Act..
4] The Dominant legislative opinion is never despotic. The resigning legislative opinion during
the 19th century exerted absolute or despotic authority.
Power is diminished by existence of cross currents and counter currents of opinion, which
may not be in harmony with the prevalent opinion.
The counter current is opinion which is opposite to the dominant opinion.
Example :- Ideals of young citizens of country. The cross current is a strong belief as
opposed to the dominant opinion.
e.g. :- Shah bano case, triple talaq case.
5] Law creates public opinion :-
Law fosters or creates law making opinion. Every law lays down some general principle which
must be supported by public opinion to result into legislature opinion.
eg :- The divorce law.
The meaning of Industry given by Justice Krishna Iyyer in
Bangalore water supply sewerage board
V.
A. Rajapa.
6] The law passed in an emergency often introduced ideas which would not be accepted if it is
brought before the Parliament.
Example :- Anti defection Law In India, Law has been governed by tendency towards
democracy.

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Law and Morals:-

A study of various legal system will make it crystal clear that law and morals have along
union with associated desertion and judicial separation but never completely divorced.
The term “Morals” refers to ethics or principles by which life of an individual is governed.
Morals lay down the rules for molding the character of an individual. However, the morals are
purely the matter of individual conscience and impose no obligation on individual to observe
them.
Relationship between morals and law:-

The morals and law are so blended with each other that sometimes it becomes difficult to
draw a line of distinction between them. Morals have deeply penetrated into Fabric of law in the
name of justice, equity, good faith and conscience. Moral contributions are vital while making
law and while exercising judicial discretion. Morals put a restraint on the law making put a
restraint on the law making power of legislature in the sense that no legislature can make a law
which is opposed to the morals of society. The human conduct and social relations can’t be
governed by law alone. Many relations are left to be regulated by morals.

The relationship of Morals and Law are as follows:-

1) Morals are the basis of Law-

In the initial stage of the social system, there was no distinction between law and morals.
All the rules found their origin from the common source. The fear of supernatural power worked
as sanction behind those rules. Subsequently, the state came into existence; they enforced those
rules which are important from social point of view. Such a rules come to be called as a law thus,
law and morals have a common origin but they came to differ in course of development owing to
this reason, many rules are common to both law and morals. Yet law and morality are two
different things. Many things may be immoral but not illegal. There are several legal rules which
are not founded on morals.
For instance, vicarious liability is provided in law but the morals do not hold a man vicariously
liable some of the legal rules are even opposed to morals.

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2) Morals are the test of law-

Many jurists maintain that law must conform to morals during 17th and 18th centuries, it
was contended that, any law which didn’t conform to natural law must be disobeyed and the
government which made that law was to be overthrown. In the modern times, a law is to be
considered to be valid and binding even if it is not inconformity with morals. Ordinarily laws
conform to morals.
3) Morals are end of law-

Morals are often considered as the end of the law. The reason is that, the purpose of law
is to secure justice and the justice is based on morals.
Law is aimed to the welfare of society and to secure social interests. Morals are evaluations of
such interests.
4) Morals are the part of law-
Many authors believe that even if law and morals are distinguishable, morality is an
integral part of law. Their argument is founded on the fact that, the law in action is not mere
system of rules. But, involves the use of equitable goods and the good.

Distinction between morals and laws:-

Sr. MORALS LAWS

No.
1 Morals related to the individual and Law is focused on the society as a whole.
not to the society
2 In morality, an individual is subject to In law, an individual submit to the will of
the dictates of his own conscience organized society.
3 Moral give guidance to a man Law considers man only in so far in he
irrespective of whether be lives in lives in community or in isolation.
community or in isolation.
4 Morals lay down rules for molding of Law provides the rules of relationship of an

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character of an individual. individual with each other and with state.

5 Morals are an end in themselves. Laws are for the purpose of conscience and
They should be followed because they expediency. Its chief aim is to help smooth
are good in themselves. running of society.
6 Morals look to the inherent value of Law looks to the external conduct or the
conduct to proper intension or motive act of individual for which it lays down
and not external conduct. standard.
7 Morals have universal value. Law varies from society to society, time to
Generally they do not vary from time and place to place.
society, time, to time and place to
place.
8 Morals are applied after taking into Application of law is uniform.
consideration the individual cases

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 LAW MAKING IN INDIAN POLITY AND STATUTORY INTERPRETATION

TOPIC NO 4
RULES OF INTERPRETATION

There are certain general principles of interpretation which have been applied by Courts
from time to time.
Primary Rules of Interpretation are discussed hereunder.
Rule of Literal Interpretation
In construing Statutes the cardinal rule is to construe its provisions literally and
grammatically giving the words their ordinary and natural meaning. This rule is also known as
the Plain meaning rule. The first and foremost step in the course of interpretation is to examine
the language and the literal meaning of the statute. The words in an enactment have their own
natural effect and the construction of an act depends on its wording. There should be no
additions or substitution of words in the construction of statutes and in its interpretation. The
primary rule is to interpret words as they are. It should be taken into note that the rule can be
applied only when the meanings of the words are clear i.e. words should be simple so that the
language is plain and only one meaning can be derived out of the statute.
In Municipal board v. State transport authority, Rajasthan, the location of a bus stand
was changed by the Regional Transport Authority. An application could be moved within 30
days of receipt of order of regional transport authority according to section 64 A of the Motor
vehicles Act, 1939. The application was moved after 30 days on the contention that statute must
be read as “30 days from the knowledge of the order”. The Supreme Court held that literal
interpretation must be made and hence rejected the application as invalid.
Lord Atkinson stated, ‘In the construction of statutes their words must be interpreted in
their ordinary grammatical sense unless there be something in the context or in the object of the
statute in which they occur or in the circumstances in which they are used, to show that they
were used in a special sense different from their ordinary grammatical sense.’
Meaning
To avoid ambiguity, legislatures often include “definitions” sections within a statute,
which explicitly define the most important terms used in that statute. But some statutes omit a
definitions section entirely, or (more commonly) fail to define a particular term. The plain

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meaning rule attempts to guide courts faced with litigation that turns on the meaning of a term
not defined by the statute, or on that of a word found within a definition itself.
If the words are clear, they must be applied, even though the intention of the legislator may have
been different or the result is harsh or undesirable. The literal rule is what the law says instead
of what the law means.
A literal construction would not be denied only because the consequences to comply with
the same may lead to a penalty. The courts should not be overzealous in searching for
ambiguities or obscurities in words which are plain. (Tata Consultancy Services v. State of A.P 10

The literal rule may be understood subject to the following conditions –

 Statute may itself provide a special meaning for a term, which is usually to be found in the
interpretation section.
 Technical words are given ordinary technical meaning if the statute has not specified any
other.
 Words will not be inserted by implication.
 Words undergo shifts in meaning in course of time.
 It should always be remembered that words acquire significance from their context.
When it is said that words are to be understood first in their natural ordinary and popular
sense, it is meant that words must be ascribed that natural, ordinary or popular meaning which
they have in relation to the subject matter with reference to which and the context in which they
have been used in the Statute. In the statement of the rule, the epithets ‘natural, “ordinary”,
“literal”, “grammatical” and “popular” are employed almost interchangeably to convey the same
idea.
For determination of the meaning of any word or phrase in a statute, the first question is what
is the natural and ordinary meaning of that word or phrase in its context in the statute but when
that natural or ordinary meaning indicates such result which cannot be opposed to having been
the intention of the legislature, then to look for other meaning of the word or phrase which may
then convey the true intention of the legislature.
Another important point regarding the rule of literal construction is that exact meaning is
preferred to loose meaning in an Act of Parliament. In the case of Pritipal Singh v. Union of

10
(2005) 1 SCC 308

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India11, it was held that there is a presumption that the words are used in an Act of Parliament
correctly and exactly and not loosely and inexactly.
Rationale for this Rule
Proponents of the plain meaning rule claim that it prevents courts from taking sides in
legislative or political issues. They also point out that ordinary people and lawyers do not have
extensive access to secondary sources. In probate law the rule is also favored because the testator
is typically not around to indicate what interpretation of a will is appropriate. Therefore, it is
argued, extrinsic evidence should not be allowed to vary the words used by the testator or their
meaning. It can help to provide for consistency in interpretation.
Criticism of this rule
Opponents of the plain meaning rule claim that the rule rests on the erroneous assumption
that words have a fixed meaning. In fact, words are imprecise, leading justices to impose their
own prejudices to determine the meaning of a statute. However, since little else is offered as an
alternative discretion-confining theory, plain meaning survives.
This is the oldest of the rules of construction and is still used today, primarily because judges
may not legislate. As there is always the danger that a particular interpretation may be the
equivalent of making law, some judges prefer to adhere to the law’s literal wording.

The Mischief Rule

The mischief rule is a rule of statutory interpretation that attempts to determine the
legislator’s intention. Originating from a 16th-century case (Heydon’s case) in the United
Kingdom, its main aim is to determine the “mischief and defect” that the statute in question has
set out to remedy, and what ruling would effectively implement this remedy. When the material
words are capable of bearing two or more constructions the most firmly established rule or
construction of such words “of all statutes, in general, be they penal or beneficial, restrictive or
enlarging of the common law is the rule of Heydon’s case. The rules laid down, in this case, are
also known as Purposive Construction or Mischief Rule.

11
AIR 1982 SC 1413, P. 1419

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The mischief rule is a certain rule that judges can apply in statutory interpretation in order
to discover Parliament’s intention. It essentially asks the question: By creating an Act of
Parliament what was the “mischief” that the previous law did not cover?
Heydon’s case
This was set out in Heydon’s Case 12 where it was stated that there were four points to be taken
into consideration when interpreting a statute:
 What was the common law before the making of the act?
 What was the “mischief and defect” for which the common law did not provide?
 What remedy the Parliament hath resolved and appointed to cure the disease of the
commonwealth?
 What is the true reason for the remedy?
The office of all the judges is always to make such construction as shall suppress the mischief,
and advance the remedy, and to suppress subtle inventions and evasions for continuance of the
mischief, and pro privato commodo, and to add force and life to the cure and remedy, according
to the true intent of the makers of the Act, pro bono publico.
The application of this rule gives the judge more discretion than the literal and the golden rule
as it allows him to effectively decide on Parliament’s intent. It can be argued that this
undermines Parliament’s supremacy and is undemocratic as it takes lawmaking decisions away
from the legislature.
Use of this Rule
This rule of construction is of narrower application than the golden rule or the plain
meaning rule, in that it can only be used to interpret a statute and, strictly speaking, only when
the statute was passed to remedy a defect in the common law. Legislative intent is determined by
examining secondary sources, such as committee reports, treatises, law review articles and
corresponding statutes. This rule has often been used to resolve ambiguities in cases in which the
literal rule cannot be applied.
In the case of Thomson v. Lord Clan Morris, Lord Lindley M.R. stated that in
interpreting any statutory enactment regard should not only be paid to the words used, but also to
the history of the Act and the reasons which lead to its being passed.

12
[1584] 3 CO REP 7

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In the case of CIT v. Sundaradevi 13, it was held by the Apex Court that unless there is
an ambiguity, it would not be open to the Court to depart from the normal rule of construction
which is that the intention of the legislature should be primarily to gather from the words which
are used. It is only when the words used are ambiguous that they would stand to be examined
and considered on surrounding circumstances and constitutionally proposed practices.
The Supreme Court in Bengal Immunity Co. v. State of Bihar14 applied the mischief
rule in construction of Article 286 of the Constitution of India. After referring to the state of law
prevailing in the province prior to the constitution as also to the chaos and confusion that was
brought about in inter-state trade and commerce by indiscriminate exercise of taxing powers by
the different Provincial Legislatures founded on the theory of territorial nexus, Chief Justice S.R.
Das, stated “It was to cure this mischief of multiple taxation and to preserve the free flow of
interstate trade or commerce in the Union of India regarded as one economic unit without any
provincial barrier that the constitution maker adopted Article 286 in the constitution”.
A principle to be valued must be capable of wider application than the mischief which
gave it existence. These are designed to approach immortality as nearly as human institutions can
approach it’. Mischief Rule is applicable where language is capable of more than one meaning. It
is the duty of the Court to make such construction of a statue which shall suppress the mischief
and advance the remedy.
Advantages
 The Law Commission sees it as a far more satisfactory way of interpreting acts as opposed
to the Golden or Literal rules.
 It usually avoids unjust or absurd results in sentencing.
Disadvantages
 It is considered to be out of date as it has been in use since the 16th century, when common
law was the primary source of law and parliamentary supremacy was not established.
 It gives too much power to the unelected judiciary which is argued to be undemocratic.
 In the 16th century, the judiciary would often draft acts on behalf of the king and were
therefore well qualified in what mischief the act was meant to remedy.
 It can make the law uncertain.

13
(1957) (32 ITR 615) (SC)
14
(AIR 1995 SC 661)

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Golden Rule of Interpretation

The Golden rule, or British rule, is a form of statutory interpretation that allows a judge to
depart from a word’s normal meaning in order to avoid an absurd result.
It is a compromise between the plain meaning (or literal) rule and the mischief rule. Like
the plain meaning rule, it gives the words of a statute their plain, ordinary meaning. However,
when this may lead to an irrational result that is unlikely to be the legislature’s intention, the
judge can depart from this meaning. In the case of homographs, where a word can have more
than one meaning, the judge can choose the preferred meaning; if the word only has one
meaning, but applying this would lead to a bad decision, the judge can apply a completely
different meaning.
This rule may be used in two ways. It is applied most frequently in a narrow sense
where there is some ambiguity or absurdity in the words themselves.
For example, imagine there may be a sign saying “Do not use lifts in case of fire.” Under the
literal interpretation of this sign, people must never use the lifts, in case there is a fire. However,
this would be an absurd result, as the intention of the person who made the sign is obviously to
prevent people from using the lifts only if there is currently a fire nearby.
The second use of the golden rule is in a wider sense, to avoid a result that is obnoxious
to principles of public policy, even where words have only one meaning. Example: The facts of a
case are; a son murdered his mother and committed suicide. The courts were required to rule on
who then inherited the estate, the mother’s family, or the son’s descendants. There was never a
question of the son profiting from his crime, but as the outcome would have been binding on
lower courts in the future, the court found in favour of the mother’s family.
Rule of Harmonious Construction
When there is a conflict between two or more statues or two or more parts of a statute
then the rule of harmonious construction needs to be adopted. The rule follows a very simple
premise that every statute has a purpose and intent as per law and should be read as a whole. The
interpretation consistent of all the provisions of the statute should be adopted. In the case in
which it shall be impossible to harmonize both the provisions, the court’s decision regarding the
provision shall prevail.
The rule of harmonious construction is the thumb rule to the interpretation of any statute.
An interpretation which makes the enactment a consistent whole should be the aim of the Courts

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and a construction which avoids inconsistency or repugnancy between the various sections or
parts of the statute should be adopted. The Courts should avoid “a head on clash”, in the words
of the Apex Court, between the different parts of an enactment and conflict between the various
provisions should be sought to be harmonized. The normal presumption should be consistency
and it should not be assumed that what is given with one hand by the legislature is sought to be
taken away by the other. The rule of harmonious construction has been tersely explained by the
Supreme Court thus, “When there are, in an enactment two provisions which cannot be
reconciled with each other, they should be so interpreted, that if possible, the effect should be
given to both”. A construction which makes one portion of the enactment a dead letter should be
avoided since harmonization is not equivalent to destruction.
It is a settled rule that an interpretation which results in hardship, injustice, inconvenience
or anomaly should be avoided and that which supports the sense of justice should be adopted.
The Court leans in favour of an interpretation which conforms to justice and fair play and
prevents injustice. 15
When there are two provisions in a statute, which are in apparent conflict with each other,
they should be interpreted such that effect can be given to both and that construction which
renders either of them inoperative and useless should not be adopted except in the last resort.
This principle is illustrated in the case of Raj Krishna v. Binod 16[7]. In this case, two
provisions of Representation of People Act, 1951, which were in apparent conflict, were brought
forth. Section 33 (2) says that a Government Servant can nominate or second a person in election
but section 123(8) says that a Government Servant cannot assist any candidate in election except
by casting his vote. The Supreme Court observed that both these provisions should be
harmoniously interpreted and held that a Government Servant was entitled to nominate or second
a candidate seeking election in State Legislative assembly. This harmony can only be achieved if
Section 123(8) is interpreted as giving the govt. servant the right to vote as well as to nominate
or second a candidate and forbidding him to assist the candidate in any other manner.
The important aspects of this principle are –
 The courts must avoid a head on clash of seemingly contradicting provisions and they must
construe the contradictory provisions so as to harmonize them.

15
Union of India v. B.S. Aggarwal (AIR 1998 S.C. 1537)
16
AIR 1954

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 The provision of one section cannot be used to defeat the provision contained in another
unless the court, despite all its effort, is unable to find a way to reconcile their differences.
 When it is impossible to completely reconcile the differences in contradictory provisions,
the courts must interpret them in such as way so that effect is given to both the provisions
as much as possible.
 Courts must also keep in mind that interpretation that reduces one provision to a useless
number or a dead lumbar, is not harmonious construction.
 To harmonize is not to destroy any statutory provision or to render it loose.

Secondary Rules of Interpretation are discussed hereunder.

1. Ejusdem Generis
According to the Black’s Law Dictionary (8th edition, 2004) the principle of Ejusdem
Generis is where general words follow an enumeration of persons or things, by words of a
particular and specific meaning, such general words are not to be construed in their widest
extent, but are to be held as applying only to persons or things of the same general kind or class
as those specifically mentioned. It is a canon of statutory construction, where general words
follow the enumeration of particular classes of things, the general words will be construed as
applying only to things of the same general class as those enumerated.
The expression Ejusdem Generis means of the same kind. Normally, general words
should be given their natural meaning like all other words unless the context requires otherwise.
But when a general word follows specific words of a distinct category, the general word may be
given a restricted meaning of the same category. The general expression takes it’s meaning
from the preceding particular expressions because the legislature by using the particular
words of a distinct genus has shown its intention to that effect. This principle is limited in its
application to general word following less general word only. If the specific words do not belong
to a distinct. Genus, this rule is inapplicable. Consequently, if a general word follows only one
particular word, that single particular word does not constitute a distinct genus and, therefore,
Ejusdem Generis rule cannot be applied in such a case.

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Exceptional stray instances are, however, available where one word genus has been
created by the courts and the general word following such a genus given a restricted meaning. If
the particular words exhaust the whole genus, the general word following these particular words
is construed as embracing a larger genus. The principle of Ejusdem Generis is not a universal
application. If the context of legislation rules out the applicability of this rule, it has no part to
play in the interpretation of general words. The basis of the principle of Ejusdem Generis is that
if the legislature intended general words to be used in unrestricted sense, it would not have
bothered to use particular words at all.

2. Noscitur a Socis

The principle of Noscitur a Sociis is a rule of construction. It is one of the rules of

language used by court to interpret legislation. This means that, the meaning of an unclear
word or phrase should be determined by the words immediately surrounding it. In other
words, the meaning of a word is to be judged by the company it keeps. The questionable
meaning of a doubtful word can be derived from its association with other words. It can be used
wherever a statutory provision contains a word or phrase that is capable of bearing more than one
meaning.
This rule is explained in Maxwell on the interpretation of statutes (12th edition ) in
following words “ When two or more words susceptible of analogous meaning are coupled
together, they are understood to be used in their cognate sense.” The words take their colour
from and are quantified by each other, the meaning of the general words being restricted to a
sense analogous to that of the less general.

3. Reddendo Singula Singulis

Reddendo singula singulis is a Latin term that means by referring each to each; referring
each phrase or expression to its corresponding object. In simple words “reddendo singula
singulis” means that when a list of words has a modifying phase at the end, the phrase
refers only to the last. It is a rule of construction used usually in distributing
property. Where there are general words of description, following a record of particular things,

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such general words are to be construed distributively, and if the general words will apply to some
things and not to others, the general words are to be applied to those things to which they will,
and not to those to which they will not apply; that is to say, each phrase, word or expression is to
be referred to its suitable objects.
The best example of reddendo singula singulis is quoted from Wharton’s law Lexicon,
“If anyone shall draw or load any sword or gun, the word draw is applied to sword only and the
word load to gun only, the former verb to former noun and latter to latter, because it is
impossible to load a sword or to draw a gun, and so of other applications of different sets of
words to one another.” •The reddendo singula singulis principle concerns the use of words
distributively. Where a complex sentence has more than one subject, and more than one object, it
may be the right construction to provide each to each, by reading the provision distributively and
applying each object to its appropriate subject. A similar principle applies to verbs and their
subjects, and to other parts of speech.

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TOPIC NO 5
EXTERNAL SOURCES AND INTERNAL AIDS

INTERNAL AIDS TO CONSTRUCTION

[Laws enacted by the legislatures are interpreted by the judiciary. Their are internal aids to
construction as well as external aids.]
Introduction
Laws enacted by the legislatures are interpreted by the judiciary. Enacted laws, specially
the modern Acts and Rules, are drafted by legal experts and it could be expected that the
language will leave little room for interpretation or construction. But the experience of all who
have to hear and share the task of application of law, has been different. It is
quite often observed that courts are busy unfolding the meaning of ambiguous words and
expressions and resolving in consistencies. The age old process of the application of the enacted
laws has led to formulation of certain rules of interpretation or construction.
The object of interpretation of statutes is to determine the intention of the legislature
conveyed expressly or impliedly in the language used. In Santi swarup Sarkar v. pradeep kumar
sarkar, the Supreme Court held that if two interpretations are possible of the same statute, the
one which validates the statute must be preferred.
Broadly speaking, there are two kinds of interpretation:
1. Literal Interpretation
2. Logical Interpretation
Internal Aids of Interpretation are:-
A. Long Title
It is now settled that Long Title of an Act is a part of the Act and is admissible as an aid
to its construction. The long title which often precedes the preamble must be distinguished with
the short title; the former taken along with the preamble or even in its absence is a good guide
regarding the object, scope or purpose of the Act, whereas the latter 341 being only an
abbreviation for purposes of reference is not a useful aid to construction.

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B. Preamble
The preamble of a statute like the long title is a part of the Act and is an admissible aid to
construction. Although not an enacting part, the preamble is expected to express the scope,
object and purpose of the Act more comprehensively than the long title. It may recite the ground
and cause of making the statute, the evils sought to be remedied or the doubts which may be
intended to be settled. In the words of SIR JOHN NICHOLL : It is to the preamble more
specifically that we are to look for the reason or spirit of every statute, rehearsing this, as it
ordinarily does, the evils sought to be remedied, or the doubts purported to be removed by the
statute, and so evidencing, in the best and most satisfactory manner, the object or intention of the
Legislature in making or passing the statute itself.

C. Preamble to Constitution
The Preamble of the Constitution like the Preamble of any statute furnishes the key to
open the mind of the makers of the Constitution more so because the Constituent Assembly took
great pains in formulating it so that it may reflect the essential features and basic objectives of
the Constitution. The Preamble is a part of the Constitution The Preamble embodies the
fundamentals underlining the structure of the Constitution. It was adopted by the Constituent
Assembly after the entire Constitution has been adopted.
The true functions of the Preamble is to expound the nature and extend and application of
the powers actually confirmed by the Constitution and not substantially to create them. The
Constitution, including the Preamble, must be read as a whole and in case of doubt interpreted
consistent with its basic structure to promote the great objectives stated in the preamble. But the
Preamble can neither be regarded as the source of any substantive power nor as a source of any
prohibition or limitation.

D. Headings
The view is now settled that the Headings or Titles prefixed to sections or group of
sections can be referred to in construing an Act of the Legislature. But conflicting opinions have
been expressed on the question as to what weight should be attached to the headings. A
Heading•, according to one view, is to be regarded as giving the key to the interpretation of the

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clauses ranged under it, unless the wording is inconsistent with such interpretation; and so the
headings might be treated as preambles to the provisions following them.

E. Marginal Notes
In the older statutes marginal notes were not inserted by the legislature and hence were
not part of the statute and could not be referred to for the purpose of construing the statute. If
they are also enacted by the legislature they can be referred to for the purpose of interpretation.
In the case of the Indian Constitution, the marginal notes have been enacted by the Constituent
Assembly and hence they may be referred to for interpreting the Articles of the Constitution. If
the words used in the enactment are clear and unambiguous, the marginal note cannot control the
meaning, but in case of ambiguity or doubt, the marginal note may be referred to.

F. Punctuation
Punctuation means to mark with points and to make points with usual stops. It is the art
of dividing sentences by point or mark. Is the Court entitled to use punctuation also while
interpreting the statutes? Punctuation is considered as a minor element in the construction of
statutes.

G. Illustrations
Illustrations appended to a section from part of the statute and although forming no part
of the section, are of relevance and value in the construction of the text of the section and they
should not be readily rejected as repugnant to the section. It would be the very last resort of
construction to make this assumption. The great usefulness of the Illustrations which have,
although not part of the sections, been expressly furnished by the Legislature as helpful in the
working and application of the statute, should not be thus impaired.

H. Definition Section
These do not take away the ordinary and natural meaning of the words, but as used: (i) to
extend the meaning of a word to include or cover something, which would not normally be

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covered or included; and (ii) to interpret ambiguous words and words which are not plain or
clear.

I. Proviso
The proper function of a proviso is to except and to deal with a case which would
otherwise fall within the general language of the main enactment and its effect is confined to that
case. It is a qualification of the preceding enactment which is expressed in terms too general to
be quite accurate. As a general rule, a proviso is added to an enactment to qualify or create an
exception to what is in the enactment and ordinarily, a proviso is not interpreted as stating a
general rule. Normally, a proviso does not travel beyond the provision to which it is a proviso. It
craves out an exception to the main provision to which it has been enacted as a proviso and to no
other.

J. Explanation
The object of an Explanation to a statutory provision is –
1. to explanation the meaning and intendment of the Act itself,
2. where there is any obscurity or vagueness in the main enactment, to clarify the same so as to
make it consistent with the dominant object which it seems to subserve,
3. to provide an additional support to the dominant object of the Act in order to make it meaningful
and purposeful,
4. an Explanation cannot in any way interfere with or change the enactment or any part thereof but
where some gap is left which is relevant for the purpose of the Explanation, in order to suppress
the mischief and advance the object of the Act it can help or assist the court in interpreting the
true purport and intendment of the enactment, and
5. it cannot, however, take away a statutory right with which any person under a statute has been
clothed or set at naught the working of an Act by becoming an hindrance in the interpretation of
the same.

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EXTERNAL AIDS TO CONSTRUCTION

Introduction
When internal aids are not adequate, court has to take recourse to External aids. External Aids
may be parliamentary material, historical background, reports of a committee or a
commission, official statement, dictionary meanings, foreign decisions, etc. In Prabhakar
Rao and others v. State of A.P. and others 17, O. Chennappa, Reddy J. has observed : Where
internal aids are not forthcoming, we can always have recourse to external aids to discover the
object of the legislation. External aids are not ruled out. This is now a well settled principle of
modern statutory construction.•

A. Parliamentary History, Historical Facts and Surrounding Circumstances

Historical setting cannot be used as an aid if the words are plain and clear. If the
wordings are ambiguous, the historical setting may be considered in order to arrive at the proper
construction. Historical setting covers parliamentary history, historical facts, statement of objects
and reasons, report of expert committees. Recently, the Supreme Court in R. Chaudhuri v
State of Punjab and others18, has stated that it is a settled position that debates in the
Constituent Assembly may be relied upon as an aid to interpret a Constitutional provision
because it is the function of the Court to find out the intention of the framers of the Constitution.

B. Social, Political and Economic Developments and Scientific Inventions

A Statute must be interpreted to include circumstances or situations which were unknown
or did not exist at the time of enactment of the statute. Any relevant changes in the social
conditions and technology should be given due weightage. Courts should take into account all
these developments while construing statutory provisions.

17
AIR 1986 SC 120
18
(2001) 7 SCC 126 [4]

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In P. Gupta v. Union of India19, it was stated – The interpretation of every statutory

provision must keep pace with changing concepts and values and it must, to the extent to which
its language permits or rather does not prohibit, suffer adjustments through judicial interpretation
so as to accord with the requirement of the fast changing society which is undergoing rapid
social and economic transformation

C. Reference to Other Statutes:

In case where two Acts have to be read together, then each part of every act has to be
construed as if contained in one composite Act. However, if there is some clear discrepancy then
the latter Act would modify the earlier. Where a single provision of one Act has to be read or
added in another, then it has to be read in the sense in which it was originally construed in the
first Act. In this way the whole of the first Act can be mentioned or referred in the second Act
even though only a provision of the first one was adopted.
In case where an old Act has been repealed, it loses its operative force. Nevertheless,
such a repealed part may still be taken into account for construing the unrepealed part. For the
purpose of interpretation or construction of a statutory provision, courts can refer to or can take
help of other statutes. It is also known as statutory aids. The General Clauses Act, 1897 is an
example of statutory aid. The application of this rule of construction has the merit of avoiding
any contradiction between a series of statutes dealing with the same subject, it allows the use of
an earlier statute to throw light on the meaning of a phrase used in a later statute in the same
context.
On the same logic when words in an earlier statute have received an authoritative
exposition by a superior court, use of same words in similar context in a later statute will give
rise to a presumption that the legislature intends that the same interpretation should be followed
for construction of those words in the later statute.

D. Dictionaries
When a word is not defined in the statute itself, it is permissible to refer to dictionaries to
find out the general sense in which that word is understood in common parlance. However, in the

19
AIR 1982 SC 149

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selection of one out of the various meanings of a word, regard must always be had to the scheme,
context and legislative history.

E. Judicial Decisions:
When judicial pronouncements are been taken as reference it should be taken into note
that the decisions referred are Indian, if they are foreign it should be ensured that such a foreign
country follows the same system of jurisprudence as ours and that these decisions have been
taken in the ground of the same law as ours. These foreign decisions have persuasive value only
and are not binding on Indian courts and where guidance is available from binding Indian
decisions; reference to foreign decisions is of no use.

F. Other Materials
Similarly, Supreme Court used information available on internet for the purpose of
interpretation of statutory provision in Ramlal v. State of Rajasthan20. Courts also refer
passages and materials from text books and articles and papers published in the journals. These
external aids are very useful tools not only for the proper and correct interpretation or
construction of statutory provision, but also for understanding the object of the statute, the
mischief sought to be remedied by it, circumstances in which it was enacted and many other
relevant matters. In the absence of the admissibility of these external aids, sometimes court may
not be in a position to do justice in a case.

20
(2001) 1 SCC 175

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 LAW MAKING IN INDIAN POLITY AND STATUTORY INTERPRETATION

TOPIC NO 6
CLASSIFICATION OF STATUES AND SUBJECT WISE
INTERPRETATION

Principles of Constitutional Interpretation

Introduction
The letters of the constitution are fairly static and not very easy to change but the laws enacted
by the legislature reflect the current state of people and are very dynamic. To ensure that the new
laws are consistent with the basic structure of the constitution, the constitution must be
interpreted in a broad and liberal manner giving effect to all its parts and the presumption must
be that no conflict or repugnancy was intended by its framers. Applying the same logic, the
provisions relating to fundamental rights have been interpreted broadly and liberally in favor of
the subject. Similarly, various legislative entries mentioned in the Union, State, and Concurrent
list have been construed liberally and widely. There are basically three types of interpretation of
the constitution.
 Historical interpretation
Ambiguities and uncertainties while interpreting the constitutional provisions can be clarified
by referring to earlier interpretative decisions.
 Contemporary interpretation
The Constitution must be interpreted in the light of the present scenario. The situation and
circumstances prevalent today must be considered.
 Harmonious Construction
It is a cardinal rule of construction that when there are in a statute two provisions which are in
such conflict with each other, that both of them cannot stand together, they should possibly be so
interpreted that effect can be given to both. And that a construction which renders either of them
inoperative and useless should not be adopted except in the last resort.
The Supreme Court held in Re Kerala Education Bill21 that in deciding the fundamental
rights, the court must consider the directive principles and adopt the principle of harmonious
construction so two possibilities are given effect as much as possible by striking a balance.

21
1959 1 SCR 995

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In Qureshi v. State of Bihar 22, The Supreme Court held that while the state should implement
the directive principles, it should be done in such a way so as not to violate the fundamental
rights.
In Bhatia International v Bulk trading SA23, it was held that if more than one interpretation is
possible for a statute, then the court has to choose the interpretation which depicts the intention
of the legislature.

Interpretation of the preamble of the Constitution

24
The preamble cannot override the provisions of the constitution. In Re Berubari , the
Supreme Court held that the Preamble was not a part of the constitution and therefore it could
not be regarded as a source of any substantive power.
In Keshavananda Bharati’s case25, the Supreme Court rejected the above view and held
the preamble to be a part of the constitution. The constitution must be read in the light of the
preamble. The preamble could be used for the amendment power of the parliament under Art.368
but basic elements cannot be amended.
The 42nd Amendment has inserted the words “Secularism, Socialism, and Integrity” in the
preamble.
General rules of interpretation of the Constitution
1. If the words are clear and unambiguous, they must be given the full effect.
2. The constitution must be read as a whole.
3. Principles of harmonious construction must be applied.
4. The Constitution must be interpreted in a broad and literal sense.
5. The court has to infer the spirit of the Constitution from the language.
6. Internal and External aids may be used while interpreting.
7. The Constitution prevails over other statutes.

22
1958 AIR 731
23
(2003) 5 SCC (Jour) 22
24
AIR 1960 SC 845
25
AIR 1973 SC 1461

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Principles of Constitutional Interpretation

The following principles have frequently been discussed by the courts while interpreting the
Constitution:
1. Principle of colourable legislation
2. Principle of pith and substance
3. Principle of eclipse
4. Principle of Severability
5. Principle of territorial nexus
6. Principle of implied powers

Principle of Colourable Legislation

The doctrine of colourability is the idea that when the legislature wants to do something
that it cannot do within the constraints of the constitution, it colours the law with a substitute
purpose which will still allow it to accomplish its original goal.
Maxim: “Quando aliquid prohibetur ex directo, prohibetur et per obliqum” which
means what cannot be done directly cannot also be done indirectly.
The rule relates to the question of legislative competence to enact a law. Colourable
Legislation does not involve the question of bonafides or malfides. A legislative transgression
may be patent, manifest or direct or may be disguised, covert or indirect. It is also applied to the
fraud of Constitution.
In India ‘the doctrine of colourable legislation’ signifies only a limitation of the law-
making power of the legislature. It comes into picture while the legislature purporting to act
within its power but in reality, it has transgressed those powers. So the doctrine becomes
applicable whenever legislation seeks to do in an indirect manner what it cannot do directly. If
the impugned legislation falls within the competence of legislature, the question of doing
something indirectly which cannot be done directly does not arise.
In our Constitution, this doctrine is usually applied to Article 246 which has demarcated
the Legislative competence of the Parliament and the State Legislative Assemblies by outlining
the different subjects under list I for the Union, List II for the States and List III for the both as
mentioned in the seventh schedule.

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This doctrine comes into play when a legislature does not possess the power to make law
upon a particular subject but nonetheless indirectly makes one. By applying this principle the
fate of the Impugned Legislation is decided.

Principle of pith and substance

Pith means ‘true nature’ or essence of something’ and substance means ‘the most
important or essential part of something’. The basic purpose of this doctrine is to determine
under which head of power or field i.e. under which list (given in the seventh schedule) a given
piece of legislation falls.
Union & State Legislatures are supreme within their respective fields. They should not
encroach/ trespass into the field reserved to the other. If a law passed by one trespass upon the
field assigned to the other—the Court by applying Pith & Substance doctrine, resolve the
difficulty &declare whether the legislature concerned was competent to make the law.
If the pith & substance of the law (i.e. the true object of the legislation) relates to a matter
within the competence of the legislature which enacted it, it should be held intra vires—though
the legislature might incidentally trespass into matters, not within its competence. The true
character of the legislation can be ascertained by having regard—to the enactment as a whole —
to its object – to the scope and effect of its provisions.
Case: State of Bombay v. FN Balsara 26
Bombay Prohibition Act, 1949 which prohibited sale & possession of liquors in the State,
was challenged on the ground that it incidentally encroached upon Imports & Exports of liquors
across custom frontier – a Central subject. It was contended that the prohibition, purchase, use,
possession, and sale of liquor will affect its import. The court held that act valid because the pith
& substance fell under Entry 8 of State List and not under Entry 41 of Union List.

Principle of eclipse
The Doctrine of Eclipse says that any law inconsistent with Fundamental Rights is not
invalid. It is not dead totally but overshadowed by the fundamental right. The inconsistency
(conflict) can be removed by a constitutional amendment to the relevant fundamental right so
that eclipse vanishes and the entire law becomes valid.

26
AIR 1951 SC 318

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All laws in force in India before the commencement of the Constitution shall be void in
so far they are inconsistent with the provisions of the Constitution. Any law existing before the
commencement of the Constitution and inconsistent with the provision of Constitution becomes
inoperative on commencement of Constitution. But the law does not become dead. The law
remains a valid law in order to determine any question of law incurred before the
commencement of the Constitution. An existing law only becomes eclipsed to the extent it
comes under the shadow of the FR.
Case: Keshavan Madhava Menon v. The State of Bombay 27
In this case, the law in question was an existing law at the time when the Constitution
came into force. That existing law imposed on the exercise of the right guaranteed to the citizens
of India by article 19(1)(g) restrictions which could not be justified as reasonable under clause
(6) as it then stood and consequently under article 13(1)28 that existing law became void “to the
extent of such inconsistency”.
The court said that the law became void not in to or for all purposes or for all times or for
all persons but only “to the extent of such inconsistency”, that is to say, to the extent it
became inconsistent with the provisions of Part III which conferred the fundamental rights
of the citizens.
Thus the Doctrine of Eclipse provides for the validation of Pre-Constitution Laws that
violate fundamental rights upon the premise that such laws are not null and void ab initio but
become unenforceable only to the extent of such inconsistency with the fundamental rights. If
any subsequent amendment to the Constitution removes the inconsistency or the conflict of the
existing law with the fundamental rights, then the Eclipse vanishes and that particular law again
becomes active again.

27
[1961] S.C.R. 288
28
Article 13 (1) – All laws in force in the territory of India immediately before the commencement of this
Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such
inconsistency, be void.

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Principle of Severability
The doctrine of severability provides that if an enactment cannot be saved by construing
it consistent with its constitutionality, it may be seen whether it can be partly saved. Article 13 of
the Constitution of India provides for Doctrine of severability which states that-
All laws in force in India before the commencement of Constitution shall be void in so far they
are inconsistent with the provisions of the Constitution.
The State shall not make any law which takes away/ shortens the rights conferred by Part
III of the Constitution i.e. Fundamental Rights. Any law made in contravention of the provisions
of the Constitution shall be void and invalid. The invalid part shall be severed and declared
invalid if it is really severable. (That is, if the part which is not severed can meaningfully exist
without the severed part.) Sometimes the valid and invalid parts of the Act are so mixed up that
they cannot be separated from each other. In such cases, the entire Act will be invalid.
Case: AK Gopalan v. State of Madras 29
In this case, the Supreme Court said that in case of repugnancy to the Constitution, only
the repugnant provision of the impugned Act will be void and not the whole of it, and every
attempt should be made to save as much as possible of the Act. If the omission of the invalid part
will not change the nature or the structure of the object of the legislature, it is severable. It was
held that except Section 14 all other sections of the Preventive Detention Act, 1950 were valid,
and since Section 14 could be severed from the rest of the Act, the detention of the petitioner was
not illegal.

Principle of Territorial Nexus

Article 245 (2) of the Constitution of India makes it amply clear that ‘No law made by
Parliament shall be deemed to be invalid on the ground that it would have extra-territorial
operation’. Thus a legislation cannot be questioned on the ground that it has extra-territorial
operation. It is well-established that the Courts of our country must enforce the law with the
machinery available to them, and they are not entitled to question the authority of the Legislature
in making a law which is extra-territorial. The extra-territorial operation does not invalidate a
law. But some nexus with India may still be necessary in some of the cases such as those
involving taxation statutes.

29
AIR 1950 SC 27

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The Doctrine of Territorial Nexus can be invoked under the following circumstances-
 Whether a particular state has extra-territorial operation.
 If there is a territorial nexus between the subject- matter of the Act and the state making
the law
It signifies that the object to which the law applies need not be physically located within the
territorial boundaries of the state, but must have a sufficient territorial connection with the state.
A state may levy a tax on a person, property, object or transaction not only when it is situated
within its territorial limits, but also when it has a sufficient and real territorial connection with it.
Nexus test was applied to the state legislation also
Case: Tata Iron & Steel Company v. Bihar State 30
The State of Bihar passed a Sales Tax Act for levy of sales tax whether the sale was
concluded within the state or outside if the goods were produced, found and manufactured in the
state. The court held there was sufficient territorial nexus and upheld the Act as valid. Whether
there is sufficient nexus between the law and the object sought to be taxed will depend upon the
facts and circumstances of a particular case.
It was pointed out that sufficiency of the territorial connection involved a consideration
of two elements- a) the connection must be real and not illusory b) the liability sought to be
imposed must be pertinent to that connection.
Principle of Implied powers
Laws which are necessary and proper for the execution of the power or incidental to such
power are called implied powers and these laws are presumed to be constitutional. In other
words, constitutional powers are granted in general terms out of which implied powers must
necessarily arise. Likewise, constitutional restraints are put in general terms out of which implied
restraints must also necessarily establish.
This is a Legal principle which states that, in general, the rights and duties of a legislative
body or organization are determined from its functions and purposes as specified in its
constitution or charter and developed in practice.
Conclusion
The Constitution is the supreme and fundamental law of our country. Since it is written in
the form of a statute, the general principles of statutory interpretation are applicable to the

30
AIR 1958 SC 482

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interpretation of the constitution as well. It is important to note that the constitution itself
endorses the general principles of interpretation through Article 367(1), which states that unless
the context otherwise requires, the General Clauses Act, 1897 shall apply for the interpretation of
this constitution as it applies to the interpretation of an act of the legislature.

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INTERPRETATION OF PENAL STATUTES

INTRODUCTION

In a penal law if there appears to be a reasonable dubiety or ambiguity, it shall be decided

in favour of the person who would be liable to the penalisation. If a penal provision fairly be so
construed as to avoid the punishment, it must be so interpreted. If there can be two reasonable
interpretations of a penal provision, the more lenient should be made applicable.

Punishment can be meted to one only if the plain words extension of the meaning of the
word is allowable. A penalty cannot be imposed on the basis that the object of the statute so
desired. According to Maxwell [1], “the prerequisite of express language for the creation of an
offence, in interpreting strictly words setting out the elements of an offence in requiring the
fulfilment to the letter of statutory conditions precedent to the infliction of punishment; and in
insisting on the strict observance of technical provisions concerning criminal procedure and
jurisdiction.”

Unless the words of a statute clearly made an act criminal, it shall not be construed as criminal. If
there is any ambiguity in the words which set out the elements of an act or omission declared to
be an offence, so that it is doubtful whether the act or omission falls within the statutory words,
the ambiguity will be resolved in favour of the person charged.[2] The court will inflict
punishment on a person only when the circumstances of the case fall unambiguously fall under
the letter of the law. Legislation which deals with the jurisdiction and the procedure relation to
imposition of the penalties will be strictly construed. Where certain procedural requirements
have been laid down by a statute to be completed in a statute dealing with punishments, the court
is duty bound to see that all these requirements have been complied with before sentencing the
accused. In case of any doubt the benefit has to go to the accused even up to the extent of
acquitting him on some technical grounds.[3]Penal provision cannot be extended by implication
to a particular case or circumstances. The rule exhibits a preference for the liberty of the subject
and in a case of ambiguity enables the court to resolve the doubt in favour of the subject and

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against the Legislature which has failed to express itself clearly, but this rule is now-a-days of
limited application.[4] The rule was originally evolved to mitigate the rigours of monstrous
sentences of trivial offences and although the necessity and that strictness have now vanished,
the difference in approach made to penal statute as against any other statute still persists.[5]

GENERAL RULE

If a statute laid a mandatory duty but provided no mode for enforcing it, the presumption in
ancient days was that the person in breach of the duty could be made liable for the offence of
contempt of the statute.[6] This rule of construction is obsolete and now has no application to a
modern statute. Clear language is now needed to create a crime. “A penal provision must be
definite”[7]. It is a basic rule of legal jurisprudence that than an enactment is void for vagueness
if its prohibitions are not clearly defined.[8] Pollock, CB said: “whether there be any difference
left between a criminal statute and any other statute not creating offence, I should say that in
criminal statute you must be quite sure that the offence charged is within the letter of the law.”[9]

In the case of Feroze N. Dotivalaz v. P.M Wadhwani and co.,[10] this court stated: “Generally,
ordinary meaning is to be assigned to any word or phrase used or defined in a statute. Therefore,
unless there is any vagueness or ambiguity, no occasion will arise to interpret the term in a
manner which may add something to the meaning of the word which ordinarily does not so mean
by the definition itself, more particularly, where it is a restrictive definition. Unless there are
compelling reasons to do so, meaning of a restrictive and exhaustive definition would not be
expanded or made extensive to embrace things which are strictly not within the meaning of the
word as defined.”

In Anup Bhushan Vohra v. Registrar General, High Court of Judicature at Calcutta on (16
September, 2011)[11] the Apex Court held that the contempt proceedings being quasi-criminal in
nature, burden and standard of proof is the same as required in criminal cases. The charges have
to be framed as per the statutory rules framed for the purpose and proved beyond reasonable
doubt keeping in mind that the alleged contemnor is entitled to the benefit of doubt. Law does
not permit imposing any punishment in contempt proceedings on mere probabilities; equally, the
court cannot punish the alleged contemnor without any foundation merely on conjectures and

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surmises. As observed above, the contempt proceeding being quasi-criminal in nature require
strict adherence to the procedure prescribed under the rules applicable in such proceedings.

A man should not be goaled on ambiguity. Lord Esher, MR in formulating “the settled rule of
construction of penal sections” observed “if there is a reasonable interpretation which will avoid
the penalty in any particular case we must adopt that construction. If there are two reasonable
constructions then we must give the lenient one.[12] The rule has been stated by Mahajan, CJI in
similar words: “If two possible and reasonable constructions can be put upon a penal provision,
the court must lean towards the construction which exempts the subject from penalty rather than
the one which imposes penalty. It is not competent to the court to stretch the meaning of an
expression used by the legislature in order to carry out the intention of the legislature.”[13]

A Three-Judge Bench of this Court in the case of The Assistant Commissioner, Assessment-II,
Bangalore and Ors. v. Valliappa Textiles Ltd. and Ors.[14], laid down:- “...Though Javali (supra)
also refers to the general principles of interpretation of statute the rule of interpretation of
criminal statutes is altogether a different cup of tea. It is not open to the court to add something
to or read something in the statute on the basis of some supposed intendment of the statute. It is
not the function of this Court to supply the casus omissus, if there be one. As long as the
presumption of innocence of the accused prevails in this country, the benefit of any lacuna or
casus omissus must be given to the accused. The job of plugging the loopholes must strictly be
left to the legislature and not assumed by the court.

So when a statute dealing with criminal offence impinging upon the liberty of citizens, a
loophole is found, it is not for judges to cure it, for it is dangerous to derogate from the principle
that a citizen has a right to claim that howsoever his conduct may seem to deserve punishment,
he should not be convicted unless that conduct falls fairly within definition of crime of which he
is charged.[15] The fact that an enactment is a penal provision is in itself a reason for hesitating
before ascribing to phrases used in the meaning broader than that they would ordinarily bear.[16]
There is all the more reason to construe strictly a drastic penal statute which deals with crimes of
aggravated nature which could not be effectively controlled under the ordinary criminal law[17].

While interpreting penal statutes, it is clear that any reasoning which is based on the substance of
the transaction has to be discarded.[18]It is the duty of the courts to apply the purpose enshrined

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in the unambiguous language used by the Legislature irrespective of the fact that the statute to be
interpreted is a penal law.[19] The courts are not allowed to give a wider meaning when the
legislature has already provided a comprehensive provision in the statute itself.

In a very recent matter of State of Rajasthan v. Vinod Kumar(on 18 May, 2012)[20] the Apex
Court has observed: - “awarding punishment lesser than the minimum prescribed under Section
376 IPC, is an exception to the general rule. Exception clause is to be invoked only in
exceptional circumstances where the conditions incorporated in the exception clause itself exist.
It is a settled legal proposition that exception clause is always required to be strictly interpreted
even if there is a hardship to any individual. Exception is provided with the object of taking it out
of the scope of the basic law and what is included in it and what legislature desired to be
excluded. The natural presumption in law is that but for the proviso, the enacting part of the
Section would have included the subject matter of the proviso, the enacting part should be
generally given such a construction which would make the exceptions carved out by the proviso
necessary and a construction which would make the exceptions unnecessary and redundant
should be avoided. Proviso is used to remove special cases from the general enactment and
provide for them separately. Proviso may change the very concept of the intendment of the
enactment by insisting on certain mandatory conditions to be fulfilled in order to make the
enactment workable.[21]”

In this matter the sentence of the respondents was reduced by the Hon’ble Rajasthan High Court
to a lesser punishment than that prescribed under Section 376 as mandatory unless the exception
is strictly complied with. The Apex Court observed that awarding punishment lesser than the
minimum sentence of 7 years was permissible only for adequate and special reasons. However,
no such reasons have been recorded by the court for doing so, and thus, the court failed to ensure
compliance of such mandatory requirement but awarded the punishment lesser than the
minimum prescribed under the IPC. Such an order is violative of the mandatory requirement of
law and has defeated the legislative mandate. Deciding the case in such a casual manner reduces
the criminal justice delivery system to mockery.

PURPOSIVE INTERPRETATION APPROACH

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It is not necessary that courts must always favour the interpretation which is favourable to the
accused and not the prosecution but it may also chose to go for the interpretation which is
consistent with the object provided in the law. In State of Maharashtra v. Tapas D. Neogy[22]
the expression ‘any property’ in section 102 of Cr.P.C. was interpreted to be inclusive of a ‘bank
account’ and hence a police officer who was investigating the matter was justified in seizing the
same. This principle was first explained by James, L.J. who stated: “No doubt all penal statutes
are to be construed strictly, that is to say that the court must see that the thing charged as an
offence is within the plain meaning of the word used, and must not strain the words on any
notion that there has been a slip; that there has been a casus omissus; that the thing is so clearly
within the mischief that it must have been included if thought of.

In the case of Union of India v. Harsoli Devi[23], a Constitution Bench of this court laid down: -
“Before we embark upon an inquiry as to what would be the correct interpretation of Section 28-
A, we think it appropriate to bear in mind certain basic principles of interpretation of statute. The
rule stated by Tindal, CJ in Sussex Peerage case, (1844) 11 Cl & p.85, still holds the field. The
aforesaid rule is to the effect: “If the words of the statute are in themselves precise and
unambiguous, then no more can be necessary than to expound those words in their natural and
ordinary sense. The words themselves do alone in such cases best declare the intent of the
lawgiver.””

It is a cardinal principle of construction of statute that when language of the statute is plain and
unambiguous, then the court must give effect to the words used in the statute and it would not be
open to the courts to adopt a hypothetical construction on the ground that such construction is
more consistent with the alleged object and policy of the Act.

In Kirkness v. John Hudson & Co. Ltd.[24], Lord Reid pointed out as to what is the meaning of
‘ambiguous’ and held that – “a provision is not ambiguous merely because it contains a word
which in different context is capable of different meanings and it would be hard to find anywhere
a sentence of any length which does not contain such a word. A provision is, in my judgment,
ambiguous only if it contains a word or phrase which in that particular context is capable of
having more than one meaning.” It is no doubt true mat if on going through the plain meaning of
the language of statutes, it leads to anomalies, injustices and absurdities, then the court may look

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into the purpose for which the statute has been brought and would try to give a meaning, which
would adhere to the purpose of the statute.

Although, the person charged has a right to say that the thing charged although within the words,
is not within the spirit of enactment. But where the thing is brought within the words, and within
the spirit, there a penal enactment is to be construed, like any other instrument, according to the
fair commonsense meaning of the language used, and the court is not to find or make any doubt
or ambiguity in the language of the penal statute, where such a doubt or ambiguity would clearly
not be found or made in the same language in any other enactment.”[25] Subbarao, J., has
observed: “the Act (Prevention of Corruption Act, 1947) was brought in to purify public
administration.

When the legislature used the comprehensive terminology- to achieve the said purpose, it would
be appropriate not to limit the content by construction when particularly the spirit of the statute is
in accord with the words used there.”[26] On the same lines Hon’ble Supreme Court had widely
interpreted the Food Adulteration Act, 1954, while expressing the strong disapproval of the
narrow approach of construction to ensure that the adulterators do not exploit the loopholes in
the Act.[27] Similarly, such pedantic interpretation has not been given in the cases relating to
section 498A of Indian Penal Code[28], section 12(2) of Foreign Exchange Regulation Act,
1947[29] etc. The laws which have been framed for supporting the cause of offences against
women have to be sternly implemented to set an example before the others which may deter the
prospective criminals.[30]

SUPPRESSION OF THE MISCHIEF

The language of the penal statute can also be interpreted in a manner which suppresses the
lacuna therein and to sabotage the mischief in consonance with the Heydon’s Case.[31] For
instance in Ganga Hire Purchase Pvt. Ltd. Vs. State of Punjab[32], while interpreting the section
60(3) of Narcotic Drugs and Psychotropic Substances Act, 1985, the word ‘owner’ was given a
wider meaning for the purpose of confiscation of the vehicle used in furtherance of the offence
mentioned therein i.e. inclusive of the registered owner where the vehicle was purchased under a
hire purchase agreement when all the instalments were not paid by him.

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In the matter of Manjit Singh @ Mange vs C.B.I.[33]( 25 January 2011), Hon’ble Supreme Court
discussed the interpretation of Terrorist and Disruptive Activities (Prevention) Act, 1987 in light
of the aforesaid principle. It was argued by Senior Advocate Mr. K.T.S. Tulsi, that prior approval
was required to be taken from the Superintendent of Police of the District, as required under
Section 20-A[34] of the TADA Act, to try the accused for the offences under the TADA Act and
the Superintendent of Police, CBI was not the competent authority to give such permission.
Learned senior counsel submitted that the confessional statement of the co- accused because no
prior approval from the prescribed authority, as required under Section 20A of the TADA Act,
had been obtained. He also submitted that the penal provisions require to be strictly construed.
Shri P.P. Malhotra, learned Additional Solicitor General, submitted that when the investigation is
transferred to the CBI, with the consent of the State, the CBI takes over further investigation of
the case. Therefore, Superintendent of Police, CBI, was competent to record the confession made
by a person and the same is admissible in the trial of such person for an offence under the TADA
Act. He further submitted that the confessional statement of co-accused recorded before S.P.,
C.B.I., was admissible in evidence vide Section 15 of the TADA Act, which provides for the
recording of the confessional statements before the police officer, not lower in the rank than
Superintendent of Police, and it is made admissible even against co-accused, abettor or
conspirator and the bar under the Evidence Act and Criminal Procedure Code will not come into
play.

The Hon’ble Court observed that confessional statement is a substantive piece of evidence and
can be used against the co- accused by following the interpretation provided in S.N. Dube vs.
N.B. Bhoir[35], where the Apex Court observed that “Section 15 of the TADA Act is an
important departure from the ordinary law and must receive that interpretation which would
achieve the object of that provision and not frustrate or truncate it and that correct legal position
is that a confession recorded under Section 15 of the TADA Act is a substantive piece of
evidence and can be used against a co- accused also, if held to be admissible, voluntary and
believable.”

Mr. Tulsi used various judgments of the Apex Court including Dadi Jagganadhan v. Jammulu
Ramulu and Ors.[36], where a Constitution Bench of this court observed: - “...The settled
principles of interpretation are that the Court must proceed on the assumption that the legislature

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did not make a mistake and that it did what it intended to do. The Court must, as far as possible,
adopt a construction which will carry out the obvious intention of the legislature. Undoubtedly if
there is a defect or an omission in the words used by the legislature, the Court would not go to its
aid to correct or make up the deficiency. The Court could not add words to a statute or read
words into it which are not there, especially when the literal reading produces an intelligible
result. The Court cannot aid the legislature's defective phrasing of an Act, or add and mend, and,
by construction, make up deficiencies which are there.The learned counsel contended that under
Section 20A of the TADA, the sanction of the District Superintendent of Police is required to be
obtained before the police record any information about the commission of an offence under the
TADA. Since the same has not been obtained, the conviction of the accused cannot be sustained.
In the instant case, according to the learned counsel, the sanction was obtained from the S.P.,
C.B.I.

But the Hon’ble Court held that the phrase “District SP” has been used in order to take the
sanction of a senior officer of the said district, when the prosecution wants to record any
commission of a offence under the Act, the reason appears to be that the Superintendent of
Police of the District is fully aware of necessity to initiate the proceedings under the stringent
criminal law like the TADA Act. In the instant case, the State Government, in exercise of the
power conferred by Section 3 of the Delhi Police Special Establishment Act, 1946, has handed
over the investigation to CBI. The Hon’ble Court was inclined to hold that in matters concerning
national security, as is the case of terrorist acts, the Centre and an autonomous body functioning
under it would be better equipped to handle such cases. Therefore, `prior approval' by the SP of
CBI would adequately satisfy the requirements under Section 20A (1).

Similarly in the leading matter of Reema Aggarwal v. Anupam Aggarwal[37], a broader

meaning was attributed to the application of sections 304B and 498A of the Indian Penal Code,
in light of the broader purpose which was sought to be achieved through these provisions and the
mischief which was required to be cured. It was also made applicable to the case where the
legitimacy of the marriage itself was in question to bring the accused within the purview of the
word ‘husband’ as used in the said provisions.

In Abhay Singh Chautala vs C.B.I. (on 4 July, 2011)[38] the learned Senior Counsel Shri Mukul
Rohtagi as well as Shri U.U. Lalit arguing for the appellants, urged that on the day when the

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charges were framed or on any date when the cognizance was taken, both the appellants were
admittedly public servants and, therefore, under the plain language of Section 19 (1) of The
Prevention of Corruption Act, the Court could not have taken cognizance unless there was a
sanction from the appropriate government. The learned senior counsel analyzed the whole
Section closely and urged that in the absence of a sanction, the cognizance of the offences under
the Prevention of Corruption Act could not have been taken. It was also urged that a literal
interpretation is a must, particularly, to sub- Section (1) of Section 19. But the Apex Court
observed- : “...we, therefore, reject the theory of litera regis while interpreting Section 19(1)...
However, as per the interpretation, it excludes a person who has abused some other office than
the one which he is holding on the date of taking cognizance, by necessary implication. Once
that is clear, the necessity of the literal interpretation would not be there in the present case we
specifically hold that giving the literal interpretation to the Section would lead to absurdity and
some unwanted results ... hold that the appellants in both the appeals had abused entirely
different office or offices than the one which they were holding on the date on which cognizance
was taken and, therefore, there was no necessity of sanction under Section 19.”

CONCLUSION

After the detailed analysis of various methods of interpreting a penal statute in the paper we can
broadly categorize the method of interpretation by concluding that firstly the basic rule of
interpreting such laws is to strictly adhere to the language of the statute since it is the will of the
legislature and the court should restrain itself from stretching the meaning of the words causing
unnecessary hardships to the subjects. Secondly it must be always kept in mind that what is the
purpose for which the enactment seeks to achieve and if a strict adherence is done will it be able
to achieve that purpose or object.Thirdly and lastly whether by such an interpretation the
mischief which was sought to be suppressed by the penal law was suppressed and if not then it is
the duty of the court to ensure that it is done and just because of the Legislature’s omission, the
injustice to the society should not be administered.

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________________________________________

[1] Interpretation of Statute, Twelfth edition, pp. 239-240

[2] N.K. Jain v. C.K. Shah, AIR 1991SC 1289.

[3] T. Bhattacharya, Interpretaion of Statutes, V Ed., Cental Law Agency, 2003.

[4] G P Singh, Principles of Statutory Interpretation, XIII Ed., Lexis Nexis Butterwoths
Wadhwa, 2012, p. 845.

[5] Ibid.

[6] R. v. Horseferry Road Magistrate’s Court, (1986) 2 All ER 666.

[7] State of Kerela v. UNNI AIR 2007 SC 819.

[8] Kartar Singh v. State of Punjab AIR 1994 SC 569.

[9] A.G. v. Sillem, (1864) 33 LJ Ex 92, p.110.

[10] (2003) 1 SCC 14.

[11] http://indiankanoon.org/doc/625813/.

[12] Tucker and Sons v. Priester (1887) 19 QBD 629.

[13] Tolaram v. State of Bombay, AIR 1954 SC 496.

[14] AIR 2004 SC 86.

[15] Spicer v. Holt (1976) 3 All ER 71, pp. 78, 79 (HL)

[16] R. v. Cuthbertson (1980) 2 All ER 401, p. 404.

[17] NIranjan Singh Karan Singh Punjabi v. Jitendra Bhimraj Bijia, AIR 1990 SC 1962.

[18] Balaram Kumawat v. Union of India

[19] Thomson v. His Honour Judge Byrne, (1999) 73 ALJR 642.

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[20] http://indiankanoon.org/doc/194417701/.

[21] Commissioner of Central Excise, New Delhi v. Hari Chand Shri Gopal & Ors., (2011) 1
SCC 236.

[22] (1999) 7 SCC 685.

[23] (2002) 7 SCC 273.

[24] 1955 (2) ALL ERa 345.

[25] Dyke v. Elliot (1872) LR 4 PC 184.

[26] M. Narayan Nambiyar v. State of Kerala AIR 1960 SC 1116.

[27] Murlidhar Meghraj Loya v. State of Maharashtra, AIR 1976 SC 1929.

[28] State of Kerela v. M. Verghese, AIR 1987 SC 33.

[29] M.G. Wagh v. Jay Engineering Works Ltd., AIR 1987 SC 670.

[30] K.P.S. Rao v. Yadla Srinivasa Rao AIR 2003 SC 11.

[31] Standard Chartered Bank v. Directorate of Enforcement, (2005) 4 SCC 530.

[32] AIR 2000 SC 499.

[33] http://indiankanoon.org/doc/659925/

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Interpretation of Taxing (Fiscal) Statutes

Should courts interpret laws according to a uniform set of rules, or should they use
different tools for interpreting different statutes? This simple question is increasingly at the heart
of statutory interpretation scholarship and jurisprudence. If the latter position is correct--if
different laws require different interpretive methods--generalizations about statutory
interpretation may be of only limited value and the search for a unified theory of interpretation
may be a misguided quest. But the lure of uniformity remains great, particularly for appellate
courts, which must interpret a multiplicity of statutes and need at least some guiding principles to
do so. This project is being divided into two parts, the first part deals with the interpretation of
tax statutes & the second part deals with the interpretation of tax treaties

THE THREE basic rules for the interpretation of statutes are the primary rule of
construction, secondary rule of construction and the rule of harmonious construction. Primary
rule of construction:

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The steps to be followed while applying this rule are:

* Read and analyze a section

* Ascertain the primary meaning of the words used

* Ascertain the grammatical, literal and plain meaning of the words used in the section.

Maxwell terms this rule as the Golden Rule. Secondary rule of construction:

This rule is concerned with the application of the eleven canons of theory of
interpretation of statutes. These are: The preamble to a statute is a part of the statute and should
be read together with the object of the Act, title, marginal notes and legislative history and
cannot control or restrict the operation of a main section but they can be used as a guiding factor
to know the general drift of a section.

The main part of the section lays down the substantive law and reflects the intention of
Parliament. For example, section 12 of the Companies Act, 1956 provides for the mode and
manner of forming an incorporated company by laying down a detailed procedure. A proviso is
appended to a main section which restricts the main section. It cannot travel beyond the domain
of main section to which it is appended.

In the case of CIT v Indo Mercantile Bank, the Supreme Court has explained, "the
territory of a proviso, therefore, is to carve out an explanation to the main enactment and exclude
something which otherwise would have been under the section."

The definition defines the meaning of the words used. It could be a 'mean type' or an
'inclusive type'. If when defining, the word 'means' is used and the word is restricted to the scope
indicated in the definition, it is the 'mean type'.

An example of this kind of definition is found in the definition of "company" given in

section 2 (17) of the Income Tax Act, 1961 (I-T Act). The 'inclusive type' is when defining, the
word 'includes' is used. It can include items other than those enumerated in the section. Example
of this type is found in the definition of 'person' given in section 2(31) of the I-T Act.

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An explanation section does not enlarge the scope of the main section but explains it. The
I-T Act contains a plethora of explanations. An example is the four explanations to section 43B,
which provides that certain deductions are to be allowed only on actual payment. In the case of a
conflict between a special provision and a general provision, then the special section would
override the general section. A special section confers a special power and a general section
confers a general power.

The striking example of general and special, is found in the definition of `body corporate'
given under section 2(7) of the Companies Act, 1956 and that given for the purposes of section
43A(1). There can be a `deeming fiction, where the Legislature can deem something to be
something else. In the case of CIT v Express News Papers I , the Supreme Court held that-"It
(the deeming clause in section 12 (B) only introduces a limited fiction, namely that the capital
gains accrued will be deemed to be income of previous year, in which the sale was effected. The
fiction does not make them the profits and gains of business." It is well settled that a legal fiction
is limited to the purpose for which it is created and should not be extended beyond its legitimate
fields.

An example of deeming fiction is found in section 115 J of the I-T Act which was
operative for assessment years ?88-89 to ?90-91, where if the company's total income is less than
30 per cent of its book profit, 30 per cent of the book profits deemed to be the total income.
Retrospective operation and prospective operation is another indicator. All statutes are
prospective in nature. But an Act or a particular section can be given retrospective effect by
express statement or by necessary implication.

If the enactment is expressed in language which is fairly capable of either interpretation,

it ought to be constructed as prospective only. It must be borne in mind that the rule regarding
retrospective operation governs substantive sections only and not procedural sections. The
example with regard to retrospective operation of a procedural law was Rule 1 BB of the Wealth
Tax Rules, 1957, laying down the manner of valuation of a house.

The Supreme Court in the case of CWT v Sharvan Kumar Swarup & Sons has held that
Rule 1BB is procedural in nature and, therefore, applicable to all pending proceedings.

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The transforming amendments of substantive sections are always prospective in nature

except where they are made retrospective in operation by specific statement or by necessary
implication. Again, a procedural amendment can be retrospective in operation. Further, the
classificatory amendments are used only in those cases to find out the meaning of earlier
sections.

When there is a provision that has two possible interpretations, the one which casts a
lesser burden on the subject must be adopted. In the case of CIT v M K Vaidya , the Karnataka
High Court held that "...if reasonably two meanings are attributable to a word used in the fiscal
law, the meaning which is more beneficial to the tax payers will be applied, specially it is so,
when the state itself at one point of time clearly acted as if the wider meaning was not
attributable without adding further words". In the case of CIT v New Shorrock Spinning &
Manufacturing, the Bombay High Court held that "the question of accepting the principle of
beneficial interpretation would arise only in case where two views are reasonably possible in the
opinion of the court deciding the point at issue. If this is not the case, the court should not tilt in
favour of the assessee.

Another interpretational canon is reference to the speech in Parliament, at the time of

introduction of the bill and is only permissible when the court finds the provisions of the Act
vague and ambiguous Another tool for interpretation is reference to the memorandum,
explaining the provisions of the Finance Act or a circular issued by a competent authority, like
the Central Board of Direct Taxes. Generally, the memorandum explaining the provisions of the
Act or such circular can not be relied upon for interpreting a particular provision of the Act as
they can not curtail or modify the clear provisions of law.

The statement of objects and reasons in the Bill, can not be relied upon to interpret a
particular provision of the Act. The recent decision of the Karnataka High Court in the case of
Union Home Products v Union of India supports this view.

Rule of harmonious construction: It is true that every statute must be interpreted on the
basis of aforesaid primary and secondary rules of construction.

However, they should not conflict with the principle of harmonious construction. Every
effort should be made to ensure that all the three rules are simultaneously satisfied.

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Maxwell in "Interpretation of Statutes (Twelfth Edition)" states that the words of statute,
when there is doubt about their meaning are to be understood in the sense in which they best
harmonize with the subject of the enactment and the object which the legislature had in view. An
interpretation of fiscal statute which has been reiterated in a recent judgment by the Supreme
Court in the case of Commissioner of Customs v Tullow India Operations Ltd is that no
interpretation should lead to absurd results. It is strange that the Supreme Court had to once
again repeat this fundamental proposition, but this was necessary because a decision by the
commissioner of Customs in this particular case had led to an absurd conclusion. An importer
was denied an exemption because he was not able to produce a certificate, which was necessary
at the time of import. The certificate was, however, produced at a later stage. The Supreme Court
set aside the order of the commissioner of Customs on the ground that it would lead to an absurd
result, besides many other reasons. Even earlier, on a similar issue of how to understand the
expression, at the time of importation, the tribunal had given a decision that if this was
interpreted too

literally, it would lead to absurd results.

The tribunal said at the time of importation literally meant at the time when the ship
entered India. It would lead to an absurd situation since nobody could claim exemption at that
time. The tribunal extended the meaning of at the time of importation to at the time of clearance
of goods. The crux of the matter is that depending on the situation of importation, the meaning
must lead to a practical result and not an absurd situation. The same principle was reiterated by
the Supreme Court in the case of ACC v Commissioner of Customs in this case, the question was
about valuation of a drawing and design. The Supreme Court observed that it would be absurd to
value such articles or similar articles like paintings for the purpose of Customs duty merely on
the basis of the cost of the canvass or the cost of the oil paints.

In another judgment, in CCE v Acer India Ltd. the Supreme Court observed in relation to
the value of operating software that the principle of purposive construction should be adhered to
when a literal meaning may result in absurdity. In the case of TCS v State of Andhra Pradesh ,
where the issue was chargeability of computer software in canned form to sales tax, the Supreme
Court quoted the above judgment of ACC v Commissioner of Customs with approval. In one of
the latest judgments in the case of Compack Pvt Ltd v CCE , the Supreme Court observed in

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relation to availing of Modvat credit that if it was not written very clearly in a notification that
the final product had to be made only or purely from certain inputs, the exemption cannot be
denied because it has used other inputs as well. That sort of interpretation would create an absurd
situation. The Supreme Court, therefore, observed that a notification had to be construed in terms
of the language used, unless the literal meaning led to an anomaly or absurdity. If there is no
such absurdity in the literal interpretation, there is no need to go for the intention or the purpose
of the notification.

The conclusion is that we have to first resort to literal interpretation of the statute or expression.
However, if that leads to an absurd result, we have to look for the intention or the purpose of the
legislation so that the legislation itself does not become invalid. The high courts and the Supreme
Court have always chosen interpretations which do not lead to an anomaly over the one which
leads to an anomaly or an absurdity.

Conclusion:

The interpretation of tax statutes, emphasizing the role of legislative purpose in the interpretive
process. Although conceding the importance of legislative purpose, upon close examination,
most tax cases are--and should be--decided by a practical reason method, balancing text,
legislative history, and practical considerations in a manner not terribly different than that used
to interpret other statutes. The question of specificity is particularly acute for tax statutes.
Scholars have long suggested that the unique features of tax law, including its high level of
detail, frequent revision, and largely self-contained nature, require a special set of interpretive
tools. In particular, scholars have argued that the underlying structure or "purpose" of the Code
may dictate results that are difficult or impossible to reach using non-tax interpretive methods.

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TOPIC NO. 7
OTHER RULES OF INTERPRETATION
What a Legal Maxim is!
A legal maxim can be defined as an established set or principle.
Many of the legal maxims developed are in Latin. This is mainly because most of the legal
maxims were developed in the medieval era in European Countries that used Latin as the
language of law and for the courts.

 Ut Res Magis Valeat Quam Pereat:

The maxim “Ut Res Magis Valeat Quam Pereat” is a rule of construction which
literally means the construction of a rule should give effect to the rule rather than
destroying it .i.e., when there are two constructions possible from a provision, of which
one gives effect to the provision and the other renders the provision inoperative, the
former which gives effect to the provision is adopted and the latter is discarded. It
generally starts with a presumption in favor of constitutionality and prefer a construction
which embarks the statute within the competency of the legislature. But it is to be noted
that when the presumption of constitution fails, then the statutes cannot be rendered valid
or operative accordingly. The landmark case of Indra Sawhney(2000), where the Supreme
Court struck down the state legislation as it was violative of constitution and ultra-vires of
the legislative competency.
 Contemporanea Exposito Est Fortissima In Lege
Meaning Contemporaneous exposition is the best and strongest in law. It is said that
the best exposition of a statute or any other document is that which it has received from
contemporary authority. This maxim has been confirmed by the Apex Court in Desh
Bandhu Gupta v. Delhi Stock Exchange Asson. Ltd. AIR 1979 SC 1049,
1054. Contemporanea exposito is a guide to the interpretation of documents or statutes. It
is one of the important external aids for interpretation. How ever great care must be taken
in its application. When a document was executed between two parties, there intention can
be known by their conduct at the time and after the execution of the instrument.

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Where the words of the deed are ambiguous, the court may call in the acts done under
it as a clue to the intention of the parties. Their acts are the result of usages and practices in
the society. Therefore their acts are useful as an external aid to interpretation of the deed.
This principle may also be applied in case of statutes. “Contemporanea expositio est
optima et fortissinia in lege”means usage or practice developed under a statute is
indicative of the meaning ascribed to its words by contemporary opinion. The
maxim Contemporanea expositio as laid down by Lord Coke was applied to construing
ancient statutes, but usually not applied to interpreting Acts or statutes which are
comparatively modern.
The meaning publicly given by contemporary or long professional usage is
presumed to be true one, even where the language has etymologically or popularly a
different meaning. It is obvious that the language of a statute must be understood in the
sense in which it was understood when it was passed, and those who lived at or near that
time when it was passed may reasonably be supposed to be better acquainted than their
descendants with the circumstances to which it had relation, as well as with the sense then
attached to legislative expressions. Usages and practice developed under a statute is
indicative of the meaning ascribed to its words by contemporary opinion and in case of an
ancient statute, such reference to usage and practice is admissible.
He said a uniform notorious practice continued under an old statute and inaction of the
legislature to amend the same are important factors to show that the practice so followed
was based on correct understanding of the law. According to Lord Ellenborough,
Communis opinio is evidence of what the law is. When the practice receives judicial or
legislative approval it gains additional weight and is to be more respected.
 Expresssio Unius Est Exclusio Alterius
Expressio unius est exclusio alterius is a Latin phrase that means express mention of one
thing excludes all others. This is one of the rules used in interpretation of statutes. The
phrase indicates that items not on the list are assumed not to be covered by the
statute. When something is mentioned expressly in a statute it leads to the presumption
that the things not mentioned are excluded. This is an aid to construction of statutes.

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 Actionable Per se
The very act is punishable, no proof of damage is required
actions that do not require the allegation or proof of additional facts to constitute a cause of
action. Such a tort is actionable simply because it happened

 Assentio Mentium
The meeting of minds
Latin definition for a meeting of minds. The moment when a contract is complete.

 Pacta sund servanada

Treaties are legally binding
A Latin word for agreements are binding. It is a basic principle of civil law, international
law, and canon law

 Bona Vacantia
Goods without an owner
Bona Vacatia is a legal concept associated with the property that has no owner. It exists in
various jurisdictions, but with origins mostly in English law.

 Persona non-grata
Person non-wanted
refers to a foreign person whose entry or remaining in a country is prohibited by that
country’s government

 Alibi
At another place
A claim or a piece of evidence when an act, typically a criminal one, is alleged to have
taken place

 Ipso facto
By the very fact itself

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Ipso Facto is a Latin Phrase, which means that a specific phenomenon is a direct
consequence of the action in question, instead of any previous action.

 Actio personalis moritur cum persona

A personal right of action dies with the person
A maxim stating that actions of tort or contract are destroyed by the death of the injured or
the injuring party.

 Actus non facit reum nisi mens sit rea

The act does not make one guilty unless there is a guilty intent
an act does not make one guilty without a guilty mind. This Latin phrase is often given as
the pinnacle of the English common law criminal justice system and is usually in the
context of mens Rea.

 Jus cogens
The peremptory norm of general international law
refers to certain fundamental principles of international law, from which no derogation is
ever permitted

 Pari passu
On an equal footing
Is a Latin phrase that describes situations where two or more assets, securities, creditor or
obligation are equally managed without situations

 Non- sequitur
An inconsistent statement
a conclusion or a statement that does not logically follow from the previous argument or
statement

 Ubberime Fide
In utmost good faith

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utmost good faith- it is a legal doctrine that governs most insurance contracts

 Vox populi
Voice of the people
this phrase is used in English to mean voice of the people.

 Corpus Delicti
The body of crime
material substance (such as the body of the victim of a murder) upon which a crime has
been committed.
1. Corpus delicti literally means "body of the crime".
2. In its original sense, the body in question refers not to a corpse but to the body of
essential facts that, taken together, prove that a crime has been committed.
3.
 De Minimis Lex non Curat
The law does not notice trifling matters
a common law principle whereby the judges will not sit in the judgment of extremely
minor transgressions of the law.

 Volenti non fit injuria

To a willing person, injury is not done
Is a common law doctrine that states that if someone willingly places themselves in a
position in which harm might result, knowing that some degree of harm might result, they
are able to bring a claim against the other party in tort.

 Ubi Jus Ibi remedium

Where there is a right, there is a remedy
for every wrong, there is a remedy. Further, when one’s right is denied, the law affords a
remedy of an action for its enforcement.

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 Qui facit per alium facit per se

He who acts through another acts by himself
It is a fundamental legal maxim of the law of agency. It is a maxim often stated in
discussing the liability of an employer for the act of the employee

 Jus naturale
Natural law
natural law is a philosophy that ascertains that certain rights are inherent by human nature,
traditionally by god and something that can be understood universally through human
reason.

 Per Curium
In the opinion of the court
denoting decision of the appellate court in unanimous agreement written anonymously.

 Obiter Dicta
Reason for being a part of the judgment
a judge’s expression of opinion uttered in court or in a written judgment, but not essential
to the decision and therefore not legally binding as a precedent.

 Ration decidendi
None of the above
the reason or the rule of law on which a judicial decision is made

 Res Judicata
A case which has already been decided
a matter that has been adjudicated by a competent court and therefore may not pursued
further by the same parties.

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 Quantum Merit
As much as deserved
a reasonable sum of money to be paid for the services rendered or work done when the
amount is due as not stipulated in a legally enforceable contract.

 Actori Incumbit Onus Probandi

The burden of proof lies on the plaintiff
is a Latin phrase derived which means that the burden of proof lies on the plaintiff.

 In Limine
On the threshold
A motion in limine is a motion that is tabled by one of the parties at the very beginning of
the legal procedures and seeks to pull the rug out from under the feet of the other party.
This motion is decided by the judge in both civil and criminal proceedings.

 Inter Vivos
between living persons
Is a legal term referring to a transfer or a gift made during one’s lifetime, under the subject
of trust.

 Respondent Superior
Let the principle answer
is a doctrine of law that states that a party is responsible for the vicarious acts of its agents.
This common law doctrine was established in the seventeenth century.

 Quo Warranto
By whose authority
a writ or a legal action requiring a person to show by what warrant an office or a franchise
is held, claimed, or exercised.

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 Injuria Sine Damnum

Injury without damage
the meaning of the above maxim is the infringement of an absolute private right without
any actual loss or damage. This was first established in the Gloucester grammar school
case.

 Caveat emptor
Let the buyer beware
it is the principle that states that the buyer alone is responsible for checking the quality and
the sustainability of the goods before a purchase is made.

Ignoria Juris non Excusat

Ignorance of a law is not an excuse
Is a legal principle holding that a person who is unaware of a law may not escape the
liability for violating the law merely because one was unaware of its content.

 A fortiori
'From stronger argument' – Used to express a conclusion for which there is stronger
evidence than for a previously accepted one

 Ab initio
‘From the beginning’ – If a contract is void (say for mistake) ab initio, this has the
consequence that no innocent third parties can acquire rights under any subsequent contract
(Bell v Lever Bros [1932] AC 161 (HL) (Lord Atkin).

 Actus reus
‘A guilty act’ – The prohibited conduct or behaviour that the law seeks to prevent.
Although commonly referred to as the “guilty act” this is rather simplistic, as the actus reus
includes all the aspects of the crime except the accused's mental state (see mens rea). In
most cases the actus reus will simply be an act (e.g. appropriation of property is the act of

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theft) accompanied by specified circumstances (e.g. that the property belongs to another).
Sometimes, however, the actus reus may be an omission to act (e.g. failure to prevent death
may be the actus reus of manslaughter: R v Stone and Dobinson [1977] QB 354) or it may
include a specified consequence (death resulting being the consequence required for the
actus reus of murder or manslaughter). In certain cases the actus reus may simply be a state
of affairs rather than an act (Winzar v Chief Constable of Kent (1983) The Times 28 March
1983).

 Ad hoc
'To this' – Created or done for a particular purpose as necessary:

 Ad idem
‘Towards the same’ – Indicates that the parties to a transaction are in agreement.

 Ad litem
‘As regards the action’
A grant ad litem is the appointment by a court of a person to act on behalf of an estate in
court proceedings, when the estate's proper representatives are unable or unwilling to act.
A guardian ad litem is the former name for a litigation friend responsible for the conduct of
legal proceedings on behalf of someone else.

 Ad referendum
‘Subject to reference’ – Denoting a contract or other matter that is subject to agreement by
other parties and finalisation of the details

 Alibi
‘Elsewhere’ – A defence to a criminal charge alleging that the defendant was not at the
place at which the offence was committed at the time of its alleged commission and so
could not have been responsible for it. If the defendant proposes to introduce alibi
evidence, details of his alibi should be provided to the prosecution.

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 Alieni juris
‘Of another's right’ – Describing the status of a person who is not of full age and capacity

 Aliunde
‘From elsewhere’ – From a source outside the document currently under consideration.
Evidence aliunde
may be considered where the meaning of a document (e.g. a will) is otherwise unclear.

 Amicus curiae

‘Friend of the court or tribunal’ – A non-party who gives evidence before the court so as to
assist it with research, argument, or submissions. For example, in the House of Lords
decision on whether to allow the extradition of General Pinochet their lordships sought an
independent expert opinion on the matter of diplomatic immunity. For that purpose they
called upon an expert in this field, David Lloyd Jones QC, to assist the court.

 Animus

‘Intention’ - The term is often used in combination; for example:

• animus furandi – the intention to steal;

• animus manendi – the intention to remain in one place (for the purposes of the law
relating to domicile);
• animus donandi: – the intention to transfer property.

 Ante

‘Before’

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 Bona vacantia

‘Empty goods’ – Property not disposed of by a deceased's will and to which there is no
relation entitled on intestacy. Under section 46 of the Administration of Estates Act 1925,
such property passes to the Crown, the Duchy of Lancaster, or the Duke of Cornwall.

 Bona fide

‘With good faith' – Genuine; real

 Caveat

‘Let him beware’ – A notice, usually in the form of an entry in a register, to the effect that
no action of a certain kind may be taken without first informing the person who gave the
notice (the caveator).

 Caveat emptor

‘Let the buyer beware’ – A common-law maxim warning a purchaser that he could not
claim that his purchases were defective unless he protected himself by obtaining express
guarantees from the vendor. The maxim has been modified by statute: under the Sale of
Goods Act 1979 (a consolidating statute), contracts for the sale of goods have implied
terms requiring the goods to correspond with their description and any sample and, if they
are sold in the course of a business, to be of satisfactory quality and fit for any purpose
made known to the seller.

 Certiorari

‘To be informed’

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 Cf (confer)

‘Compare'

 Compos mentis

‘Possessed of mind’ – Of sound mind: sane. A valid contract must be made by someone
who is compos mentis.

 Cor (coram)

'In the presence of the people'

 Corpus delicti

‘The body of the offence’ – The proof that the crime has been committed. Originally this
referred literally to the corpse of a murdered person. It now refers to the factual evidence
of the crime.

 Cur. adv. vult/Curia Advisari vult

The court wishes to consider the matter before giving judgment, as when time is needed to
consider arguments or submissions made to it.

 De bene esse

‘Of well-being’ – Denoting a course of action that is the best that can be done in the
present circumstances or in anticipation of a future event.

 De facto

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‘In fact’ – Existing as a matter of fact rather than of right.

 De jure

‘Of law’ – As a matter of legal right; by right.

 De lege ferenda

‘Of (or concerning) the law that is to come into force’ – A phrase used to indicate that a
proposition relates to the law as it is.

 De lege lata

‘Of (or concerning) the law that is in force’ – A phrase used to indicate that a proposition
relates to the law as it is.

 De minimis (non curat lex)

‘The law is not concerned with trivial matters’

 Dictum

‘A saying’ – An observation by a judge with respect to a point of law arising in a case

before him.

 Dissentiente

'Differing in opinion' – Dissenting from one's brother judges and making a speech to this
effect. It is often
abbreviated to ‘diss’ in citations of cases.

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 Doli (in)capax

'(In) capable of wrong' – A child under the age of 10 is deemed incapable of committing
any crime. Above the age of 10 children are doli capax and are treated as adults, although
they will usually be tried in special youth courts (with the exception of homicide and
certain other grave offences) and subject to special punishments.

 Erratum

An error in printing or writing.

 Ex gratia

Done as a matter of favour – An ex gratia payment is one not required to be made by a

legal duty.

 Ex officio

By virtue of holding an office – Thus, the Lord Chief Justice is ex officio a member of the
Court of Appeal.

 Ex parte

1. On the part of one side only – An ex parte hearing is defined in the Glossary to the
Criminal Procedure Rules as a hearing where only one party is allowed to attend and make
submissions. However, the term ex parte is no longer generally used in civil proceedings,
having been replaced by the phrase without notice.
2. On behalf of – This term is used in the headings of law reports together with the name
of the person making the application to the court in the case in question, for example in
applications for judicial review.

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 Ex post facto

'In the light of subsequent events' – Describing any legal act, such as a statute, that has
retrospective effect

 Habeas corpus

'You shall have the body (in court)' – A prerogative writ1 used to challenge the validity of
a person's detention, either in official custody (e.g. when held pending deportation or
extradition) or in private hands. Deriving from the royal prerogative2 and therefore
originally obtained by petitioning the sovereign, it is now issued by the Divisional Court of
the Queen's Bench Division, or, during vacation, by any High Court judge. If on an
application for the writ the Court or judge is satisfied that the detention is prima facie
unlawful, the custodian is ordered to appear and justify it, failing which release is ordered.

 Ibid

‘In the same place’ – Used to save space in textual references to a quoted work which has
been mentioned in a previous reference.

 Ignorantia juris non excusat

‘Ignorance of the law does not excuse’ – i.e. no defence against criminal or other
proceedings arising from its breach.

 In camera

‘In the chamber’ – In private. A court hearing must usually be public but the public may be
barred from the court or the hearing may continue in the judge's private room in certain
circumstances; for example, when it is necessary in the interests of national security or to

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protect the identity of a witness unwilling to give evidence in public. Part 39 of the Civil
Procedure Rules and Part 16 of the Criminal Procedure Rules deal with in camera hearings.

 In curia

‘In open court’

 In limine

‘Preliminary’ – Used, for example, to describe an objection

 In loco parentis

‘In place of a parent’ – used loosely to describe anyone looking after children on behalf of
the parents, e.g. foster parents or relatives. In law, however, only a guardian or a person in
whose favour a residence order is
made stands in loco parentis; their rights and duties are determined by statutory provisions.

1 An order issued by a court in the sovereign's name directing some act or forbearance.
Originally, a writ was an instrument under seal bearing some command of the sovereign.
2 The special rights, powers, and immunities to which the Crown alone is entitled under
the common law. Most prerogative acts are now performed by the government on behalf of
the Crown. Some, however, are performed by the sovereign in person on the advice of the
government (e.g. the dissolution of Parliament) or as required by
constitutional convention (e.g. the appointment of a Prime Minister). A few prerogative
acts (e.g. the granting of
certain honours, such as the Order of the Garter) are performed in accordance with the
sovereign's personal wishes.
3 A court order.

 In personam

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‘Against the person’ – Describing a court action or a claim made against a specific person
or a right affecting a particular person or group of people (compare in rem). The maxim of
equity “equity acts in personam” refers to the fact that the Court of Chancery issued its
decrees3 against the defendant himself, who was liable to imprisonment if he did not
enforce them.

 In re

‘In the matter of’ – A phrase used in the headings of law reports, together with the name of
the person or thing that the case is about (for example, cases in which wills are being
interpreted). It is often abbreviated to re.

 In rem

‘Against the thing’

1 Describing a right that should be respected by other people generally, such as ownership
of property, as distinct from a right in personam.

2 Describing a court action that is directed against an item of property, rather than against a
person or group of people. Actions in rem are a feature of the Admiralty Court.

 Inter alia

‘Among other things’ – The phrase is used to make it clear that a list is not exhaustive.

 In situ

‘In the original place’

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 Intra

‘Inside’

 Intra vires

‘Within the powers’ – Describing an act carried out by a body (such as a public authority
or a company) that is within the limits of the powers conferred on it by statute or some
other constituting document (such as the memorandum and articles of association of a
company).

 Inter vivos

‘Between living people’ – If a trust is created inter vivos it is created during lifetime, as
distinct from upon death.

 Ipso facto

‘By that very fact or act’

 Locus in quo

‘The place in which’ – The place where an event took place. Fact finders may visit the
locus in quo in order to understand the evidence and the judge and jury may inspect it as
part of court proceedings.

 Mens rea

‘A guilty mind’ – The state of mind that the prosecution must prove a defendant to have
had at the time of committing a crime in order to secure a conviction. Mens rea varies from
crime to crime; it is either defined in the statute creating the crime or established by

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precedent. Common examples of mens rea are intention to bring about a particular
consequence, recklessness as to whether such consequences may come about (R v
Cunningham [1957] 2 QB 396), and (for a few crimes) negligence. Some crimes require
knowledge of certain circumstances as part of the mens rea (for example, the crime of
receiving stolen goods requires the knowledge that they were stolen). Some crimes require
no mens rea; these are known as crimes of strict liability. Whenever mens rea is required,
the prosecution must prove that it existed at the same time as the actus reus of the crime
(coincidence of actus reus and mens rea: R v Le Brun [1992] QB 61). A defendant cannot
plead ignorance of the law, nor is a good motive a defence. He may, however, bring
evidence to show that he had no mens rea for the crime he is charged with; alternatively, he
may admit that he had mens rea, but raise a general defence (e.g. duress) or a particular
defence allowed in relation to the crime.

 Non est factum (suum)

‘It is not my deed’ – A plea that an agreement mentioned in the statement of case was not
the act of the defendant. It may be applicable where the person signing a document had no
real understanding of the character or effect of that document.

 Obiter dictum

‘A remark in passing’ – Something said by a judge while giving judgment that was not
essential to the decision in the case. It does not form part of the ratio decidendi of the case
and therefore creates no binding precedent, but may be cited as persuasive authority in
later cases.

 Onus (probandi)

‘Load or burden’ – Something that is one’s duty or responsibility (burden of proof).

 Pari passu

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‘With equal step’ – Proportionally, without preference. The principle that where there are
competing claimants, (e.g. in bankruptcy proceedings) assets should be distributed on a pro
rata basis, in accordance with the size of the claim.

 Per

‘Through, by means of’

 Per curiam (per. cur.)

‘By the court’ – A proposition per curiam is one made by the judge (or, if there is more
than one judge, assented to by all).

 Per incuriam

‘Through lack of care’ – A decision of a court is made per incuriam if it fails to apply a
relevant statutory provision or ignores a binding precedent.

 Per se

‘By or in itself or themselves; intrinsically’

 Post

‘Subsequent to; after’

 Prima facie

‘At first appearance’ – on the face of things

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 Quasi

'As if, almost'

 Qui facet per alium facit per se

‘He who acts through another, acts through himself’ – The traditional basis of vicarious
liability. It means, for example, that an employer is liable for the consequences of any act
done by employees in the ordinary course of their duties and responsibilities.

 Ratio decidendi

‘The reason for deciding’ – The principle or principles of law on which the court reaches
its decision. The ratio of the case has to be deduced from its facts, the reasons the court
gave for reaching its decision, and the decision itself. It is said to be the statement of law
applied to the material facts. Only the ratio of a case is binding on inferior courts, by
reason of the doctrine of precedent.

 Res judicata

‘A matter that has been decided’ – The principle that when a matter has been finally
adjudicated upon by a court of competent jurisdiction it may not be reopened or challenged
by the original parties or their successors in interest. It is also known as action estoppel. It
does not preclude an appeal or a challenge to the jurisdiction of the court. Its justification is
the need for finality in litigation.

 Res ipsa loquitur

‘The thing speaks for itself’ – A principle often applied in the tort of negligence. If an
accident has occurred of a kind that usually only happens if someone has been negligent,
and the state of affairs that produced the accident was under the control of the defendant, it

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may be presumed in the absence of evidence that the accident was caused by the
defendant's negligence (Scott v London and St Katherine Docks Co (1865) 3 Hurl.
& C. 596).

 Sic

'So, thus' – Used in brackets after a copied or quoted word that appears odd or erroneous to
show that the word is quoted exactly as it stands in the original.

 Stare decisis

‘To stand by things decided’ – A maxim expressing the underlying basis of the doctrine of
precedent, i.e. that it is necessary to abide by former precedents when the same points arise
again in litigation.

 Sub judice

‘In the course of trial’ – The sub judice rule:

1 A rule limiting comment and disclosure relating to judicial proceedings, in order not to
prejudge the issue or influence the jury. See contempt of court.

2 A parliamentary practice in which the Speaker prevents any reference in questions or

debates to matters pending decision in court proceedings (civil or criminal). In the case of
civil proceedings, he has power to waive the rule if a matter of national interest is involved.

 Sui generis

‘Of its own kind’ – Forming a class of its own; unique.

 Ultra vires

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‘Beyond the powers’ – Describing an act by a public authority, company, or other body
that goes beyond the limits of the powers conferred on it. Ultra vires acts are invalid
(compare intra vires). The ultra vires doctrine applies to all powers, whether created by
statute or by a private document or agreement (such as a trust deed or contract of agency).
In the field of public (especially administrative) law it governs the validity of all delegated
and sub-delegated legislation. This is ultra vires not only if it contains provisions not
authorized by the enabling power but also if it does not comply with any procedural
requirements regulating the exercise of the power.

The doctrine also governs the validity of decisions made by inferior courts or
administrative or domestic tribunals and the validity of the exercise of any administrative
power. The decision of a court or tribunal is ultra vires if it exceeds jurisdiction,
contravenes procedural requirements, or disregards the rules of natural justice (the power
conferring jurisdiction being construed as requiring the observance of these). The exercise
of an administrative power is ultra vires not only if unauthorized in substance, but equally
if (for example) it is procedurally irregular, improperly motivated, or in breach of the rules
of natural justice (substantive vs. procedural ultra vires). The remedies available for this
second aspect of the doctrine are quashing orders, prohibiting orders, declaration, and
injunction (the first two of these are public remedies, not available against decisions of
domestic tribunals whose jurisdiction is based solely on contract).

 Volenti non fit injuria

‘No wrong is done to one who consents’ – The defence that the claimant consented to the
injury or (more usually) to the risk of being injured. Knowledge of the risk of injury is not
sufficient; there must also be (even if only by implication) full and free consent to bear the
risk (Simms v Leigh Rugby Football Club Ltd [1969] 2 All ER 923). A claimant who has
assumed the risk of injury has no action if the injury occurs. The scope of the defence is
limited by statute in cases involving business liability

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