Interpretation Of Statutes

Ref. Books - Bindra N.S. - Dr. Avtar Singh - Maxwell - Prof. T. Bhattacharyya - B.M. Gandhi - M.P. Tandon - D.N. Mathur - Justice G.P. Singh - Herbert Broom (Legal maxims)

 Chapter I 1) Meaning of the statute. 2) Commencement, operation and repeal of statutes. 3) Purpose of Interpretation of Statutes  Chapter II – Aids to interpretation - Internal Aid 1) Title 2) Preamble 3) Headings & Marginal notes. 4) Sections & Sub-sections 5) Punctuation marks 6) Illustrations, inceptions, provision & saving Clauses. 7) Schedules 8) Non obstaute Clause - External Aid 1) Dictionaries 2) Translations 3) R Travaux preparation 4) Contempronea expositus 5) Debates, inquiry commission reports & law commission reports.  Chapter III - Rules of statutory Interpretation 1) Primary Rules 2) Literary rule 3) Golden rule 4) Mischief rule 5) Rule of harmonious construction 6) Secondary rule 7) Noscitor a solics 8) Ejusdem generis 9) Reddendo sangula singulis

 1) 2) 3) 4) 5) 6) 7)  1) 2) 3) 4) 5) 6) 7)  1) 2) 3) 4) 5) 6) 7) 8) 9)  1) 2) 3) 4) 5) 6) 7) 8) 9) 

Chapter IV – presumptions in Statutory interpretation Statutes are valid Statutes are territorial in operation. Presumption as to jurisdiction Presumption as to what is inconvenient or absurd Presumption against intending injustice Presumption against impairing obligation of permitting advantage from once one wrong. Prospective operation of statutes. Chapter V – Maxims of Statutory Interpretation Delegatus non-potest delegare. Expressio Unius, Exclusio alterius. In pari delecto potior est conditio possidentis. Ulters valet potior est conditio possidentis. Expressum facit ussure tactittum. Generalis specialibus non derogant. In bonam partem. Chapter VI – Interpretation with reference to the subject matter & the purpose Interpretation with reference to the subject matter & the purpose Taxing structures. Penal statutes. Welfare legislation. Interpretation of directory & mandatory provisions. Interpretation of substantive & adjunctive statutes. Interpretation of enabling statutes. Interpretation of statutes conferring rights. Interpretation of statutes conferring powers. Chapter VII – Principles of constitutional interpretation Harmonious construction. Doctrine of pith & substance Colourable legislation Ancillary powers Occupied field Residuary powers Doctrine of prospective overruling Doctrine of repugnancy Doctrine of eclipse. Chapter VIII – General Clauses Act.

 Introduction : LAW  English word, - concept or process Meaning of Law :• fundamental rules of behavior, or General rule of conduct. • Oxford Dict. – The body of enacted or customary rules recognized by a community as binding.

• Law – interdisciplinary. • Mediator of relation between people & govt.

• Thomas Hobbes :- “ Law is the formal glue that holds fundamentally disorganized societies together”.  Function of Law :- Regulate society by means of

Substantive laws

procedural Laws

 Substantive laws :- Avoid conflicts & establishes rts &

obligations  Procedural laws :- Resolve conflicts & establishes procedure for enforcement of rts.  Sources :- Enacted Laws Customary Laws Case-Laws

 History : Man - Natural social being  Association for protection; &

for association law required  Development of law – development of civilization  Different community –law developed in distinct ways, reflecting the prevalent sociopolitical norms & values to regulate society.  Civilization :- (elements) - bound by culture, in a common territory, indispensable law & order

 Prof Dicey: Public opinion is the base of

law.  Ancient Egyptian law (3000 B.C.) – civil code based on tradition, social equality & impartiality.  Ancient Athens – (Natural Justice)

- 8th century B.C. – first society based on inclusion of its citizenry excluding women & slave.

 Roman Law .(Law & Morality)

& influenced by Greek & underwent codification during Justinian.  India :- (Dharma) - Arthashastra 100 A.D. -

foundational treaties.

Common law – made by Courts • Stare decisis – let the decision stand • Records • Parliamentary sovereignty • Single system of law • Exported through colonial activities.

 Need for knowledge of Law

“ignorantia juris non excusat  Layman to be aware & acquaint with the general

principals of the law of the country.

SEPARATION OF POWERS -- HISTORY 4th century B.C. :- GREEK Plato, in his book ‘Republic’ first enunciated the Separation of Powers 16th century :- Bodin, the French philosopher

3rd century B.C. :GREEK - Aristotle wrote a book ‘Politics’. 17th century :- Locke , the British political scientist

18th century :- Montesquieu , in ‘Esprit des Lois’1748 (The spirit of the laws). French Philosopher. Fundamental object of Separation of Power:- Liberty & freedom of an individual

Legislature – to enact law (Parliament) e.g. 1) I.T. Act 1961 2) Excise / Custom Laws 3) Indian Penal Code

Checks & Balances

Executive – implement law (Government) e.g. 1) CBDT

2)CBEC 3) Police force

Judiciary – to interpret law (Courts) - Settle dispute

Language like a Chameleon :• Language – most important invention but most unsuccessful medium of communication • Full of ambiguities, vagueness, incorrectness. • Due to the multifaceted nature of language each party will utilize the meaning which is advantageous to them. • It is function of the court to decide most correct use of the language. • Examples

Legal Language – • highly complex, comprehensive & technical in nature. • It is technical bcoz law is meant to be clear & unambiguous & state the whole matter comprehensive as to avoid any uncertainty in future. • Broad terms (vehicles, passengers) • Bad drafting unforeseeable developments • Changes in the use of the language. (e.g. moonwalk, gang, hot, cool, mouse, LOL, YOLO)

INTERPRETATION OF STATUTE • Interpretation = (‘Interpretari’- Latin ) – to explain, to expound, to understand or to translate etc. • Definition – Law Art.13 (3) :- ordinance, order, bye-law, rule, regulation, custom, or usage, having the force, an amendment .

statute

Statute – written law, as laid down by the legislature (Parliament & State Legislative Councils). Sententia legis (will of legislature) - Draw powers from Constitution.

Interpretation of statute • Ascertaining what intention is conveyed by a statute • Expressly or impliedly • Application of law e.g. “table”, carpenter = item or furniture but accountant = spreadsheet or matrix.

Law Some common rules made & followed by society for a long time which are still being followed. These are not necessarily written.

Statute Whereas, a statute refers to laws which have been passed as bills by the legislature of a country.

Law – entire body of statutory,

Statute – specific

administrative law, Precedent, & common law provisions etc. that regulate our society.

codified statement of some law, approved by legislature.

Act – full text of some legislative writings, includes entirely of what the legislature has voted on & agreed to. Also include all necessary statutory language that is to be adopted, changed, or repealed, origin of bill, proposal, discussion & decision.

Enactment – section or part of section in any Act may be an enactment.

# Rules – regulating procedure # Regulation substantive admin rule making

# Order – instruments exercising executive & quasi judicial decisions. # Bye-Law – rule made by local authority or corporation.

D.L. # Ordinance – By President / Governor

D.L.

# Notification – publication of law in Official Gazette

Consti

Law

statutes

• Method – • legal problem solving –two aspects a)Discovery of facts b) Ascertaining how law would apply to those facts. eg.

Article 21 – Right to Life vis-à-vis Right to die • Que – Whether the right to die is included in Art. 21 of the Indian Constitution? 1) State of Maharashtra v. Maruty Sripati Dubal 1987 Cr J L 549 2) Chenna Jagadeeswar v. State of A.P. 1988 Cr J L 549 3) P.Rathinam v. UOI (1994) 3 SCC 394 4) Gian Kaur v State of Punjab (1996) 2 SCC 648

• Interpretation – Judicial function • Girdharilal & sons v. Balbir Nath Mathur AIR 1986 SC 1099 – After Parliament has enacted the Act, only the Court may say what Parliament meant to say; none else.

• Prakash Kumar v. State of Gujarat (2005) 2 SCC 409 – Jurisdiction of courts to interpret a statute can be invoked only in cases of ambiguity. • Natty Devi v. Radha Devi Gupta (2005) – Interpretation function of courts is to discover the true legislative intent.

• Sanjeev Coke Mfg. Co. v. Bharat Coking Coal Ltd AIR (1983) SC 239 - ..but the Legislature can (subject to constitutional restrictions) enact an Interpretation Acts. It may contain statute specific or general rules of interpretation. • T.N. Electricity Board v. Status Spa. Mills Ltd.(S C 2008) – the courts has the last say in the interpretation of statutes.

Intention

Words

Language

Meaning

Classification of Statute – codifying, declaratory, remedial, amending, consolidating, enabling, disabling, penal statute etc.

Purpose, Need & objectives  Understand the language of statute.  To determine the will & intention of legislature  Intention of legislature – Lord Watson – said in Saloman v. Saloman & Co. Ltd HL 16 Nov 1896“ ‘the intention of legislature’ is a common but slippery phrase…signifies...in a court of law or equity, what the legislature intended to be done or not to be done can only be legitimately ascertained from that which it has chosen to enact, either express words or by reasonable & necessary implication.”  Salmond – “The essence of law lies in its spirit & not in letters, for the letter is significant only as being the external manifestation of the intention that underlies it”.

• Seaford Court Estate v. Asher (1949) - Lord Denning ---- Impossible for human to imagine all possible circumstances & provide a law, free from ambiguity (Unforeseeable developments). - English language is not a mathematical formula, that it can provide single & clear interpretation in all cases. - If it becomes mathematical it restrict the scope of expression

Commencement of statute Historical background :• England – before 1793, by legal fiction an Act of Parliament took effect from the first day of the session. • To abolish a fiction the Acts of Parliament (Commencement) Act, 1793 (c. 13) enacted that the clerk of Parliament should endorse, on every Act, immediately after its title, the date of passing & receiving the Royal assent. • Endorsement – part of the Act.

• Before the Act of 1793 - rule – when no date was fixed, an Act came into force on the first day of the session in which it was passed - considered to have received the Royal assent on the same day. • Legal fiction – the whole session of Parliament was regarded as having been held on its first day. • Even if the statute is passed on the last day of the session made a previously innocent act criminal, all person who had been doing it during the session, while the act was still innocent, would be liable to suffer the punishment imposed. • Due to its retrospective operation, it was found to work injustice so this rule was abolished by the Act of 1793.

• India • Draft Bill – passed by Lok Sabha & Rajya Sabha – President for assent – becomes Act – Publication in Gazette of India (notification), official way to inform the public, so citizen cannot plead ignorance of the law. • Act comes into force = commencement • Definition - Sec.3 (13) G C Act 1897 – “commencement ”, used with reference to an Act or Regulation, shall mean the day on which the Act or Regulation, comes into force. • Sec. 5 – GC Act - where any central Act is not expressed to come into operation on a particular day, then it shall come into operation on the day on which it receives the assent of the President. • a central Act come into operation, when it receives Presidential assent • e.g. Central Act assented by President on 26th Jan at 10:30 am, it would be construed to have come into operation on the mid-night between 25th & 26th Jan. • Commencement of an Act can also be postponed by the Govt. to any future date appointed by govt. through a notification in the Official Gazette of India.

• The General Causes Act • State Act – assented by Governor / President, first published in the Official Gazette of the State. • An Act not applicable to area or State cannot be made applicable by judiciary. • But if the Act embodies a principle that on the ground of justice , equity, good conscience may be applied to a cases.

• Cole v. Porteous (1892) – held – an Act will not have any operation until the day for its commencement. • State of Orissa v. Chandrashekhar Singh (1970) – an Act cannot be said to commence or to be in force unless it is brought into operation by legislative enactment or by the exercise of authority by a delegate empowered to bring it into operation. • Ishwar Das v. UOI (1972) – the power to bring an Act into force can be exercised by the delegate..

• A.K.Roy v. UOI AIR 1982 SC710 Enforcement of a statute is left to the discretion of the govt – no writ of Mandamus for enforcement. • Altmesh Rein v. UOI (1988) But if considerable time has elapsed since passing of the statute a writ can be issued directing govt. the statute should brought into force.

• Format of Bill 1) 2)

Long title – describe the nature Preamble – follows long title & enacting formula, - ‘ WHEREAS …. etc. 3) Enacting formula – ‘Be it enacted by Parliament of India in the year….of the Republic…’ 4) Short title - ‘This Act may be called as …Act of 20….’ 5) Extent Clause 6) Commencement clause 7) Duration clause 8) Declaratory clause 9) Definition clause 10) Rule-making clause 11) Repeal & Savings Clause 12) Schedules

• The Consumer Protection Act, 1986 •

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(ACT NO. 68 OF 1986) PREAMBLE - An Act to provide for better protection of the interests of consumers and for that purpose to make provision for the establishment of consumer councils and other authorities for the settlement of consumers’ disputes and for matters connected therewith. Be it enacted by Parliament in the Thirty-seventh Year of the Republic of India as follows:-

• CHAPTER I: PRELIMINARY • 1. Short title, extent, commencement and applications • (1) This Act may be called the Consumer Protection Act, 1986. • (2) It extends to the whole of India except the State of Jammu and Kashmir. • (3) It shall come into force on such date as the Central Government may, by notification, appoint and different dates may be appointed for different States and for different provisions of this Act. • (4) Save as otherwise expressly provided by the Central Government by notifications, this Act shall apply to all goods and services.

• TRANSFER OF PROPERTY ACT,1882 •

PRELIMINARY Short title - This Act may be called the Transfer of Property Act, 1882.

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Commencement: It shall come into force on the first day of July, 1882.

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Extent: It extends in the first instance to the whole of India except the territories which, immediately before the 1st November, 1956, were comprised in Part B States or in the States of Bombay, Punjab and Delhi.

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But this Act or any part thereof may by notification in the Official Gazette be extended to the whole or any part of the said territories by the State Government concerned.

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And any State Government may from time to time, by notification in the Official Gazette, exempt, either retrospectively or prospectively, any part of the territories administered by such State Government from all or any of the following provisions, namely,-

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Section 54, paragraph 2 and sections 3, 59, 107 and 123.

Repeal of Statutes • To revoke, abrogate or cancel a statute – inherent power • In whole or in part, either expressly or impliedly • The General Clauses Act,1897 – Sec.6 – “Repeal connotes abrogation or obliteration of one statute by another, as if it had never been passed.” • When an Act is repealed “it must be considered (except as to transactions past & closed) as if it had never existed.

• Right to Repeal inherent in legislation. Power to enact, similarly right to repeal. • Without this attribute, the power to repeal existing law, power to enact would be at nullity, due to the contradictory enactments. • No statute can make itself secure against repeal. • Object – to remove inconsistency. • e.g. the Official Secrete Act 1923 v. the Right to Information Act 2005

Perpetual Statute – • no time is fixed for its duration & such a statute remain in force until its repeal, may be express or implied. • Not mean that it cannot be repealed; it is perpetual in the sense that it cannot be abrogated by efflux of time or by non user.

Temporary Statute – • Duration is only for a specified time unless repealed earlier. • Duration may be extended by a fresh statute; if extended it cannot be said that a new law has been enacted - case of mere extension. • After a temporary statute expires, cannot be made effective by merely amending the same. • The apt manner of reviving the expired statute by reenacting in similar terms or by enacting a statute expressly saying that the expired Act is herewith revived. • e.g. the Industrial Relations Act, 2008 , Sec 87 (3) – “This Act shall, unless repeal earlier, stand repealed on 30th April 2010.”

Effect of Expiry of Temporary Repeal – • Steavenson v. Oliver (1841) 8 M & W 234 – “The extent of the restriction imposed & the duration of its provisions are matters of construction.” a) Legal proceedings under Expired Statute – - depend upon construction – if saving provision enacted – but in the absence of such - If a prosecution has not ended before the date of expiry of the Act , it will automatically terminate as a result of termination of the Act.

 State of U.P. v. Jagmanderdas AIR 1954 SC 683 – • Under Govt of India Act, 1935 – The Defence of India Act,1939 (shall remain in force during the continuance of the war & 6 months thereafter) • War came to an end – 1st April 1946 – expired 30th Sept 1946 • By issuing an Ordinance XII of 1946 on 30th March, 1946, the Defence Act was amended & inserted saving clause • The Ordinance XII of 1946 was repealed from 5th Jan ,1948, & this repeal was subject to saving clause preserving the effect of anything done or suffered. • The GOI Act was repealed by A/395 of Consti. Without any saving clause.

• On 16th Jan 1950, a prosecution was commenced against a person for infringing the provision during the years 1943-45 under the Non Ferrous Metal Control Order, 1942, an order made under Defence of India Rules which were framed under Defence of India Act. • Issue – whether the prosecution could be continued or it automatically terminated. • Held – the SC applied the normal rule that the offender could not be prosecuted after expiry of the Act.

e.g. - Art. 352 – Proclamation of National Emergency, grounds- war, external aggression or armed rebellion. - Art. 358 suspends Art/19 & Art. 359 enables President to suspend enforcement of other fundamental rights except 20 & 21 during emergency. - Parliament added 12 A in the Conservation of Foreign Exchange and Prevention of Smuggling Act,1974 (COFEPOSA) this have effect only during emergency enabled detention in violation of Clauses (4) & (5) of Art.22 – Detention orders passed under section 12- A of COFEPOSA were withdrawn after the Emergency when the section itself expired.

b) Notifications, Orders, Rules etc. made under temporary Statute. – when a temporary Act expires, the normal rule, is that any, notification, order, scheme, bye-law made or issued under the Act will also come to an end with the expiry of the Act & will not be continued after re-enacted (sec 24 of General Clauses Act).

c) Expiry does not make the statute dead for all purposes – A temporary statute, even in absence of a saving provision like sec. 6 of the General Clauses Act, is not dead for all purposes. e.g. a person has been prosecuted & sentenced during the continuance of a temporary Act for violating its provisions cannot be released before he serves out his sentence, even if the temporary Act expires.

d) Repeal of existing statute by temporary statute •

Where a temporary Act repeals an earlier statute the intention to the temporary Act will have to be considered to ascertain whether the repeal is absolute or whether the repealed earlier statute will revive on expiry of the repealing temporary statute.

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In State of Orissa v. Bhupendra Kumar (SC,1962), Gajendragadkar CJ. has observed, “the intention of the temporary Act in repealing the earlier Act will have to be considered, and no general or inflexible rule in that behalf can be laid down."

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According to Ellen borough CJ, in R v. Rogers (1809) - “it is a question of construction of every Act professing to repeal or interfere with the provisions of a former law, whether it operates as a total or a partial and temporary repeal.”

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And in another case he had stated, “A law, though temporary in some of its provisions, may have a permanent operation in other respects” [Warren v. Windle (1803)].

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Where the repealing section in a temporary Act on construction is held to expire with the expiry of the Act, the repeal will be construed only as a temporary repeal [R v. Rogers, (1809)].

Mode of Repeal – A. Express Repeal – • usually made by stating that the earlier statute or a particular provision is thereby repeal. No particular form is used, but usually ‘is or are hereby repealed’, or ‘shall cease to have effect’. • When the object is to repeal only, a portion of an Act words – ‘shall be omitted’ are normally used. • The legislative practice in India shows that ‘omission’ of a provision is treated as amendment which signifies deletion of that provision & is not different from repeal. • Bhagat Ram Sharma v. UOI AIR 1988 SC 740 – held – “no distinction between repeal & an amendment.”

• e.g. – Central Act adopted u/A 252 of Consti a state through a resolution passed by the House or Houses of State Legislature, the amendment or repeal of Central Act by Parliament does not affect its continuance unless the central amending or repealing Act is also adopted u/A 252 by State by Resolution of House or Houses

REVIVAL – Black’s Law Dictionary – 2nd ed. The process of renewing the operative force of a judgment which has remained dormant or unexecuted for so long a time that execution cannot be issued upon it without new process to reanimate it. Sec. 7 of the General Clauses Act.1897 – Revival of repealed enactment “…it shall be necessary for the purpose of reviving, either wholly or partially repealed, expressly to state that purpose.

Substitution – • repeal of the earlier provision & its replacement by the new provision, thus combines repeal & fresh enactment. • Expression used 1. “All provisions inconsistent with the Act are repealed”. 2. “All Acts & parts of Acts in conflict with the provisions of this Act are hereby repealed.” 3. “All laws & parts of laws in conflict herewith are expressly repealed.”  Municipal Board Bareilly v. Bharat Oil Co. AIR 1990 SC 548 – the state govt. had framed rules regulating the levy of octoroi in general by all municipalities. Thereafter, rules were framed for Bareilly Municipality expressly. It was held that there was deemed repeal of the earlier rules in respect of Bareilly Municipality.

B. Repeal by Necessary Implication 1. If its provisions are plainly repugnant to those of the subsequent statute. 2. If the two statute standing together would lead to wholly absurd consequences. 3. If the entire subject matter of the first is taken away by the second. • Harshad Mehta v. State of Maharashtra (2001) 8 SCC 257 – there is a presumption against a repeal by implication that – while enacting a law, legislature has a knowledge of existing laws on the subject, & therefore when it does not provide a repealing provision, it gives out an intention not to repeal the existing legislation, if any fair interpretation both the statutes can stand together, otherwise implied repeal.

• Common Law Rule – if one statute is repealed by a second & which in turn is repealed by a third, the effect is to revive the first statute unless a contrary intention is indicated in the third statute. The confusion resulting from all these gave rise to the practice of inserting saving clauses in repealing statutes & a consequences sec. 6 General Clauses Act,1897.

Saving Clauses – • An Act repeals a previous Act & provides – all orders issued under the repealed Act shall, so far as may be, be deemed to have been issued under the new Act, or • Is repealed with proviso ‘except as to things done under it’  Object – 1) Designed to safeguard the validity of orders, appointments etc. 2) To avoid retrospective operation of new statute

Operation of Statute – • Either prospective & retrospective • Generally prospective only • But certain statute both prospective as well as retrospective – contemplates past & gives effect to previous transaction. – must be mentioned in the statute. General Statute – prima facie prospective, unless it is expressed or implied. For retrospective operation sufficient direction required to show intention of legislature.

Conditions for giving retrospective effect –  minute attention must be given to language  Amending statute – an amendment of a substantive law is not retrospective unless laid down or necessarily implied.  Declaratory statute – an Act to remove doubts e.g. judicial error in interpretation.  Pending Actions – principle - rights of the parties are decided as per the law existed when the action was commenced. but if it is provided in the statute, it would be construed accordingly

Doctrine of Prospective Overruling – modern doctrine suitable for fast moving society. Does not affect the past but restrict its scope to the future. • I.C. Golaknath v. State of Punjab AIR 1967 SC 1643 – the law for future corrected & the past transactions as per the law, though invalid, are held valid. • It can be invoked only regarding constitutional matters & applied only by the Supreme Court.

General & Special Act – • Special Act prevails over the General Act in case of inconsistency • food Inspector v. Suivert & Dholakia Pvt. Ltd. only the intention to abrogate the special law can be spell out, the General Law will prevail. • General Act cannot repeal Special Act.

Statute dealing with procedure – • Presumed to be retrospective unless otherwise interrupted. • Lord Denning – “The rule that an Act of Parliament is not to be given retrospective effect only to statutes which affect vested rights. It does not applies only to statute which only alter the form of procedure or admissibility of evidence.” • Maxwell – “no person has a vested right in any course of procedure. He has only the right of prosecution or defence in the manner prescribed. If the case is pending & by an Act of Parliament the procedure is altered, has no other right than to proceed accordingly to the altered mode.”

Statute regulating Succession, Fiscal • Only prospective effect

Penal statute – • The effect of increasing penalties for existing offences will only be prospective by reason of the constitutional restriction imposed by Article 20 (ex post facto law) of the Constitution.

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CHAPTER – II AIDS OF INTERPRETATION Purpose of interpretation – to unlock the lock put by the legislature - aids of interpretation. will of people through legislature = statute. Primary function of the Court interpretation or to find out the intention of legislature. expected not to interpret arbitrarily Governed by Principles of Interpretation.

• ‘Interpretation’ & ‘ Construction’ used synonymously but jurisprudentially different. Interpretation

Construction

Art of finding out the Drawing conclusions on true sense of an the basis of the true enactment by giving the spirit of the enactment. words their natural & ordinary meaning.

Intrinsic or Internal Aids  The will of legislature may have following particulars • • • • • • • • • • • •

Short title Long title Preamble Marginal notes Headings of a group of sections or individual sections Definition of interpretation clause Proviso Illustrations Exceptions & saving clause Explanations Schedules Punctuations.

1) SHORT TITLE :• Nickname for - identification & facility of reference but does not describe the Act. • Part of the Act. • Cannot override the clear meaning of enactment • eg. The Indian Evidence Act,1872 the Indian Penal Code, 1860 etc. • In some modern statute – given in a section • eg. Sec 1 - Indian Evidence Act,1872 - ‘this Act may be called as the Indian Evidence Act,1872 - Sec. 1 – This Act may be called the Prevention of Corruption Act,1988.

Sec. 28 of General Clauses Act, 1897 provides that, any enactment may be cited by reference to (a) the title, or (b) short title (if any) conferred thereon, or (c) by reference to the number and year thereof.  The Indian Short Titles Act, 1897, also provides for the mode of citation of certain Acts.

2) LONG TITLE :• Mentioned at the head of the statute & contains a brief description of the purpose of the statute. • Olden days - long title wasn't consider a part of the statute. • In recent time - change in the thinking of court – imp. internal aid

• e.g. Cr. P. C.- An Act to consolidate & amend the laws relating to criminal procedure • C.P.C. – An Act to consolidate & amend the laws relating to the procedure of courts of civil judicature. • The Prevention of Food Adulteration Act,1954 - An act to make provision for the prevention of adulteration of food.

• In R v. Bates and Russel (1952), Donovan J. had stated that, “the long title is a legitimate aid to construction...”. • In Ashwini Kumar Ghosh v. Arbinda Bose, (SC,1952); SR. Das J observed “...it is now settled law that the title of a statute is an important part of the Act and may be referred to for the purpose of ascertaining its general scope and throwing light on its construction, although it cannot override the clear meaning of the enactment.”

• Kedar Nath v. State of West Bengal AIR 1953 SC 404 sec.4 of West Bengal Criminal Law Amendment Act,1949 empowered to State govt to choose which cases should go for reference to the special court to be tried under special procedure – was in question. The court held that – the long title of the Act was clear & enough to give the govt. discretion. • Manohar Lal v. State of Punjab AIR 1961 SC 418 (the Punjab Trade Employees Act 1940) – long title of the Act is relied as a guide to decide the scope of the Act. • In Union of India v. Elphinstone Spg & Wvg Co. Ltd. (SC,2001), it was held that the long title alone or along with the preamble is a good guide regarding the object, scope or purpose of the Act.

3) PREAMBLE – • Contains main object & purpose • Preamble is the Act in nutshell. • Key to open the minds of legislature. • If the language of the statute is clear, preamble has no role to play. Useful only when two meanings possible. • eg. IPC – ‘whereas it is expedient to provide a general code for India.’

• State of West Bengal v. Anwar Ali AIR 1952 SC 75 – constitutionality of sec.5 of the West Bengal Special Courts Act, 1950 was involved vis-à-vis Art.14 – challenged discretion of the state – held that – language of Preamble & the enactment clearly & unambiguously vested discretion in the State govt. is legitimate & constitutional. • Rashtriya Mill Mazdoor Sangh v. N.T.C. (south Maharatra Ltd.) AIR 1996 SC 710 – when the language of an Act is clear, preamble cannot be invoked to curtail or restrict the scope of an enactment.

• Kashi Prasad v. state AIR 1950 All 732 – the preamble cannot be used to defeat the enacting clauses of a statute, it can be treated as a key for the interpretation. • Kesavananda Bharti v. State of Kerala AIR 1973 SC 1461 – historical decision, 13 judges sat for 68 days in its original jurisdiction overruled re Berubari case 1960 was filed u/A/ 143 (1) for Presidential Reference & held that Preamble is a part of Constitution & has a significant role in interpretation of statute.

 In State of Rajasthan v. Basant Nahata (SC,2005), the Supreme Court has held that where because of vagueness or ambiguity, language of the provision is capable of more than one meaning, the preamble, statement of objects and reasons and other provisions of the Act should be taken into account, if they provide good means of finding out the meaning but not where the expression used is incapable of any precise meaning.  If there is a conflict between the enacting part and the preamble, the enacting part must prevail [Re Puranmal Saraogi (1979) ].

4) MARGINAL NOTES (M.N.) – - M.N. are inserted at the side of the sections, also known as side notes.

- olden time used to be taken for interpretation.

• Modern view – M.N. should have no role to play - not part of statute –reason – bcoz not inserted by legislature. However, where M.R. are inserted by legislature it can be consider as aid of interpretation. • Bengal immunity Co. v. State of Bihar AIR 1955 SC 661 – majority held – marginal note to Art. 286 of the Constitution was a part of Constitution & treated as a aid to interpretation.

• K.P. Varghese v. Income Tax Officer AIR 1981 SC 1922 – even if the language of the section is clear & unambiguous but being part of the statute, it prima facie furnishes some clue as to the meaning & purpose of the section. • S.P. Gupta v. President of India AIR 1982 SC 149 – in case of ambiguity in the meaning of the provision in the body of the statute, the marginal note may be looked into as an aid to interpretation.

5. HEADINGS :• Headings are of a - group of sections, or - of a single section. • Preamble to those sections or set of sections. • No ambiguity – headings has no role to play. • A heading to one set of sections cannot act as an aid to interpret another set of section. • Bhinka v. Charan Singh AIR 1959 SC 960 - appellant was a tenant – respondent sought to evict the appellant u/s/ 180 of U.P. Tenancy Act 1939 – (“a person retaining possession of a plot of land without the consent of the person entitled to admit him, shall be liable to eject.”) Held – the SC agreeing with the contention of the appellant that s/180 has no application – he was in possession u/Order/145 of Cr. P. C. –the SC took the help of heading(‘Ejectment of persons occupying land without title.’).

• Tolly v. Giddings (1964) 2QB 354 – u/s/ 217 (1) of the Road Traffic Act, 1960, a person could be held guilty if he allowed himself to driven away in a motor vehicle without the consent of its master. The Court noted that the heading titled, ‘penalization of Taking Motor Vehicle without authority’ & this is important indication of the intension of the legislature & upheld the section. • Durga Thathera v. Narain Thathera AIR 1931 SC 597 – the court held – the heading are like a preamble which helps as a key to open the mind of the legislature but do not control the substantive section.

6. DEFINITION OR INTERPRETATION CLAUSES – • Exist in the earlier part of the statute • Purpose – extending natural meaning of some words • Binding on the court to follow the given interpretation • Exception – if the court feels that, if the definition clause applied, will results in absurdity, court will not apply • Definition clause of one statute cannot be applied to other. However, statute are in pari materia is an exception

• Whenever the word ‘includes’ is used in the definition clause – it enlarges the ordinary & natural meaning of that word. • M/S Hamdard (wakf) Labortories v. Deputy Labour Commissioner AIR 2008 SC 968 – the S.C. observed that the word – ‘includes’ = it is prima facie extensive, & ‘means and includes’ = it will afford an exhaustive explanation. • Ramanlal Bhailal Patel v. state of Gujrat AIR 2008 SC 1246 the supreme court observed that ‘includes’ = intention to enlarge the meaning of the word, ‘denotes’ = the expressions denoted therein are covered within the ambit of that particular word, ‘deemed to be’ = creates a fiction.

• State of Haryana v. Raghubir Dayal (1995) 1 SCC 133 – ‘shall’ is ordinarily mandatory but if it is sometimes not so interpreted. • The House of Lords in Carter v. Bradbeer (1975) All ER 164 – held – the use of the word ‘includes’ & so ‘bar’ means a place commonly understood as bar i.e; such counters where liquor is served & a place used for sale & consumption of intoxicated liquor.

• Mahalakshmi oil Mills v. state of A.P. – interpretation of the definition of ‘tobacco’ under the Central Excises Act and the Salt Cess Act was in question….which said – ‘tobacco means any form of tobacco whether cured or uncured & whether manufactured or not and includes the leaf, stalks and stems of the tobacco plants…’ The SC held that – the definition to be exhaustive & refused to include tobacco seeds in it as they were not mentioned in the part.

7 PROVISOS :• proviso is added to the principal clause with the object of taking out of the scope of that principal clause what is included in it & what the legislature desires to be excluded. • Rules for interpretation of Proviso – - if reasonable interpretation of the proviso is contradicting with the main provision, the proviso should prevail over the main enactment, bcoz it speaks last intention of the legislature. - But while doing so it should not be interpreted the intension of legislature in a way that to give with one hand & take away with the other.

PRIVISO

To create exceptions eg. Art.15 – state shall not discriminate – special provision for women & child.

For imposing conditions eg. Art. 311 (2) – no govt.emplyee can be dismissed, removed, or reduced in rank without an enquiry. For elaborating a new conditions Eg. Sec.135 of Companies Act – CSR – the companies net woth Rs 500 cr, or turnover 1000cr or net profit – 5cr

- No independent existence, with the repeal of the main enactment the proviso is also immediately repealed. - T. M. Kanniyan v. I.T. Officer, Pondicherry AIR 1968 SC 637- Art. 240 (1) – President empower to make rules & regulations for good governance in U.T. Provided that Art.239-A – when body of legislature is created --- President shall not make any regulation. Held – main part of provision is clear & unambiguous & confers plenary power to the President could not be curtailed by proviso.

• R. v. Leeds Prison (Governor) 1964 2 QB 625 the main part of the enactment cannot be so interpreted as to render its proviso unnecessary & ineffective. • Vishesh kumar v. Shanti Prasad AIR 1980 SC 892 – held – a proviso cannot be permitted by construction to defeat the basic intent, expressed in the substantive provision. • Imp. – proviso cannot be divorced from the provision, can be construed harmoniously with the main provision.

Casus Omissus = cases of omission

• court cannot read anything into a statutory provision which is plain & unambiguous. • A casus omissus cannot be supplied by the court except in the case of clear necessity & when reason for it is found in the four corners of the statute.

When omitted words can be supplied – • Lacuna of the language is of such a nature that the true intention of the legislature could not be established. • Jacob Mathew v. State of Punjab (2005) 6 SCC 1 – s/304- A of IPC casus omissus provided. Held – the word “gross” has not been used, yet it is settled in criminal law, negligence & recklessness to be held at high degree.

ILLUSTRATIONS:• Appended to a section with the purpose of illustrating the law explained therein. eg. Sec.378 of IPC – various aspect of theft, Law of Contract etc. • Good aid for interpretation. • Part and parcel of the Act. • Maheshchand Sharma v. Raj Kumar Sharma AIR 1996 SC 869 - illustrations - part of the section - it helps to elucidate the principle of the section.

9. Exceptions and Saving Clauses : EXCEPTION • Purpose – exempting something which would otherwise fall within the ambit of the provision. • eg. 5 – exceptions – sec.300 of IPC (culpable homicide is not murder) • Director of Secondary Education v. Pushpendra Kumar AIR 1998 SC 2230 – Held – exception cannot be interpreted as to subserve the main enactment, & thereby nullity. • Collector of Custom v. M/s Mode Rubber Ltd. AIR 2000 SC 1844 – Held – exception must be construed with regard to that principal clause.

Saving Clause :• Appended in cases of repeal & re-enactment of a statute to ensure the continuation of past rights. • eg. – Hindu Adoption and Maintenance Act, 1956 -- S/30 - ‘Nothing contained in this Act shall affect any such adoption made before commencement of this Act shall be determined as if this Act had not been passed.’ • Agricultural Anti Processed Food Products v. UOI AIR 1996 SC 1947 – the SC while interpreting the saving clause, saved rights in existence before the order & did not confer any new right.

10 EXPLANATIONS :• Whenever legislature feels that explanation is required – to remove doubts • Offers additional support, sometimes inserted by way of amendment. • Cannot take away right conferred • Court’s duty to harmonize in case of conflict • If explanation creates legal fiction, it will be applicable for which it was created. • e.g.. S/125 Cr. P.C. (1) (3) Explanation to minor/wife

• 125. Order for maintenance of wives, children and parents. • • • • • •

•

•

(1) If any person having sufficient means neglects or refuses to maintain(a) his wife, unable to maintain herself, or (b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or 1. Subs. by Act 45 of 1978, s. 12, for" Chief Judicial Magistrate" (w. e. f, 18- 121978 ). (c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or (d) his father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate not exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct: Provided that the Magistrate may order the father of a minor female child referred to in clause (b) to make such allowance, until she attains her majority, if the Magistrate is satisfied that the husband of such minor female child, if married, is not possessed of sufficient means. Explanation.- For the purposes of this Chapter,(a) " minor" means a person who, under the provisions of the Indian Majority Act, 1875 (9 of 1875 ); is deemed not to have attained his majority; (b) " wife" includes a woman who has been divorced by, or has obtained a divorce from, her husband and has not remarried.

• Bengal Immunity Co. v State of Bihar AIR 1955 SC 661 – part of section to which it is appended, it should be read together to know the true meaning of the provision. • Bihata Co-operative Development Cane Marketing Union v. State of Bihar AIR 1967 SC 389 – conflict between provision & explanation should be interpreted harmoniously. • S. Sundaram v. V.R. Pattabhiraman AIR 1985 SC 582 – explanation is not a substantive provision but merely to explain or clear ambiguity in the statutory provision.

11. SCHEDULES :• They are at the end & contain minute details for working out the provision of the express enactment • Schedule cannot override the provisions of the express enactment. • e.g. schedules mentioned in the Constitution • M/S. Aphali Pharmaceuticals Ltd. V. State of Maha. AIR 1989 SC 2227 - clash between main body of an Act & schedule, the schedule has to be rejected.

 PART I • THE UNION AND ITS TERRITORY 1. Name and territory of the Union.— (1) India, that is Bharat, shall be a Union of States. (2) The States and the territories thereof shall be as specified in the First Schedule. (3) The territory of India shall comprise— (a) the territories of the States; (b) the Union territories specified in the First Schedule; and (c) such other territories as may be acquired. *Schedule 1 --1. Andhra Pradesh 2. Assam 3. Bihar 4. Gujarat 5. Kerala 8. Maharashtra 9. Karnataka 10. Orissa 11. Punjab 12. Rajasthan 13. Uttar Pradesh 14. West Bengal 15. Jammu and Kashmir…..29 Jharkhand.

12 Punctuations :• e.g. - semi-colon (;), colon (:), comma (,), full stop (.), hyphen (-), dash (-), bracket (())etc. • Court does not allow any deviation from the grammatical meaning as that is the will of legislature. • Ramavater v. Assistant Sales Tax Officer AIR 1961 SC 1325 – held – expression ‘betel leaves’ has been used by the legislature in its ordinary sense & therefore it cannot mean vegetable

• B.K. Mukherjea, J., Aswini Kumar Ghose v. Arabinda Bose AIR 1952 SC 369 – “Punctuation is a minor element in the construction of a statute, & very little attention is paid to it by English Court. I need not deny that punctuation may have its uses in some cases, but it cannot certainly be regarded as a controlling element & cannot be allowed to control the plain meaning of the text.” • In Gopalan’s case Kania C.J., in construing Art.22 (7) (a) of the Constitution, referred to the punctuation & derived assistance from it in reaching conclusion that Parliament was not obliged to prescribed both the circumstances under which, & the class or Classes, in which a person may detained for a period longer than 3 months, without obtaining the opining of Advisory Board & that Parliament on a true construction of the clause could prescribed either or both.

 Sometimes, the meaning of particular word depends on the meaning of the words associated with it. • Rainbow Steel Ltd. v,. Commissioner Sales Tax AIR 1981 SC 2101 – whether thermal power plant sold in perfect working condition would be an old machinery within the U.P. Sales Tax Act, 1948? Held – the meaning of the word ‘old’ depend on the words associated with it in the enactment. Thus it could not be held to be an old machinery. • Geetika Panwar v. Govt. of NCT of Delhi AIR 2003 Delhi 317 – interpretation of the semi colon placed after the word ‘ Administration of Justice’ in entry 11 A of the 7th schedule of the Constitution was in question. Held – punctuation mark cannot be allowed to control the plain meaning of the text.

External Aids to Interpretation • Not parts of statute • Dictionaries, textbooks, historical background, legislative history & practice – judicial conveyancing, administrative & commercial

• Dictionaries - History • Oldest known dictionary – Akkadian wordlist discovered in Ebla (modern Syria) dated roughly 2300 BCE • A Chinese – 3rd century, Sanskrit –’Amarakosa’, by Amara Sinha C. in 4th century • Word – ‘dictionary’ was invented by an Englishman – John of Garland in 1220, he had written a book ‘Dictionarius to help with latin diction’. • First English alphabetical dictionary was ‘A Table Alphabeticall’, written by – English School teacher –Robert Cawdrey in 1604.

• Collection of words, also known as ‘lexicon’. • Can be consulted by the courts to know ordinary meaning • Authoritative dictionary • e.g. Black’s Law Dictionary, Law Lexicon • Diverse meaning – difficult for a court to choose.

Borrow - loan

Temple donation

Employe e - salary School - fee

Govt. tax

Marriage - dowry

money Court fine

Kidnapper - ransom

Divorce alimony

You owe debt

Illegally received - bribe

 Ramavatar v. Assistant Sales Tax Officer AIR 1961 SC 1325 • 3 petitions - Akola - u/Art.32, --- C. P. Berar Sales Tax Act,1947 • Que – whether betel leaves are vegetables & therefore exempt from imposition of sales tax • SC relied on dictionary meaning of vegetable – consisting of, or derived or obtained from plants • Held –dictionary meaning could not reflect the true intention of framers of Sales Tax Act, tax could be levied.

Motipur Zamindary Co. Pvt. Ltd. V. State of Bihar AIR 1962 SC 660 – whether sales tax could be levied under the Bihar Sales Tax Act, 1947 on the sugarcane? • The SC rejected the dictionary meaning & interpreted that vegetables mean only such can be grown in a kitchen garden & used during lunch & dinner as article of foods.

 State of U.P. v. Kores (India) Ltd. AIR 1977 SC 122 – sales tax was imposed on paper – que – whether carbon paper was paper for purpose of tax? • Held – ordinary paper used for writing, printing etc. but carbon paper is a special paper used for making copies of documents, therefore tax could not be levied.  State of Orissa v. Titagarh Paper Mills co. Ltd. AIR 1985 SC 1293 - the dictionary meaning of a word cannot be looked at where that word has been statutorily defined or judicially interpreted.

Text Books – • To arrive at true meaning of enactment • Examples - Manusmriti, Yajnavalkya, Vijnaneswar, Jimutvahan & Kautilya etc. • Mulla • Instances of either rejection & acceptance • Bastin v. Davies (1950) 2KB 579 – Lord Goddard C.J., while interpreting ‘substance’ – in the light of discussions in the 12th ed. of Sales of Goods Act by Bell – “this court would never hesitate to disagree with a statement in a text book, however authoritative….” • Kesavananda Bharti v. State of Kerala AIR 1973 SC 1461

• Historical Background – • The court is liberty to look into history of the law & seek help from historic facts, which in the opinion of the court, is necessary to get true meaning. • Express Newspaper Pvt. Ltd v. UOI AIR 1958 SC 578 – history of legislation & other like external sources may be looked into by a court in a case of ambiguity. • State of W.B. v. Nirpendra Nath AIR 1966 SC 447 – the SC held that – courts are free to consult the earlier state of the law to find out the true meaning of an enactment.

Legislative History – • Past – legislative history used as aid to know its true context • Modern view – not permissible • Kesavananda Bharti v. State of Kerala Speeches made by members of legislature in the course of debates could be perused to find out the true intention of legislature but limited to interpretation of Constitution & not to other statutes. • K.P. Varghese v. I.T. Officer AIR 1981 SC 1922 - speeches made by members of legislature when a bill for enacting a statutory provision is being debated are inadmissible but speech made by the mover of the Bill can certainly be referred for purpose of ascertaining the intention of legislature. Example – speech made by the Finance Minister, while moving the amendment introducing sec. 52 (2) I.T. Act, 1962 is extremely relevant.

• UOI v. Harbhajan Singh Dhillon AIR 1972 SC 1061 – the SC referred to speeches made in the Constituent Assembly & held that wealth tax on net wealth incomes within residuary power of the Parliament. • Sub-Committee of Judicial Accountability v. UOI AIR 1992 SC 320 – while interpreting Judges Enquiry Act, 1968 held that consideration of entire background of statutes as aid for interpretation. • Indira Sawhney v. UOI AIR 1993 SC 477 – question of interpretation of ‘backward class of citizens’ used in Art.16 (4) , held - permissible to refer to the speech of Dr. B.R. Ambedkar to understand the objective behind it.

• M. Ismail Faruqqui v. UOI AIR 1995 SC 605 – the SC in a reference to u/A/ 143 held that – White Paper issued by govt. stating detailed facts which led to the enactment of ‘the Acquisition of Certain Area of Ayodhya Act, 1993’ is also admissible as an external aid to interpretation the background of Ram Janmabhumi - Babri Masjid dispute. • Rasila S. Mehta v. Custodian, Nariman Bhavan,Mumbai AIR 2011 SC 2122 held – objects & reasons of the Act to be taken into consideration in interpretation.

• R. Travaux Preparation – • French = preparatory works includes official record of a negotiation - sometimes published – useful in clarifying the intention of treaties. • May serve as an aid to interpretation of the treaty like legislative & drafting history. • Vienna Convention on the Law of Treaties – speaks that – these documents can be used to supplement the interpretation of a treaty when in case of ambiguity.

• Contemporanea Expositio Contemporanea expositio est optima et fortissinia in lege = usage & practice developed under a statute is indicative of meaning ascribed to its words by contemporary opinion PRACTICE – Judicial, Conveyancing, Administration & Commercial • Best & strongest in law • Confirmed by Apex Court – Desh Bandhu Gupta v. Delhi Stock Exchange Asson Ltd AIR 1979 SC 1049 – guide to interpretation. • Ellenborough – practice receives judicial or legislative approval it gains additional weight.

• Not recognized as aid…but occasionally been given weight by court • State v. Sajjan Singh AIR 1953 Pepsu 146 – the Pepsu HC refused to follow an administrative practice. Refused anticipatory bail u/s/497 of Cr. P. C. 1898 • State v. Chhandami Lal AIR 1957 SC 639 – while interpreting sec. 208 of Cr.PC,1908, the Allahabad HC held – clash between a law & administrative Practice ..law prevail. • J.K. Steel Ltd. V. UOI AIR 1970 SC 1173 – accepting the importance of commercial practice, held – in interpreting taxes it is just & fair to recognize the exemptions granted.

• Chapter V – Maxims of Statutory Interpretation • History of Latin Language – • Latin language (lingua latina) – Italic language spoken in Latium (modern Lazio), Rome was town of Latium.

• Rome gradually expanded its influence over other parts of Italy & Europe, North Africa & middle East. • Latin was used throughout empire as the language of law, administration & routine. • During 15th century Latin began to lose its dominant position…but modern Latin was used by Roman Catholic Church until the mid of 20th century particularly in Vatican City.

• Family of Languages • Modern Romance language - French • Germanic languages – English, German, Swedish etc. • Indo-Iranian languages – Hindi, Urdu, Sanskrit etc • Slavic languages – Russian, Polish, Czech etc. • Baltic languages – Latvian & Lithuanian etc. • Celtic languages – Welsh, Irish, Gaelic, Greek etc.

Delegatus non potest delegare – • ancient Latin maxim – frequently been characterized as originated in the Law of Agency, but has an equal long pedigree in public law. • 13th century, Bracton appears to have enlarged a Roman law principle that a Procurator(treasury officer of a Rome) could not appoint someone to act his behalf. He applied it to the delegation of powers by the King, Judges as well as Attorneys.

• Def – when a statute confers legislative powers on an

authority further delegates those powers to another subordinate authority or agency, it is called subdelegation.  Transfer of power from superior subordinate to his subordinate  The enabling Act = ‘Parent Act’ & delegated & sub Delegated legislation = ‘Children Act’.  Generally not allowed  Only ,under certain circumstances it is allowed e.g. Essential commodities Act Sec.3 empowers central govt. Sec.5 empowers central govt. to delegate power to state govt.

• Allingham v. Minister of Agriculture & Fisheries (1948) 1 All E R 780, the Committee was empowered by the Minister of Agriculture to issue directions. The Committee sub-delegated to its subordinate, who issued a direction , which was challenged. Held – sub-delegation not permissible, direction issued was ultra vires.  Central talkies v. Dwarka Prasad AIR 1961 SC 606 The U.P. (Temporary) Control of Rent And Eviction Act,1947for filing suit for eviction of tenant –owner should obtained permission –District Magistrate or officer subordinate to him authorized by D.M. challenged- held valid.  Ganapati Singhji v. st. of Ajmer AIR 1955 SC 188 -Chief commissioner empowered to make rules for maintenance of fairs –made rules & entrusted duties to the District Magistrate to alter if necessary-challenged- held-sub delegation invalid

• Control of Sub – Delegation Judicial control substantive ultra virus 1 ) Parent Act unconstitutional 2 ) D.L. ultra vires to Consti. 3 ) D.L. ultra vires to parent Act 4 ) Mala-fide 5 ) Unreasonableness 6) Sub-delegation 7 ) Exclusion of J.R. 8 ) Retrospective effect

Procedural ultra virus 1) Antecedent publicity 2) Publication 3) Consultation

Legislative Control A) Proceeding in Parliament: - Lok Sabha : Rule 70 & Rajya Sabha : Rule 65 - A bill for delegation accompanied by a memorandum explaining proposal, scope, exceptional or normal etc. - Debate on delegating Bill - Asking questions & giving notices B) Laying on the Table C) Scrutiny Committee a. Lok Sabha Committee on Subordinate Legislation b. Rajya Sabha Committee on Subordinate Legislation.

 Expressio Unius Est Exclusio Alterius • Meaning – ‘the express mention of one thing excludes all others.” Usually indicated by a word such as “includes”, “such as”. • A statute granting certain rights to ‘Police, fire & sanitation employees would be interpreted to exclude other public employee. • Application – Constitution, treaties, wills, contracts & statutes etc. • Maxim is employed to denote the intention of the legislature & not obligatory rule of law.

• Expressum facit cessary tacitum • Synonym to expressio unius est exclusio alterius says that –anything not mentioned is excluded. • Swastik Gases v. Indian Oil Corp. (2013) – in this case, an agreement was executed in Kolkata, while the other elements of the action had taken place in Jaipur. – clause 18 deal with “the agreement shall be subject to the courts at Kolkata.” – appellant had filed a petition in Rajasthan H.C. where respondent resisted – held – dismissed appeal & held that- absence of words like ‘alone’, ‘only’, ‘exclusive’ etc does not make any material difference in deciding jurisdiction of the court. The very existence of jurisdiction clause makes it clear.

In Pari Delicto Potior Est Conditio Possidentis • This maxim is not for plaintiffs or defendants, but founded on the principles of public policy. • Both parties are equally in the wrong, the position of the possessor is more favourable. • Court will not interfere with the Status quo. • e.g. where plaintiff sought to benefit from insider trading has filed a suit against the person who provided false inside information, the court would not award damages.

• Valjibhai Jagjivanbhai v. State of Gujrat 2004 the heir of Nathiben has complained about the illegal transfer 23 years after the transaction. The transfer & mutation entries were effected & certified in July 1981. The petitioners had made investment with introduction of Town Planning scheme, converted land into non agriculture. Nathiben expired in1996 & complained made to the collector in 2003. Held mutual fault between two parties, the condition of the party in possession is better one.

• Generalis Specialibus non derogant – (Rule of implied exception) • A general Act is not construed as repealing a particular or special Act. • If a particular Act is earlier in time but if it deals with a special object, a later enacted general law will not abrogate the particular Act.

• This maxim was applied as early as in 1884 in Mary Seward v. The Owner of the ‘Vera Cruz’whether sec 7 of the Admiralty Court Act of 1861 also gave jurisdiction over claims for loss of life which otherwise would have come under the Fatal Accidents Act,1955. Held – Admiralty Court had no jurisdiction. • Niraj Bhuwania v. The State of Bihar 9th March 2016 – it has been argued by the petitioner that the jurisdiction of the police to investigate the offence should be repelled by this court for the reason that the VAT Act constitutes a special Act & would thus oust the mode & manner of investigation under the general Act namely Cr.P.C.

In bonam Partem – it connotes that words must be taken in a lawful & rightful sense. • Lawful sense = legitimate & recognized by law. • e.g. execution of decree for attachment of property – it has been seen that the seizure is lawful & that the property belong to debtor. Further the act must be rightfully done.

Chapter VI

– Interpretation with reference to the subject matter & the purpose • Classification with reference to – duration, method, object, extent of application A) Classification with reference to duration 1. Temporary Statute – such an Act continues in force, unless repealed earlier, until the time so fixed. After expiry need to continue, a new enactment is required. e.g. the Finance Act. 2. Permanent Statute – no such period has been mentioned but may be amended or replaced by another Act.

B) Classification with reference to method – 1. Mandatory, imperative or obligatory Statute – this compels performance of certain things must be done in a certain manner & their omission has been held fatal to its validity. 2. Directory or Permissive Statute – it merely directs or permits a thing to be done without compelling its performance.

C) Classification with reference to object – 1) Codifying Statute. 2) Consolidating Statute. 3) Declaratory Statute. 4) Remedial Statute. 5) Enabling Statute. 6) Disabling Statute. 7) Penal Statute. 8) Taxing Statute. 9) Explanatory Statute. 10) Amending Statute. 11) Repealing Statute. 12) Curative or Validating Statute.

1) Codifying Statute – codification of preexisting provisions in different statute, etc. e.g. the Hindu Succession Act,1956 – codifying statute with respect to intestate succession.

2) Consolidating Statute - it collects all statutory enactments on a specific subject & gives them shape of one statute. e.g. In England – the Law of Property Act, 1925 consolidates the Acts of 1922 & 1924 In India – the Code of Criminal Procedure, 1973 is a consolidating statute.

3) Declaratory Statute – - to remove doubts in the statutory law. - passing of a Declaratory Law becomes desirable when certain expressions are being misunderstood. - it contains preamble & the word declared as well as the word enacted. - does not create a substantial rights, simply declares law

• retrospective effect but matters cannot be reopened . - during pendency of appeal, a declaratory Act is passed, the appeal will be decided on the basis of such Act. e.g. The Income Tax Act, 1985 - added explanation 2 to Sec.40 Explanation 2 – for the removal of doubts, it is hereby declares that for the purposes of this sub clause, any sum paid on account of any rate or tax levied includes any sum eligible for relief of tax under section 90A

e.g. The Finance Act, 1987 – amended the definition of “owner of house property” in sec. 27 by declaratory Act.

4) Enabling Statute – • by this legislature enables something to be done. • Purpose – public good • It makes doing of something lawful which would not be otherwise lawful. e.g. – Acts authorizing compulsory acquisition of land for public benefit. • Such statute grants power to make rules etc. e. g. – sec.49-A & 49-A (2) of the Advocates Act,1962

5) Penal Statute – • a penal statute is one which punishes certain acts or wrongs. • Statute may be in the form of a comprehensive criminal code providing punishments for different wrongs. • e.g. the Indian Penal Code, 1860., The Arms Act, 1959. The Prevention of Food Adulteration Act, 1954 • Penalty – fine, forfeiture of property, imprisonment & death etc. • Lord Esher M.R. – if there are two reasonable construction we must fallow the more lenient.

• Interpretation of penal provision must be in consonance with Fundamental rights. e.g. double jeopardy, self incrimination • In applying & interpreting penal provision public policy also taken into consideration. • Municipal corp. of Delhi v. Laxmi Narain Tondon AIR 1976 SC 621 definition of ‘sale’ in the Prevention of Food Adulteration Act, 1954. Held – ‘sale’ would include all commercial transactions where under an adulterated article of food was supplied for consumption.

6) Remedial Statute – • • • •

(welfare / beneficial legislation) whereby new remedy is conferred Object – to make improvements in enforcement of rights & to remove doubts in former law Liberal construction & doubts are resolved in favor of the persons for whose benefit the statute is enacted. e.g. the Maternity Benefit Act, 1961, the Workmen Compensation Act, 1923.

• In Act the words “for remedy whereof” have been used immediately before the language of enactment. • When the statute does not make the offender liable to any penalty, classified as remedial. • J & F Stone Lighting & Rado & Haygarth (1966) 3 All E R 539 (HL) – the factories Act should be regarded as beneficial legislation rather than a penal. • The same view expressed by Supreme Court in Bhagirath Kanoria v. State of M.P. AIR 1984 SC 1988

• M/s Glaxo Laboratories Ltd. V. Presiding Officer, Labour Court , AIR 1984 SC 505 – A standing order defining misconduct & which would enable the employer to impose penalties was held to be penal enactment. • The labour & welfare legislations should be broadly & liberally interpreted & while interpreting them due regard to the DPSP & international conventions must be given. • M.C. Mehta v. State of Tamil Nadu – the Child Labour Prohibition Act, 1986 was interpreted – the Court having regard to the DPSP (Arts 39 (e), 39 (f), 45, 47), F. Rt. 24 & International Convention on the Right of Children & directed a survey of child labour & its prohibition but also directed payment Rs. 25000 as contribution by the employer to the child rehabilitation welfare fund

• In case of social benefit oriented legislation –the Consumer Protection Act, 1986 - provision capable of two construction should preferred which is more beneficial to those in whose interest the Act may have been passed. • In Noor Saba Khatoon v. Mohd. Qasim AIR 1997 SC 3280 – held –effect of a beneficial legislation is not defeated by a subsequent legislation except through a clear provision. The rights of the minor children, irrespective of their religion, to get maintenance from their parents u/s/ 127 of Cr. P. C. was interpreted not to have been taken away in respect of Muslims by the Muslim Women (Protection of Right on Divorce) Act, 1986.

7) Taxing Statute – • Statute imposes taxes on income or certain other kinds of transaction. • object – collect revenue, tax levied for public purpose, & used for welfare activities of the people. • May be in the form of income tax, wealth tax, sales tax, gifts tax etc. • Tax can be levied only when a statute unequivocally so provides by using express language.

• Fee – specific service rendered to the fee payer • Tax – no direct service but the service assumes the form of public expenditure rendered to the public at large.

Rules of Interpretation –Taxing Statute a) charging section - -- before taxing any individual it must be established that the person to be taxed falls within the purview of the charging section by clear words.

• In Calcutta Jute Manufacturing Co/ v. Commercial Tax Officer (1997) Held – in interpreting a taxing statute, one has to look into what is clearly stated. There is no room for searching the intentions, presumptions or equity. • In Mathuram Agarwal v. State of M.P. (28th Oct 1999) – Held – words cannot be added or substituted to find out a meaning in a statute so as to serve the intention of the legislature. Every statute must contain three aspects 1. subject of tax, 2.person to be taxed, 3. rate of tax.

b) Strict & Favourable Construction – • Taxing enactment should be strictly interpreted. • The Courts should not strain words & find unnatural meaning to fill loopholes. • If the provision is capable of two meaning, then the one favouring the assesse must be taken into consideration.

c) Clear intention to impose or increase tax – the intention to impose or increase tax must be clear & unambiguous.

d) Prospective Operation – • cardinal principle • No retrospective effect to fiscal statute is possible unless the language is very clear & plain.

e) Meaning in Common Parlance – • In finding out the meaning of a taxing statute, in common usage, in commercial & trade circles must be considered. • In Annapurna Biscuits manufacturing Co. v. Commissioner of Sales Tax AIR 1981 SC 1656 – Held – statute imposing a tax should be interpreted in the way which they are understood in ordinary language.

f) Imposition of tax by authority of law – • the taxes & assessment can only be imposed by an authority established under a statute. • A tax can only be levied by an Act of Parliament. • In Atlas Cycles Industries Ltd. V. State of Haryana AIR 1972 SC 121 Held - notification imposing a tax cannot be deemed to be extended to new areas in the Municipality.

g) No presumption as to tax – • It cannot be drawn by implication or analogical extensions. • In Mohammed Ali Khan v. Commissioner of Wealth Tax AIR 1997 SC 1165 – Held – no tax can be imposed by inference, analogy or probing into the intention of legislature.

h) Double taxation – • in interpreting fiscal statute, if one meaning gives rise to single meaning, whereas other meaning gives rise to double taxation, then the interpretation must be in favour of single taxation.

i) Delayed payment of tax – • Interest is levied by tax authority according to law.

j) Penalty – no criminal act (mens rea) • The general rule of construction is that in case of doubt, it is decide in favour of tax payer even if such decision is detrimental to govt.

8) Explanatory Statute • Which explains the law • Keshavlal v Mohanlal AIR 1968 SC 1336 – A statute is enacted to clarify ambiguity as to the meaning of an expression used in a previous statute. • The Royal Mines Act, 1688 - in Britain the Act was passed to encourage mining. While the Royal Mines Act,1963 was enacted for better explanation of the earlier Act. The latter is an example of explanatory Act.

9) Amending statute – • It makes an addition to or operates to change the original law to more effectively carry out the purposes. • An amending statute cannot be called as repealing statute. It is the part of the law it amends. • e.g. – Direct Tax Amendment Act, 1974 - Taxation Laws Amendment Act, 1962 - Criminal Laws (Amendment) Act, 1983 - Land Acquisition (Amendment) Act, 1984

10) Repealing Statute – • Which repeals an earlier statute • This revocation or termination may be express or explicit language or necessary implication. • e.g. the Hyderabad District Municipal Act,1956, which repealed the Hyderabad Municipal and Town Committees Act,1951. • e.g. the Code of Criminal Procedure,1973 repealed & re-enacted the Code of Criminal Procedure,1898.

11) Curative or Validating Statute – • Passed to cure defects in prior law, or to validate legal proceedings, instruments or acts of public & private administrative authorities Purpose – to validate some actions which would otherwise be unlawful or which may have been declared invalid by a court. • A validating legislation normally contains the expression – ‘notwithstanding any judgment, decree or order of any court.

 Classification with reference to the extent of

application

A. Public Statute – it relates to a matters of public policy, such a statute may be general, local or personal in nature. • Law governing the state • Ex. Constitutional Law, Administrative law, Public international Law B. Private Statute – it concerns with matters which are individual in nature or is related to a body which has no public consequences. • Law by which the state governs the conduct of its citizens • Ex. Contracts, torts Criminal law, property law

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