INTERPRETATION OF STATUTES

Introduction:

Meaning of Interpretation –

The word Interpretation is derived from the Latin term ‘interpretari’, which means to explain,
expound, understand, or to translate. In simple terms it is the action of explaining the meaning
of something. It is a process through which one ascertains the true and correct intention of the
law making bodies as is laid in the form of statutes. Hence, 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.

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.”

According to Gray “The process by which a Judge (or indeed any person, lawyer or layman
who has occasion to search for the meaning of a statute) constructs from the words of Statute
book a meaning which he either believes to be that of a legislature or which he proposes to
attribute to it, is called interpretation.”

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. 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.

Construction: Meaning -

In simple words, construction is the process of drawing conclusions of the subjects which are
beyond the direct expression of the text. The courts draw findings after analyzing the meaning
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of the words used in the text or the statutes. This process is known as legal exposition. There
are a certain set of facts pending before the court and construction is the application of the
conclusion of these facts.

It means drawing conclusions on the basis of true spirit of the enactment even though the
same doesn’t appear if the words used in an enactment are given their natural meaning.

The objective is to assist the judicial body in determining the real intention of the legislature.
Its aim is also to ascertain the legal effect of the legal text.

Difference between Interpretation and Construction

Interpretation Construction

In law, interpretation refers to exposing Construction, on the other hand, refers

the true sense of the provisions of the to drawing conclusions from the written
statutes and to understand the exact texts which are beyond the outright
meaning of the words used in any text. expression of the legal text.

Interpretation refers to the linguistic The purpose of construction is to

meaning of the legal text. determine the legal effect of words and
the written text of the statute.

In the case where the simple meaning of In the case where the literal meaning of
the text is to be adopted then the concept the legal text results in ambiguity then
of interpretation is being referred to. the concept of construction is adopted.

Aids of Interpretation:

A) Internal Aids of Interpretation –

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1. Short Title: The short title is the nickname given the statue for identification only, such as
Indian Evidence Act, 1872, Indian Penal Code, 1860, etc. It identifies the Act and not describes
it. It only provides facility of reference.

2. Long Title: The Long Title is mentioned at the head of the statue and contains a brief but
fairly understandable general description of the purpose of the statue. For instance, the long
title of the Code of Criminal Procedure, 1973 reads as- An Act to consolidate and amend the
law relating to criminal procedure.

Case Law: In Fisher v/s Raven 1964 AC 210 (HL)

Interpretation of the words ‘obtained credit’ in Section 13(1) of the Debtor’s Act, 1869 was
involved. The House of Lords looked at the long title of the Act which reads ‘An Act for the
Abolition of Imprisonment for Debt, for the punishment of fraudulent debtors, and for other
purposes’ and held that the words refer to credit for the payment of money.

3. Preamble: Preamble contains the main object of the Act. It is a preparatory statement and
contains the recitals showing the reason for enactment of the Act. For e.g. the Preamble of the
Indian Penal Code, 1860, is “Whereas it is expedient to provide a general Penal Code for India;
it is enacted as follows”. The preamble is an intrinsic aid in the interpretation of an ambiguous
act. Therefore, in case of any ambiguity or uncertainty, the preamble can be used by the courts
to interpret any provision of that statute.

Case Law: Kesavananda Bharati v/s State of Kerala, AIR 1973 SC 1461

The apex court strongly relied on the Preamble to the Constitution of India in reaching a
conclusion that the power of the Parliament to amend the constitution under Article 368 was
not unlimited and did not enable the Parliament to alter the Basic Structure of the Constitution.

Limitations of Preamble as Internal Aid to Construction –

a) Preamble can be resorted to only when the language of a provision is reasonably capable of
alternative construction.

b) Preamble cannot either restrict or extend the meaning and scope of the words used in the
enacting part.

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c) In case of conflict between Preamble and a section, the preamble would succumb and
section shall prevail.

d) Preamble cannot be regarded as source of any substantive power or of any prohibition or

limitation.

4. Marginal Notes: Marginal Notes are those notes which are inserted at the side of the
sections in an Act and express the effect of the sections. These are also known as side notes.
Marginal Note of Section 94 of Indian Penal Code reads – “Act to which a person is compelled
by threats”

Case Law: Wilkes v/s Goodwin [1923] 2 KB 86.

It was held that the side notes are not part of the Act and hence marginal notes cannot be
referred.

Case Law: Bengal Immunity Company v/s State of Bihar

The Supreme Court held that the marginal notes to Article 286 of the Constitution was a part
of the Constitution and therefore, it could be relied on for the interpretation of that Article.

Limitations of Marginal Notes as Internal Aid to Construction –

a) Marginal notes are very rarely used for interpretation as they are not considered to be a
good aid to construction.

b) Only those marginal notes can be used for construing a provision which have been inserted
with assent of the legislature.

c) Marginal notes can be called in aid only when language suffers from ambiguity and more
than one construction is possible.

d) Marginal notes cannot frustrate the effect of a clear provision.

5. Headings: Headings are of a group of sections or of a single section. These are generally
treated as preambles to the group of the sections or the individual section to which they are
appended. For Instance, the heading before Section 172 to 190 of Indian Penal Code reads: “Of
contempts of the lawful authority of public servants.”

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Case Law: Shelly v/s London County Council, 1949 AC 56

A heading to one set of sections cannot act as an aid to interpret another set of sections.

Case Law: Bullmer v/s I.R.C.

Chapter heading can be used to interpret ambiguous provisions.

Case Law: N.C. Dhoundial v/s Union of India

It was held that “Heading” can be relied upon to clear the doubt or ambiguity in the
interpretation of the provision and to discern the legislative intent.

Limitations of Headings as Internal Aid to Construction –

a) Headings can neither cut down nor extend the plain meaning and scope of the words used
in the enacting part.

b) Headings cannot control the clear and plain meaning of the words of an enactment.

6. Definition or Interpretation Clauses: These exists generally in the earlier part of the
statute. Certain words or expressions used in the different provisions of the statute are defined
in these clauses. Naturally, the meaning of these words wherever they exists in the statute will
be in accordance with their meaning given under definition clauses generally.

Case Law: State of Bombay v/s Hospital Mazdoor Sabha

The JJ Group of Hospitals was held by the Supreme Court an industry within the meaning of
the Industrial Disputes Act, 1947. The court observed that Section 2 (J) of the Act of 1947 is an
inclusive definition clause and is, therefore, liable to be interpreted in an extended way and
not in a restrictive way.

Case Law: Lucknow Development Authority v/s M.K. Gupta

The Supreme Court ruled that: ‘Housing construction’ comes within the meaning of ‘service’
as defined in section 2(o) of the Consumer Protection Act, 1986, even though the provision
gives an inclusive definition of the word ‘service. In the aftermath of the case, the Parliament
amended the section and expressly included ‘housing construction’ in ‘service’.

Case Law: Delhi Judicial Service Association v/s State of Gujarat

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The words “including the power to punish for contempt of itself” occurring in Article 129 of
the Constitution of India were construed by the Supreme Court. This Article declares the
Supreme Court to be a Court of Record. It was held that these words do not limit the inherent
power of the Supreme Court to punish for contempt of itself as also of subordinate courts.

7. Provisos: In some sections of a statute, after the main provision is spelled out, a clause is
added, with the opening words “provided that…” The part of the section commencing with the
words “Provided that…” is called Proviso. A proviso is a clause which is added to the statute to
accept something from enacting clause or to limit its applicability. Proviso clause of Section
120 A of IPC states that “Provided that no agreement except an agreement to commit an
offence shall amount to a criminal conspiracy unless some act besides the agreement is done
by one or more parties to such agreement in pursuance thereof.”

Case Law: Union of India v/s Sanjay Kumar Jain

The function of proviso was declared that it qualifies or carves out an exception to the main
provision.

Case Law: Union of India v/s Dileep Kumar Singh

It has been held that though a proviso does not travel beyond the provision to which it is
appended, golden rule is to read the whole Section, inclusive of the proviso in such manner
that they mutually throw light on each other and result in a harmonious construction.

A proviso may serve four different purposes –

a) Qualifying or excepting certain provisions from the main enactment;

b) It may entirely 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;

c) it may be so embedded in the Act itself as to become an integral part of the enactment and
thus acquire the tenor and colour of the substantive enactment itself; and

d) it may be used merely to act as an option addenda to the enactment with the sole object of
explaining the real intentions of the statutory provision.

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8. Illustration: Illustrations are sometimes appended to a section of a statute with a view to
illustrate the provision of law explained therein. Section 378 of IPC illustrates various aspects
of the offence of theft.

Case Law: Mahesh Chand Sharma v/s Raj Kumari Sharma

The SC observed that illustration is a part of the section and it helps to elucidate the principle
of the section.

However, illustrations cannot be used to defeat the provision or to modify the language of the
section. This is reflected by a legal maxim “Exampla illustrant, non-restringent legem” which
means examples only illustrate but do not narrow the scope of rule of a law.

9. Exceptions and Saving Clauses: Exceptions are generally added to an enactment with the
purpose of exempting something which would otherwise fall within the ambit of the main
provision. For instance, there are ten exceptions attached to section 499, IPC which defines
‘Defamation’. These ten exceptions are the cases which do not amount to defamation. Similarly
there are five exceptions attached to section 300 of the Indian Penal Code which defines
‘murder’. These five exceptions are the cases which are not murders but culpable homicide
not amounting to murder.

Case Law: Collector of Customs v/s M/s. Modi Rubber Limited

The Supreme Court held that whenever there is a provision in the nature of an exception to
the principal clause thereof; it must be construed with regard to that principal clause.

Saving clauses are generally appended in cases of repeal and re-enactment of a statute. By this
the rights already created under repealed enactment are not disturbed nor new rights are
created by it. A saving clause is normally inserted in the repealing statute. In case of a clash
between the main part of statute and a saving clause, the saving clause has to be rejected.

Case Law: Agricultural and Processed Food Products v/s Union of India

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The Supreme Court while interpreting the saving clause in the Export Control Order, 1988
held that the clause only saved the rights which were in existence before the order was issued
and it did not confer any new rights which were not in existence at that time.

10. Explanation: Explanations are inserted with the purpose of explaining the meaning of a
particular provision and to remove doubts which might creep up if the explanation had not
been inserted. It does not expand the meaning of the provision to which it is added but only
ties to remove confusion, if any, in the understanding of the true meaning of the enactment.
For instance, Section 108 of the Indian Penal Code which defines the word ‘abettor’ has five
explanations attached to it.

Case Law: Bengal Immunity Company v/s State of Bihar

The Supreme Court has observed that an explanation is a part of the section to which it is
appended and the whole lot should be read together to know the true meaning of the
provision.

The object of an explanation to a statutory provision is:

a) to explain the meaning and intendment of the Act itself;

b) 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;

c) to provide additional support to the dominant object of the Act in order to make it
meaningful and purposeful.

Limitation of Explanation as Internal Aid to Construction:

a) Explanation cannot have the effect of modifying the language of section.

b) Explanation cannot control the plain meaning of words of the section.

11. Schedules: Schedules attached to an Act generally deals with as to how claims or rights
under the Act are to be asserted or as to how powers conferred under the Act are to be
exercised. The Schedules are appended towards the end of the enactment.

Case Law: M/s. Aphali Pharmaceuticals Limited v/s State of Maharashtra

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The Supreme Court held that in case of a clash between the schedule and the main body of an
Act, the main body prevails and the schedule has to be rejected.

12. Punctuation: Whenever a matter comes before the courts for interpretation, the courts
first look at the provision as they are punctuated and if they feel that there is no ambiguity
while interpreting the punctuated provision, they shall so interpret it.

External Aids of Interpretation

1. Historical Background

This includes the original idea of drafting such an Act. The reason behind enacting such laws
the cases which influenced the parliamentarians to bring out such laws. It also includes the
debates made during passing the laws. And the first-hand hand information collected while
making the laws.

2. Reference to Reports of Committees

The reports made by the various committees during the enactment of the legislation can be
referred as it gives more clarity to the words and also helps us to understand the intention
behind the act, by this, we can figure out what was the defect or mischief which was present
in the previous law. When parliament passes the enactment based on the committee report
and there is any confusion or ambiguity in the terms of the statute that can be easily clarified
by referring that committee reports and it helps in the interpretation of the statute very
efficiently.

Case Law: Rosy and another v/s State of Kerala and others

The Supreme Court Considered Law Commission of India, 41st Report for interpretation of
section 200 (2) of the Code of Criminal Procedure, 1898.

3. Judicial Decisions (Precedents)

Every enactment made by the parliament is based on some or other case, so by referring to
the previously giving judgments by the higher courts helps us to analyse and form laws. These
judgements may be Indian judgements or foreign judgements. Foreign decisions can be taken
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into consideration when other countries also follow the same system of jurisprudence. But the
priority should be given to the Indian judgements.

4. Dictionary

When the meaning of the word is not clear in the statute, the meaning of those words can be
figured by looking into the dictionary. And there are certain words which have a different legal
definition and common English definition, so whenever we are looking for the legal meaning
of any word it is good to search that in the black dictionary.

5. Social, Political and Economical and Scientific Developments

When the statute is being interpreted it should consider the present system in society. It
should take into consideration the changes in the situations and circumstances which have
occurred after the implementation of any act. And most importantly the changes in the social
conditions and the scientific changes in terms of technology should be given at most
importance. When court starts doing this kind of interpretation this helps the legislature to
bring out the new amendments for the statute.

6. Other materials

Courts can also refer to the books, journals, papers, articles which are published by the
eminent scholars who are expert in that field.

Classification of Statute –

A. Classification with reference to duration

1. Temporary Statue: A temporary statue is the one where its period of operation or validity
has been fixed by the statue itself. A statute is temporary when its duration is only for a
specified time and it expires on the expiry of the specified time unless it is repealed earlier.
Financial Act is a good example of a Temporary Statue and it is being enacted every year.

2. Permanent Statue: It is perpetual when no time is fixed for its duration and such a statute
remains in force until its repeal which may be express or implied. Specific Relief Act, Contract
Act, Indian Penal Code, etc. are all examples of Permanent/ Perpetual Statue.
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B. Classification with reference to method

1. Mandatory, Imperative or Obligatory Statue: A mandatory statue is the one which

compels the performance of certain things or compels that certain thing may be done in
certain manner or form. A mandatory provision has to be strictly observed.

2. Directory Statue: A Directory Statue merely directs or permits a thing to be done without
compelling its performance. Substantial compliance of a directory provision is enough.

C. Classification with reference to object

1. Codifying Statue - A Codifying Statute is one which codifies the law. The code contains the
pre-existing provision in different statutes on the subject as well as the common law on it. The
purpose of a Codifying Statutes is to present an orderly and authoritative Statement of the
leading rule of law on a given subject whether those rules are to be found in statute law or
common law. For example- The Hindu Marriage Act, 1955 and The Hindu Succession Act,
1956.

2. Consolidating Statue - Consolidating statute is one which consolidates the law on a

particular subject at one place; it collects all statutory enactments on a specific subject and
gives them the shape of one statute with minor amendments if necessary. The main purpose
of consolidating statute is to present the whole body of statutory law on a subject in complete
form repeating the former statute. For example- Indian Penal Code or Code of Criminal
Procedure.

3. Declaratory Statue - A declaratory statue is a statue to remove doubts either in the

common law or in the statutory law. This may happen for, instance, where the courts have
been interpreting a particular expression as connoting a specific meaning which in the opinion
of the legislature is a wrong notion of the expression. In such case, the legislature may pass a
declaratory statute declaring the correct meaning of that expression thereby setting aside the
controversy regarding the correct meaning of the expression. The main object of such Act is to

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remove doubts as to the meaning of the existing law, or to rectify an interpretation which
legislature thinks is wrong.

The amendments introduced by the Finance Act, 1987 in so far as they related to section 27(iii)
a) and (b) which redefined the expression ‘owner of house property’, in respect of which there
was a sharp divergence of opinion amongst the High Courts, was clarifactory and declaratory
in nature and consequently retrospective.

The definition of house property has been amended under the Income Tax (Amendment) Act,
1985 through the judgement of the Supreme Court.

4. Remedial Statute - Remedial Statutes are those statutes which provide the remedy for a
wrongful act in the form of damages or compensation to the aggrieved party but do not make
a wrongdoer liable for any penalty. This types of Statute are beneficial to the weaker section
of the society. They are directed towards extending a certain benefit to the particular class of
society. Therefore they are also called as welfare legislation. For example, Industrial Dispute
Act 1947, Workmen Compensation Act 1923, Consumer Protection Act 1986. A remedial
Statute receives liberal interpretation and in case of any doubt it is resolved in favour of the
person for whose favour statute is enacted.

Case Law: Central Railway Workshop Jhansi v/s Vishwanath AIR 1970 SC 988

It is probably true that all legislation in a welfare state is enacted with the object of promoting
general welfare, but certain types of legislations are more responsive to some urgent social
demands and also have more immediate and visible impact on social vices by operating more
directly to achieve social reforms.

5. Enabling Statue - These statutes are which enlarges the common law where it is too strict
or narrow. It is a statute which makes it lawful to do something which would not otherwise be
lawful. Enabling statute is a Statute which enables something to be done. It basically gives the
power to do something. According to Craies, "many statutes have been passed to enable
something to be done which was previously forbidden by law, with or without prescribing the
way it is to be done. Sections 49-A (1) and 49-A (2) of the Advocates Act, 1961 as amended by
Act 21 of 1964 is an illustration of this kind.
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6. Disabling statute - A disabling statute is one which restricts or cuts down a right conferred
by the common law. An Act restraining a common law right is a disabling Act.

7. Penal statute - A penal statute is one which punishes certain acts or wrongs. Such a statute
may be in the form of a comprehensive criminal code or a large number of sections providing
punishments for different wrongs. Some examples of such statutes are the Indian Penal Code,
Arms Act, 1959, Prevention of Food Adulteration Act, 1954 etc.

The penalty for the disobedience of the law may be in the form of fine, forfeiture of property,
imprisonment and even death. Where obedience to law is enforced not by an individual action
but by a command of the law in the form of punishment, the statute is penal. A penalty can be
imposed only when the letter of the law says so unambiguously (clear or definite in meaning)
and any doubt has to be resolved in favour of the alleged offender.

8. Taxing statute - A taxing statute is one which imposes taxes on income or certain other
kinds of transaction. It may be in the form of income tax, wealth tax, sales tax, gifts tax etc. The
object of such a statute is to collect revenue of the government. Tax is levied for public purpose.
It is a source of revenue generation for the State. The money so collected is utilized for welfare
activities of the people. Tax can be levied only when a statute unequivocally (unmistakably;
clearly) so provides by using express language to that effect and any doubt is resolved in
favour of the assesse.

9. Explanatory statute - An explanatory statute is one which explains a law. Such a statute is
generally enacted with a view to supply an apparent omission or to clarify ambiguity (having
an obscure or double meaning) as to the meaning of an expression used in a previous statute.
An Act enacted for the express purpose of explaining or clearing up doubts as to the meaning
of a previous Act is an Act of explanation or an explanatory statute. For example: The Royal
Mines Act, 1688 in Britain was passed to encourage mining certain base metals while the Royal
Mines Act, 1963 was enacted for better explanation of the earlier Act. The latter is an example
of explanatory statute.

10. Amending statute - An amending statute is one which makes an addition to or operates
to change the original law so as to effect an improvement therein or to more effectively carry

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out the purposes for which the original law was passed. An amending statute cannot be called
a repealing statute. It is part of the law it amends. For example: Direct Taxes Amendment Act,
1974, Direct Tax Amendment Act, 1986, etc.

11. Repealing statute - A repealing statute is one which repeals an earlier statute. This
revocation or termination may be by express or explicit language of the statute or it may be
by necessary implication also. For example: The Hyderabad District Municipalities Act, 1956
was a repealing Act which repealed the Hyderabad Municipal and Town Committees Act,
[Link] Code of Criminal Procedure, 1973 (Act No. 2 of 1974) repealed and reenacted the
Code of Criminal Procedure, 1898.

12. Curative or validating statute - A curative or validating statute is one which is passed to
cure defects in prior law, or to validate legal proceedings, instruments or acts of public and
private administrative authorities which in the absence of such an Act would be void for want
of conformity with existing legal requirements, but which would have been valid if the statute
had so provided at the time of enacting. The purpose of a validating statute is to remove the
cases of ineffectiveness or invalidity of actions or proceedings which are validated by a
legislative measure. A validating legislation normally contains the expression
“notwithstanding any judgment, decree or order of any court.” The purpose of such an
expression is to validate some actions which would otherwise be unlawful or which may have
been declared invalid by a court. A natural consequence of the passing of a curative Act may
be the validation of such actions, which would otherwise be invalid, up to the extent of the
validation by the legislature. The result of the validation is that notifications or other steps
taken which may otherwise have been invalid become valid.

D. Classification with reference to the extent of application

1. Public statute - A public statute is one which relates to a matter of public policy. Such a
statute may be general, local or personal in nature.

2. Private statute - A private statute concerns with matters which are individual in nature or
is related to a body which has no public consequence.
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General Principles of Interpretation –

1. The Literal or Grammatical Interpretation:

It is the first rule of interpretation. According to this rule, the words used in this text are to be
given or interpreted in their natural or ordinary meaning. After the interpretation, if the
meaning is completely clear and unambiguous then the effect shall be given to a provision of
a statute regardless of what may be the consequences. The basic rule is that whatever the
intention legislature had while making any provision it has been expressed through words and
thus, are to be interpreted according to the rules of grammar.

It is the safest rule of interpretation of statutes because the intention of the legislature is
deduced from the words and the language used. According to this rule, the only duty of the
court is to give effect if the language of the statute is plain and has no business to look into the
consequences which might arise. The only obligation of the court is to expound the law as it is
and if any harsh consequences arise then the remedy for it shall be sought and looked out by
the legislature.

Case Law: Maqbool Hussain v/s State of Bombay

In this case, the appellant, a citizen of India after arriving at the airport did not declare that he
was carrying gold with him. During his search was carried on, gold was found in his possession
as it was against the notification of the government and was confiscated under section 167(8)
of Sea Customs Act.

Later on, he was also charged under section 8 of the Foreign Exchange Regulations Act, 1947.
The appellant challenged this trial to be violative under Article 20(2) of the Indian
Constitution. According to this article, no person shall be punished or prosecuted more than
once for the same offence. This is considered as double jeopardy.

It was held by the court that the Seas Act neither a court nor any judicial tribunal. Thus,
accordingly, he was not prosecuted earlier. Hence, his trial was held to be valid.

Case Law: State of Kerala v/s Mathai Verghese and others, 1987 AIR 33 SCR (1) 317

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In this case a person was caught along with the counterfeit currency “dollars” and he was
charged under section 120B, 498A, 498C and 420 read with section 511 and 34 of Indian Penal
Code for possessing counterfeit currency. The accused contended before the court that a
charge under section 498A and 498B of Indian Penal Code can only be levied in the case of
counterfeiting of Indian currency notes and not in the case of counterfeiting of foreign
currency notes. The court held that the word currency notes or bank note cannot be prefixed.
The person was held liable to be charge-sheeted.

2. Mischief Rule:

Mischief Rule was originated in Heydon’s case in 1584. It is the rule of purposive construction
because the purpose of this statute is most important while applying this rule. It is known as
Heydon’s rule because it was given by Lord Poke in Heydon’s case in 1584. It is called as
mischief rule because the focus is on curing the mischief. In the Heydon’s case, it was held that
there are four things which have to be followed for true and sure interpretation of all the
statutes in general, which are as follows-

a) What was the common law before the making of an Act.

b) What was the mischief for which the present statute was enacted.

c) What remedy did the Parliament sought or had resolved and appointed to cure the disease
of the commonwealth.

d) The true reason of the remedy.

The purpose of this rule is to suppress the mischief and advance the remedy.

Case Law: Smith v/s Huges, 1960 WLR 830

In this case around the 1960s, the prostitutes were soliciting in the streets of London and it
was creating a huge problem in London. This was causing a great problem in maintaining law
and order. To prevent this problem, Street Offences Act, 1959 was enacted. After the
enactment of this act, the prostitutes started soliciting from windows and balconies.

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Further, the prostitutes who were carrying on to solicit from the streets and balconies were
charged under section 1(1) of the said Act. But the prostitutes pleaded that they were not
solicited from the streets.

The court held that although they were not soliciting from the streets yet the mischief rule
must be applied to prevent the soliciting by prostitutes and shall look into this issue. Thus, by
applying this rule, the court held that the windows and balconies were taken to be an
extension of the word street and charge sheet was held to be correct.

Case Law: Pyare Lal v/s Ram Chandra

The accused in this case, was prosecuted for selling the sweeten supari which was sweetened
with the help of an artificial sweetener. He was prosecuted under the Food Adulteration Act.
It was contended by Pyare Lal that supari is not a food item. The court held that the dictionary
meaning is not always the correct meaning, thereby, the mischief rule must be applicable, and
the interpretation which advances the remedy shall be taken into consideration. Therefore,
the court held that the word ‘food’ is consumable by mouth and orally. Thus, his prosecution
was held to be valid.

3. The Golden Rule:

It is known as the golden rule because it solves all the problems of interpretation. The rule
says that to start with we shall go by the literal rule, however, if the interpretation given
through the literal rule leads to some or any kind of ambiguity, injustice, inconvenience,
hardship, inequity, then in all such events the literal meaning shall be discarded and
interpretation shall be done in such a manner that the purpose of the legislation is fulfilled.

This rule suggests that the consequences and effects of interpretation deserve a lot more
important because they are the clues of the true meaning of the words used by the legislature
and its intention. At times, while applying this rule, the interpretation done may entirely be
opposite of the literal rule, but it shall be justified because of the golden rule. The presumption
here is that the legislature does not intend certain objects. Thus, any such interpretation which
leads to unintended objects shall be rejected.
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Case law: Tirath Singh v/s Bachittar Singh, AIR 1955 SC 850

In this case, there was an issue with regard to issuing of the notice under section 99 of
Representation of People’s Act, 1951, with regard to corrupt practices involved in the election.

According to the rule, the notice shall be issued to all those persons who are a party to the
election petition and at the same time to those who are not a party to it. Tirath Singh contended
that no such notice was issued to him under the said provision. The notices were only issued
to those who were non-parties to the election petition. This was challenged to be invalid on
this particular ground.

The court held that what is contemplated is giving of the information and the information even
if it is given twice remains the same. The party to the petition is already having the notice
regarding the petition, therefore, section 99 shall be so interpreted by applying the golden rule
that notice is required against non-parties only.

Case Law: State of Punjab v/s Quiser Jehan Begum, AIR 1963 SC 1604

A period of limitation was prescribed for, under section 18 of land acquisition act, 1844, that
an appeal shall be filed for the announcement of the award within 6 months of the
announcement of the compensation. Award was passed in the name of Quiser Jehan. It was
intimated to her after the period of six months about this by her counsel. The appeal was filed
beyond the period of six months. The appeal was rejected by the lower courts.

It was held by the court that the period of six months shall be counted from the time when
Quiser Jehan had the knowledge because the interpretation was leading to absurdity. The
court by applying the golden rule allowed the appeal.

4. Harmonious Construction:

According to this rule of interpretation, when two or more provisions of the same statute are
repugnant to each other, then in such a situation the court, if possible, will try to construe the
provisions in such a manner as to give effect to both the provisions by maintaining harmony

18 | P u r v a T h a v i
between the two. The question that the two provisions of the same statute are overlapping or
mutually exclusive may be difficult to determine.

The legislature clarifies its intention through the words used in the provision of the statute.
So, here the basic principle of harmonious construction is that the legislature could not have
tried to contradict itself. In the cases of interpretation of the Constitution, the rule of
harmonious construction is applied many times.

It can be assumed that if the legislature has intended to give something by one, it would not
intend to take it away with the other hand as both the provisions have been framed by the
legislature and absorbed the equal force of law. One provision of the same act cannot make
the other provision useless. Thus, in no circumstances, the legislature can be expected to
contradict itself.

Case Law: M.S.M Sharma v/s Krishna Sinha, AIR 1959 SC 395.

Article 19(1) (a) of the Constitution provides for freedom of speech and expression. Article
194(3) provides to the Parliament for punishing for its contempt and it is known as the
Parliamentary Privilege. In this case, an editor of a newspaper published the word -for- word
record of the proceedings of the Parliament including those portions which were expunged
from the record. He was called for the breach of parliamentary privilege.

He contended that he had a fundamental right to speech and expression. It was held by the
court that article 19(1) (a) itself talks about reasonable freedom and therefore freedom of
speech and expression shall pertain only to those portions which have not been expunged on
the record but not beyond that.

5. Statue should be read as whole (construction ex visceribus actus)

The meaning of the maxim Ex Visceribus Actus is that every part of the statute must be
construed within the four corners of the Act. No provision should be interpreted in isolation.
The statute as a whole, the previous state of the law, other statutes in pari material (on same
subject matter), the general scope of the statute, and the mischief it is to remedy, is the basic

19 | P u r v a T h a v i
context of any statute. The elementary rule states that the intention of the Legislature must be
found by reading the statute as a whole. Every clause needs to be construed with reference to
the context and other clauses of the Act, to make a consistent enactment of the whole statute
or series of statutes relating to the subject-matter. It is the most natural and genuine
exposition of a statute.

The conclusion that the language is plain or ambiguous can only be truly arrived at by studying
the statute as a whole. How far and to what extent each component influences the meaning of
the other, would be different in each given case. Each word, must however, be allowed to play
its role, however significant or insignificant it may be. In achieving the legislative intent. Each
section must be construed as a whole, whether or not one of the parts is a saving clause or a
proviso. They may be interdependent, each portion throwing light, if need be on the rest.

Case Law: State of Maharashtra v/s Marwanjee (2002)

The SC held that the statute have to be considered in its entirety and picking up of one word
from one particular provision and thereby analyzing it in a manner contrary to the statement
of objects and reasons is neither permissible not warranted.

6. Construction 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 favour of constitutionality and prefers a construction

that embarks the statute within the competency of the legislature. But it is to be noted that
when the presumption of the 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.
20 | P u r v a T h a v i
Case Law: Avtar Singh v/s State of Punjab, (1965)

Section 39 of Electricity Act, 1910 provided that an accused found guilty under this section
must be punished under Section 379 of Indian Penal Code. Section 50 of this Act provided the
procedure. The appellant was convicted for theft of electricity under Section 99 and the
respondent proceeded against him under Section 379 of IPC. The appellant contended that he
could not be convicted under Section 39 as the procedure for conviction as required by Section
50 was not followed. The Respondent contended that punishment under Section 379 of IPC
has to be imposed in accordance with the provisions of Section 39. The Supreme Court,
applying this 7 principle, held that the offence is against the Electricity Act and not against IPC,
hence Section 50 must have been followed.

It may be noted that had the Supreme Court held otherwise, the consequence would have been
that the accused convicted under Section 39 of Electricity Act would have been punished
under Section 379 of IPC without following the procedure for conviction laid down in Section
50 of Electricity Act and in result, Section 50 would have become ineffective, inoperative and
futile.

7. Identical Expression to have same meaning:

A word which occurs more than once in the same Act should be given the same meaning
throughout the Act, unless the context shows that the legislature has used the word in a
different sense. This is made clear by the legislature inserting in the interpretation clause word
such as ‘unless the context otherwise requires’.

It is reasonable to assume that when the legislature has used a particular expression in a
statute many times, the expression must bear the same meaning everywhere. To call the same
thing by the same name is a very safe proposition. But the courts should be very careful while
applying this principle because the same expression expressed in a different context than the
earlier one may have been intended by the legislature to have a different meaning. To find out,
therefore, whether the same word should have the same meaning or not is a very difficult task
for the court. The courts while interpreting the same expression differently generally give the
21 | P u r v a T h a v i
reason that their context is different. Another reason for doing so may be that the word exists
in a consolidating statute where it has been derived from two distinct enactments.

Case Law: [Link] v/s Rajiv Gandhi University of Health Sciences

The Karnataka High Court held that it is settled law that in matters relating to educational
institutions if two interpretations are possible, the court would be reluctant to accept that
which would upset and reverse the decision of the educational authorities and would accept
the interpretation made by such institutions. Thus, when examination regulations for the
purpose of declaration of results were notified by the University and the candidates knew
about the procedure to be adopted by the University fully well, they cannot turn around to say
that the University regulations are contrary to regulations framed by the Medical Council of
India.

Case Law: Bhogilal v/s State of Bombay

A charge of criminal breach of trust was brought against the appellant, a cashier in a company.
After the happening was discovered certain officers of the company discussed certain matters
with the appellant in presence of solicitor of the company. During the trial, the solicitor, who
appeared as a witness, gave evidence about the happenings which took place in his presence
and wanted to give certain notes in evidence under Section 157 of the Evidence Act as a
previous statement of his. On the question whether such statement has been used many times
in different sections of the Act in its ordinary sense of something that is stated. It is a basic
principle of interpretation that the same expression must have the same meaning unless the
context demand otherwise. There is the nothing in the context so as to give a different meaning
to the word statement used in Section 157 of the Act. It is not necessary that there should be
an element of communication to some other person before that can be taken to be a statement.
So construed, therefore, the statement in the form of notes is admissible.

8. Construction Noscitur a Sociis:

Noscitur means to know and Sociis means association. Therefore Noscitur a Sociis means to
know from the association. This rule states that if under any law there are two or more specific
22 | P u r v a T h a v i
words and one of the specific word is ambiguous and makes the interpretation of law
redundant, then such ambiguous specific words shall lose their identity and shall derive their
meaning from the other words surrounding.

The applicability of this rule of interpretation arises when a word or phrase in question cannot
be interpreted in isolation and requires the words that surround it to also be understood in
order to better grasp the concept.

Case Law: Foster v/s Diphwys Casson ((1887) 18 QBD 428)

The case involved a statute which stated that explosives taken into a mine must be in a "case
or canister". Here the defendant used a cloth bag. The courts had to consider whether a cloth
bag was within the definition. Under noscitur a sociis, it was held that the bag could not have
been within the statutory definition, because parliament's intention in using ‘case or
container’ was referring to something of the same strength as a canister.

9. Construction ejusdem generis:

It is an ancient rule also called as Lord Tenterden’s Rule, dating back to [Link] is also known
with the name of Genus-species Rule of the language construction. Ejusdem Generis is a Latin
term which means of the same kind. When general words follow specific words that are
distinct in nature, the general words should also be given the specific meaning to it.

Example: If a law refers to automobiles, trucks, tractors, motorcycles and other motor-
powered vehicles, "vehicles" would not include airplanes, since the list was of land-based
transportation.

The rule requires that where specific words are all of one genus, meaning of the general words
shall be restricted to that genus only, unless there is something to show that a wider meaning
was intended.

For e.g. [Section 2(13)] of Companies Act, 2013 states definition of books of accounts “Books
of accounts, etc.” This word etc. shall be interpreted with the meaning of accounts and shall

23 | P u r v a T h a v i
include all registers pertaining to accounting transaction, i.e. Register of wages, Pretty cash
book but does not include Minutes Books, Proxies books,

Case Law: Uttar Pradesh State Electricity Board v/s Haishankar

a) The statue contains an enumeration of specific words.

b) The subjects of enumeration constitute a class or category.

c) The class or category should not be exhausted by the enumeration of specific words.

d) The general term should follow the specific term.

e) There is no indication of a different legislative intend.

Case Law: Evans v/s Cross

The words 'other devices' had to be interpreted in Section 48 (9) of the Road Traffic Act, 1930
which defined a 'traffic sign' to include 'all signals, warning sign posts, direction posts, signs,
or other devices'. Applying the rule of Ejusdem Generis the Court held that a painted white line
on a road could not be called a traffic sign because devices are things, which a painted line on
road is not.

10. Construction Expressio Unis Est Exclusio Alterius:

It is a Latin phrase that says 'Express Mention and Implied Exclusion' that means express
mention of one thing excludes all other things. Here it is considered that the items which are
not on the list are not covered by the statue. If one or more things of a particular class are
expressly mentioned in an enactment that means other things belonging to the same
particular class are excluded from the domain of the enactment.

11. Construction Contemporanea Expositio Est Optima Et Fortissima in Lege:

In legal context the maxim Contemporanea Expositio Est Optima Et Fortissima In Lege means
that the best way to construe a document is to read it as it would have read when made. The
doctrine of Contemporanea expositio is well known for interpreting a statute by reference to
the exposition it has received from contemporary authority however it should give way where

24 | P u r v a T h a v i
the language of the statute is plain and unambiguous. The words of a statute should be
construed in such a manner that it had been held by the person creating such statue in the true
sense. It is considered as if as they would have been as constructed as the day after the statute
was passed. The rule is that a statute must be considered in the light of all circumstances
existing at the time of its enactment. Therefore giving the meaning to the words that it had
when the statutes were constructed follows logically, and the courts have so held. The maxim
aims at expressing that the words of an Act will generally be understood in the sense which
they bore when it was passed.

Beneficial Construction:

Beneficent construction involves giving the widest meaning possible to the statutes. When
there are two or more possible ways of interpreting a section or a word, the meaning which
gives relief and protects the benefits which are purported to be given by the legislation should
be chosen. A beneficial statute has to be construed in its correct perspective so as to fructify
the legislative intent.

The general rule of the statute is that if a word used in the statute excludes certain cases in its
common meaning, it should not be forced unnecessarily to include those cases. An exception
to this rule is that when the main objective of the statute is not achieved by excluding those
cases then the word may be interpreted on the basis of the case requires.

This rule of interpretation will benefit individuals. Whenever there is an ambiguity or when it
would take the benefit away from the individual, so the meaning which prevails over the
benefit to the individuals should be adopted.

The courts should be generous towards the persons to whom benefits are conferred by the
statute. Here it involves the judges to give the widest meaning to the statute in order to protect
the interest of the parties, if you look into certain statutes the main purpose is to benefit and
protect the interest of the person, for example, Industrial Disputes Act, Consumer Protection
Act, Juvenile Justice Act and all labour-related laws. Provision is capable of giving two
meanings where one would preserve the benefit and another.
25 | P u r v a T h a v i
Beneficial construction does not permit the rising of any presumption that protection of
widest amplitude must be deemed to have been conferred on those for whose benefit the
legislation may have been enacted.

Case Law: Kanailal v/s Paramnidhi (AIR. 1957 S.C. 907)

Supreme Court decided that Calcutta Thika Tenant Act, 1949 is a Beneficial Construction,
hence it should be interpreted in such a way as would not harm the interests of Thika Tenants.

Case Law: State of Madhya Pradesh v/s Galla Tilhan Vyapari Sangh (A.I.R. 1977 S.C. 2208)

Supreme Court called the Madhya Pradesh Krishi -Upaj Mandi Adhiniyam, 1972 as a beneficial
construction and said that it-s object is to benefit the principle by limiting the profits of the
middle-man, hence it should be construed according to the object.

Strict Construction of Penal Statute

Penal statute is a statute that defines a criminal offense and prescribes its corresponding
penalty (fine, or imprisonment).

As a general rule, strict construction must be applied to criminal statutes. This means that a
criminal statute may not be enlarged by implication or intent beyond the fair meaning of the
language used or the meaning that is reasonably justified by its terms.

While construing a provision in a penal statute if there appears to be a reasonable doubt or

ambiguity, it shall be resolved in favour of the person who would be liable to the penalty. Penal
statutes provide penalties for disobedience of law making those who disobey liable to
imprisonment, fine forfeiture or any other penalty as may be prescribed. Penal statute do not
merely redress an individual who has suffered but they also enforce obedience to the
commands of law by punishing the long breakers.

A clear language is needed to create a crime, and a statute in enacting an offence imposing
penalty is strictly construed. (Sham Sunder v/s State of Haryana 1989)

26 | P u r v a T h a v i
A statue providing for penal prosecution has to be construed strictly. However this rule is not
of Universal application which must necessarily be observed in every case. (Chief Inspector of
mines v/s Karam Chand Thapar 1962).

Where an ambiguity exist and it has not been possible for the legislature to express itself
clearly, the court exhibit a preference for the liberty of the subject and resolves the doubt in
the favour of the subject. (State of West Bengal v/s Swapan Kumar Guha 1982).

Penal provision should be construed in a manner which will suppress the Mischief and
advance the object which the legislature had in view. (Latila Jahan v/s Bombay Gas Co. Ltd.
2003).

Where there are 2 possible the court will lean towards that construction which exempt 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 (Tolaram Relumal v/s State of Bombay 1954)

The effect of the rule of strict construction might almost be summed up in the remark that
where an equivocal word or an ambiguous sentence leaves a reasonable doubt of its meaning
which the canons of interpretation failed to solve, the benefit of the doubt should be given to
the subject and against the legislature which has failed to explain itself (Maxwell on
Interpretation of Statues).

Even though the settled rule that the penal statutes must be construed strictly, certain statute
must be understood in their plain language and with reference to their meaning in common
parlance. These are the provisions relating to human behaviour and, therefore, cannot be
given such a narrower meaning, which will defeat the very purpose of the provision of the act.
Of course, these are penal provisions and must receive strict construction. But even the rule
of strict construction requires that the provision have to be read in conjunction with other
relevant provision and scheme of the act. Further, the interpretation given should be one
which avoids absurd results on one hand and would further the object and cause of the law,
so enacted on the other. (Ashok Kumar v/s The State of Haryana 2010)

27 | P u r v a T h a v i
Strict Construction of Taxation Statue

[Link]
statutes/15660/#:~:text=The%20principle%20of%20strict%20construction%20applicable
%20to%20taxing%20statute%20does,penalty%20imposed%20is%20heavy%20or

Amending Statute

Any change of the scope or effect of an existing statute, whether by addition, omission, or
substitution of provisions, which does not wholly terminate its existence, whether by an Act
purporting to amend, repeal, revise, or supplements or by an Act independent and or original
in form, is treated as amendatory.

Whole enacting an amending law, that an existing provision shall be deleted and a new
provision substituted.

a. Clarification -

• When the legislature amends to clarify things it does not necessarily mean that the original
Act did not include and cover those things.

• Amendment offers a convenient method of curing a defect in an unconstitutional Act.

• Amendments are often made to clear up ambiguities and such amendments which are
intended to prevent misinterpretation do not in themselves alter the law in any way.

b. Settling conflict of decisions -

• To end as far as possible the conflict of old decisions.

c. Repealing obsolete enactment -

• To repeal enactments which have ceased to be in force or have become obsolete.

d. Effect of Amendment on Parent Statute -

• The amendment will be given a reasonable construction: a literal construction which would
lead to absurd consequences will be avoided.

28 | P u r v a T h a v i
• When the intention of the legislature is not clear from its language, the court will consider
surrounding circumstances such as title, legislative proceeding and report of the committee.

• Amendment not to incorporate something inconsistent with or repugnant to object of Act.

• A change in the law of procedure operates retrospectively and unlike the law relating to
vested right, is not only prospective.

• The promulgation of an amending Act cannot without any express term take away from a
party any right which might be vested in him under a prior Act.

Consolidating Statute

A consolidating statute is one which collects the statutory provisions relating to a particular
topic, and embodies them in a single Act of Parliament, making only minor amendments and
improvement.

The purpose consolidating statute is to present the whole body of statutory law on a subject
in complete form on particular branch of law. Ordinarily, no change of law is intended in a
consolidation Act.

For the object of the Act was merely to “reproduce the law as it stood before”. For ex: The long
title of the Code of Criminal Procedure, 1973 is “An Act to consolidate and amend the law
relating to Criminal Procedure”.

A consolidating statute is often not a mere compilation of earlier enactments. The very object
of consolidation is to collect the statutory law bearing upon a particular subject, and to bring
it down to date, in order that it may form a useful Code applicable to the circumstances.

Purely consolidated statute the presumption is that-

• Parliament does not intend to alter the existing law applies with particular force. For the
object of the Act was merely to ‘reproduce the law as it stood before.’

• Words used in the consolidating Act bear the same meaning as that which they had at the
time the enactments consolidated were passed.

29 | P u r v a T h a v i
Such a statute is not intended to alter the law. Hence, it is relevant to refer to the previous state
of the law or to judicial decisions interpreting the repealed Acts for purpose of construction of
corresponding provisions in the consolidating Act.

When the consolidation Act gives no guidance as to its proper interpretation only then it is
permissible to refer to the repealed enactments for guidance. But when the consolidation Act
is not ambiguous or obscure recourse to repealed enactment should not be done.

Prior statutes repealed, but reproduced in substance, are regarded as in pari materia, and
judicial decisions on the repealed statute are treated as applicable to substantially identical
provisions of the repealing Act’.

The primary rule of construction of a consolidation Act is to examine the language used in the
Act itself without any reference to the repealed statutes. It is only when the consolidation Act
gives no guidance as to its proper interpretation that it is permissible to have recourse to
repealed enactments.

Three types of Consolidation:

a. Pure consolidation i.e. re-enactment,

b. Consolidation with correction and minor improvements, and

c. Consolidation with Law Commission amendments.

Codifying Statute

A codifying statute is a statute which states exhaustively the whole of the law upon a particular
subject. The maker of law incorporates in the enactment both the pre-existing statutory
provisions and the common law relating to the subject.

The purpose of a codifying statute is to present uniform, orderly and authoritative rules on a
particular subject.

When once the law has been codified, it cannot be modified gradually from day to day, as the
changing circumstances of the community. Any modifications to it whether of a minor matter

30 | P u r v a T h a v i
or a major amendment must be made by the legislature (Bank of England v/s Vagliano
Brothers).

Lord Hershell interprets a codifying statute as follows: - “The object of a codifying Act is to end
the conflict of decisions. A codifying statute does not exclude reference to earlier case laws on
the subject for the purpose of true interpretation of the words. The reference of the previous
legislations is for the reason of removal of ambiguity. The aim of a codifying statute is to
declare the law on the subject so that the judge, by true interpretation of words decides the
meaning within the parameter of such law.

In Subba Rao v Commissioner of Income Tax , the Supreme Court held that the Income Tax Act,
1922 is a self-contained code exhaustive with the matters dealt with therein, and its provisions
show An intention to depart from common rule law “qui facet per alium facit per se”. The
preamble of the Act states it to be an act to consolidate and amend. Therefore the court should
try to find out the true scope of the code and matters dealt with exhaustively therein.

To conclude, the difference between a consolidating and codifying statutes are that the aim of
a consolidating statute is to enact a complete code on a particular subject by not only
compilation but also by addition but a codifying statute states exhaustively the whole of the
law upon a particular subject.

Presumptions Regarding Jurisdiction

1. Presumption against ouster of established jurisdiction, creation of new jurisdictions

and enlargement of existing jurisdictions of court

Presumption against the ouster of Jurisdiction

If a statute purports to exclude the ordinary jurisdiction of civil courts, it must do so either by
express terms or by the use of such terms as would necessarily lead to the inference of such
exclusion.

When the language is doubtful, the courts will lean against an ouster of the jurisdiction of the
ordinary courts, except in cases which are clearly and specifically indicated by the legislature.

31 | P u r v a T h a v i
It is an accepted principle of statutory interpretation that when a right of suit is taken away
and the remedy by way of application is substituted, the prohibition in regard to the filing of
the suit should be read as co-extensive with the remedy that is provided.

Presumption that the jurisdiction of the courts is neither enlarged nor decreased

There is a strong presumption that statute should not be construed so as to take away the
jurisdiction of superior courts, or so as to extend that jurisdiction by giving a right of appeal.

For example, there is a strong presumption that civil courts have jurisdiction to decide all
questions of civil nature. The exclusion of jurisdiction of civil courts is therefore not to be
readily inferred. There can be any such exclusion of jurisdiction only when the same is either
explicitly expressed or clearly implied.

The jurisdiction is bestowed in a court by a legislation, legislation alone can take away the
same. The parties to a dispute can neither create by mutual consent jurisdiction of court to try
their dispute nor can they take it away by mutual consent if in fact a court is vested with
jurisdiction in the matter. Mutual consent of the parties, can create an arbitrator and the
arbitrator may be a judge also.

The basis of such a principle is that the law presumes that a remedy in the ordinary civil courts
must always be available to a citizen unless a contrary intention unmistakably appears from
the terms of a statute.

According to such presumption of legislation a jurisdiction of a court can be enlarged only

where the legislator has expressly intended to do the same. The creating of new jurisdiction
or enlarging the existing ones cannot take place by means of any sort of implication but only
through express language of the legislator.

Legislation that gives jurisdiction to subordinate courts, tribunals and government agencies
must be strictly construed and the procedure prescribed by the legislation, if any should be
strictly adhered to in the judicial interpretation.

According to such presumption of legislation a jurisdiction of a court can be enlarged only

where the legislator has expressly intended to do the same.

32 | P u r v a T h a v i
The creating of new jurisdiction or enlarging the existing ones cannot take place by means of
any sort of implication but only through express language of the legislator.

In Coljax Laboratories Ltd (1) v. State of Goa, (1995) Goa LT 325.

It was held that the court will not favour an interpretation which has the effect of taking away
the jurisdiction of the competent authority, unless the same is expressly provided for in law.

Presumption against Violation of International Law

Every enactment is to be so interpreted as not to be inconsistent with the well-established

rules of international law, except when a contrary intention is expressed clearly.

Legislature is presumed not to enact anything contrary to international law or the common
law of the realm. Unless, therefore, the intention to do so is clearly expressed in the enactment,
the courts would be inclined to favour an interpretation which would bring the enactment into
consonance with those principles rather accept a grammatical interpretation.

It is only in cases of doubt or ambiguity that the courts would interpret a statute so as not to
make it inconsistent with the comity of nations or established rules of international law.

In Maxwell’s Interpretation of Statutes, it has been observed-

But if a statute is clearly inconsistent with international law or the comity of nations, it must
be so construed, whatever the effect of such a construction may be. There is, for instance, no
doubt that a right conferred on an individual by a treaty made with the crown may be taken
from him by the act of legislature.

ADM, Jabalpur v. Shivakant Shukla AIR 1976 SC Justice Khanna authoritatively laid down that:

Equally well established is the rule of construction that if there be a conflict between the
municipal law on one side and the international law or the provisions of any treaty obligations
on the other, the courts would give effect to municipal law. If, however, two constructions of
the municipal law are possible, the court should lean in favour of adopting such construction
as would make the provisions of the municipal law to be in harmony with the international
law or treaty obligation.
33 | P u r v a T h a v i
In Nilabati Behra v. State of Orissa AIR 1993 SC Art.9 (5) of the International Convention on
Civil and Political Rights was considered. Article 9(5) said that anyone who has been the victim
of unlawful arrest or detention shall have an enforceable right to compression. This article
was referred to in support of the view that damages could be allowed under art 32 and 226 of
the Constitution for violation of the Fundamental Right enshrined in Art.

Principle against Extra Territorial Operation of Statute

 The general principle of interpretation is that the legislature is dealing with subject matter
situated within its own territorial jurisdiction.

 A state has jurisdiction over subjects.

 Acts of the legislature of a country are intended to apply to matters within the territory of
that country. Also, the law made by such a legislature must bear a real territorial
connection with the subject matter with which it is dealing

 Article 245(2) of the Indian Constitution provides that no law made by Parliament shall be
deemed to be invalid on the ground that it has extra-territorial operation but under Article
245(1) a state legislature has no extra-territorial power and can legislate only for the
territory of the state.

 Section 4 of the Indian Penal Code, 1860 applies any offence committed by:

a. any citizen of India in any place without and beyond India;

b. Any person on any ship or aircraft registered in India wherever it may be.

 The power of a country allows it to legislate for its own subjects all over the world, and for
foreigners within its jurisdiction, but no further.

 Operation as to foreigners: Regard to principles of international law in that respect

 Presumption that a statute is not intended to apply to person outside the territories of the
state enacting it and presumption that the legislature intends to respect the rule of
International law.

34 | P u r v a T h a v i
Case Law: Hans Muller of Nuremberg v/s Superintendent, Presidency Jail, Calcutta

The SC held that to facilitate the expulsion of foreign national from India, he can be detained
in India.

Presumption whether Statute affect the State

 Rule of English law is that no statute binds the crown unless the crown is named therein
either expressly or by necessary implication because a statute is presumed to be enacted
for the subject and not for the King.

 Extension of the rule to all those officers of the state and their subordinates who perform
pursuant to statutory authority.

 Common law rule that the crown was not bound by a statute unless named expressly or by
necessary implication applied to India before the constitution came into force. (Bombay
Province v. Bombay Municipal Corporation AIR 1947 PC 34)

 State of W.B V. Corporation of Calcutta, AIR 1967 SC All general rules apply to citizens as
well as to state unless it express or by necessary implication exempts the state from its
operation.

 In view of Article 285 of the Constitution of the Union is exempt from taxation imposed by
a state law unless the Parliament provides otherwise.

 Article 289 which relates to exemption of property of a State from Union taxation have no
application to indirect taxes such as custom duty, central excise duty, sales tax etc. The
Union is therefore liable to sales tax under a State Act.

 The municipal corporation cannot evades the ban of Article 285 and tax union property by
levying service charges for water, electricity supplied and drainage and roads provided to
posts and telegraph buildings.

 LDA V.M.K Gupta, AIR 1994 SC

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 Consumer Protection Act, 1986 applies to a statutory authority and a Government or semi-
Government body or a local authority in the same way as it applied to private bodies for
the act does not expressly or impliedly indicate that these bodies are excluded from the
purview of the Act. Article 285 of the Constitution provides that property of the Union is
exempt from taxation imposed by a state law unless the Parliament provides otherwise.

Commencement, Repeal and Revival of Legislation

Principles of Constitutional Interpretation

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 favour 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.

General rules of interpretation of the Constitution

a) If the words are clear and unambiguous, they must be given the full effect.

b) The constitution must be read as a whole.

c) Principles of harmonious construction must be applied.

d) The Constitution must be interpreted in a broad and literal sense.

e) The court has to infer the spirit of the Constitution from the language.

f) Internal and External aids may be used while interpreting.

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g) The Constitution prevails over other statutes.

Principles of Constitutional Interpretation

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 bonafide or malafide. A legislative transgression may be
patent, manifest or direct or maybe disguised, covert or indirect. It is also applied to the fraud
of the Constitution.

In India ‘the doctrine of colourable legislation’ signifies only a limitation of the law-making
power of the legislature. It comes into the 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.

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 both as
mentioned in the seventh schedule.

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

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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—
through 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

Bombay Prohibition Act, 1949 which prohibited the 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

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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.

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 the Constitution
becomes inoperative on commencement of the 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. 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

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)[8] 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.

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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 the 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.

Case: AK Gopalan v. State of Madras

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 legislation cannot be questioned on the ground that it has an extra-territorial
operation. It is well-established that the Courts of our country must enforce the law with the

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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.

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

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 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

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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.

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