JAMIA MILLIA ISLAMIA UNIVERSITY, NEW

DELHI

(FACULTY OF LAW)

6TH SEMESTER EXAMINATION OF

INTERPRETATION OF STATUTES

SUBMITTED BY: - ANAS KHAN

EXAM. ROLL. NO. 17BLW012

CLASS S. NO. 14
B.A.LL.B. (REGULAR ) 6th Semester

BATCH 2020- 2021

 UNIT – I
Q.1. “The rules of interpretation are like the tools of carpenter and
sculptor”. Explain the above mentioned statement while discussing the
meaning and purposes of interpretation the statute.
ANSWER;-
The term interpretation means “To give meaning to”. Governmental power has been
divided into three wings namely the legislature, the executive and the judiciary.
Interpretation of statues to render justice is the primary function of the judiciary. It is the
duty of the Court to interpret the Act and give meaning to each word of the Statute. The
most common rule of interpretation is that every part of the statute must be understood in
a harmonious manner by reading and construing every part of it together. The maxim “A
Verbis legis non est recedendum” means that you must not vary the words of the statute
while interpreting it The object of interpretation of statutes is to determine the intention
of the legislature conveyed expressly or impliedly in the language used.

In Santi swarup Sarkar v pradeep kumar sarkar, the Supreme Court held that if two
interpretations are possible of the same statute, the one which validates the statute must
be preferred.

Statute generally means the law or the Act of the legislature authority. The general rule of
the interpretation is that statutes must prima facie be given this ordinary meaning. If the
words are clear, free from ambiguity there is no need to refer to other means of
interpretation. But if the words are vague and ambiguous then internal aid may be sought
for interpretation.

INTERNAL AIDS

1. Context
If the words of a statute are ambiguous then the context must be taken into consideration.
The context includes other provisions of the statute, its preamble, the existing state of law
and other legal provisions. The intention behind the meaning of the words and the
circumstances under which they are framed must be considered.

2. Title

Title is not part of enactment. So it cannot be legally used to restrict the plain meaning of
the words in an enactment. Long title The heading of the statute is the long title and the
general purpose is described in it. E.g. Prevention of Food Adulteration Act, 1954, the
long title reads as follows “An Act to make provisions for the prevention of adulteration
of food”.

In Re Kerala Education bill, the Supreme Court held that the policy and purpose may
be deduced from the long title and the preamble.

In Manohar Lal v State of Punjab, Long title of the Act is relied as a guide to decide
the scope of the Act.

Short Title

The short title of the Act is purely for reference only. The short title is merely for
convenience. E.g. The Indian Penal Code, 1860.

3.Preamble

The Act Starts with a preamble and is generally small. The main objective and purpose of
the Act are found in the Preamble of them Statute. “Preamble is the Act in a nutshell. It is
a preparatory statement. It contains the recitals showing the reason for enactment of the
Act. If the language of the Act is clear the preamble must be ignored. The preamble is an
intrinsic aid in the interpretation of an ambiguous act.
In Kashi Prasad v State, the court held that even though the preamble cannot be used to
defeat the enacting clauses of a statute, it can be treated as a key for the interpretation of
the statute.

4.Headings

A group of Sections are given under a heading which act as their preamble. Sometimes a
single section might have a preamble. S.378- 441 of IPC is “Offences against property”.
Headings are prefixed to sections. They are treated as preambles. If there is ambiguity in
the words of a statute, headings can be referred.

In Durga Thathera v Narain Thathera, the court held that the headings are like a
preamble which helps as a key to the mind of the legislature but do not control the
substantive section of the enactment.

5. Marginal notes

Marginal notes are the notes that are printed at the side of the section in an Act and it
summarizes the effect of the section. They are not part of the statute. So they must not be
considered. But if there is any ambiguity they may be referred only as an internal aid to
the construction.

In Wilkes v Goodwin, the Court held that the side notes are not part of the Act and hence
marginal notes cannot be referred.

6. Proviso

A proviso merely carves out something from the section itself. A proviso is a subsidiary
to the main section and has to be construed in the light of the section itself. Ordinarily, a
proviso is intended to be part of the section and not an addendum to the main provisions.
A proviso should receive strict construction. The court is not entitled to add words to a
proviso with a view to enlarge the scope.
7. Definition/ Interpretation clause

The legislature can lay down legal definitions of its own language, if such definitions are
embodied in the statute itself, it becomes binding on the courts. When the act itself
provides a dictionary for the words used, the court must first look into that dictionary for
interpretation.

In Mayor of Portsmouth v Smith, the court observed “The introduction of

interpretation clause is a novelty.”

8. Conjunctive and Disjunctive words

The word “and” is conjunctive and the word “or” is disjunctive. These words are often
interchangeable. The word ‘and’ can be read as ‘or’ and ‘or’ can be read as ‘and’.

9. Gender

Words’ using the masculine gender is deemed to include females too.

10. Punctuation

Punctuation is disregarded in the construction of a statute. Generally there was no

punctuation in the statutes framed in England before 1849. Punctuation cannot control,
vary or modify the plain and simple meaning of the language of the statute.

11. Explanations

IN certain provisions of an Act explanations may be needed when doubts arise as to the
meaning of the particular section. Explanations are given at the end of each section and it
is part and parcel of the enactment.

12. Exceptions and savings clause

To exempt certain clauses from the preview of the main provisions, and exception clause
is provided. The things which are not exempted fall within the purview of the main

enactment. The saving clause is also added in cases of repeal and re-enactment of a
statute.

13. Schedules

Schedules form part of a statute. They are at the end and contain minute details for
working out the provisions of the express enactment. The expression in the schedule
cannot override the provisions of the express enactment. Inconsistency between schedule
and the Act, the Act prevails. ( Ramchand textiles v sales tax officer)

14. Illustrations

Illustrations in enactment provided by the legislature are valuable aids in the

understanding the real scope.

15. Meaning of the words

The definition of the words given must be construed in the popular sense. Internal aid to
construction is important for interpretation.

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 or a major amendment must be made by the legislature (bank of
England v 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.

INTERPRETATION OF THE CONSTITUTION

The constitution is an organic instrument. It is the fundamental law. The general rule

adopted for construing a written constitution is the same as for construing any other

statute. The constitution should be interpreted so as to give effect to all its parts. There
are basically three types of interpretation of the constitution.

Historical interpretation

Ambiguities and uncertainties while interpreting the constitutional provisions can be

clarified by referring to earlier interpretative decisions.

Contemporary interpretation.

The constitution must be interpreted in the light of the present scenario. The situation and
circumstances prevalent today must be considered.

Harmonious Construction.
The Supreme Court held in Re Kerala Education Bill that in deciding the fundamental
rights, the court must consider the directive principles and adopt the principle of
harmonious construction so two possibilities are given effect as much as possible by
striking a balance.

In Qureshi v State of Bihar, The Supreme Court held that while the state should
implement the directive principles, it should be done in such a way so as not to violate the
fundamental rights.

In Shajahan v Mrs. Kamala Narayana, the Supreme Court held that harmonious
interpretation of the legislation is justified if it makes effective use of any other provision
in the same or another enactment.

In Bhatia International v Bulk Trading SA, it was held that if more than one
interpretation is possible for a statute, then the court has to choose the interpretation
which depicts the intention of the legislature.

Interpretation of the preamble of the constitution.

The preamble cannot override the provisions of the constitution.

In Re Berubari, the Supreme Court held that the Preamble was not a part of the
constitution and therefore it could not be regarded as a source of any substantive power.

In Keshavananda Bharathi’s case, the Supreme Court rejected the above view and held
the preamble to be a part of the constitution. The constitution must be read in the light of
the preamble. The preamble mcould be used for the amendment power of the parliament
under Art. 368 but basic elements cannot be amended. The 42nd Amendment has inserted
the words “Secularism, Socialism and Integrity” in the preamble.

General rules of interpretation of the constitution

1. If the words are clear and unambiguous, they must be given full effect.
2. The constitution must be read as a whole.

3. Principles of Harmonious construction must be applied.

4. The constitution must be interpreted in a broad and liberal sense. The court has to infer
the spirit of the constitution from the language.

6. Internal and External aids may be used while interpreting.

7. The Constitution prevails over other statutes.

UNIT- II
Q.2. “The words of the statute have to be given grammatical and
ordinary meaning irrespective of possible consequences resulting from
it”. Discuss it while bringing out the differences between Literal and
Golden rules of interpretation.
ANSWER:-
The basic principles of statutory interpretation are not found in any sandhas beedeveloped
from the decision of courts. In India, after independence the Supreme Court (SC) has
approved all of these rules as proper rules for interpretation for various acts of central and
state act.

1 The important purpose of all of these rules is to interpret the meaning of the statute, so
in order to avoid the court to add or omit any word in the statute. This words in the statute
can be interpreted by looking the intention of legislature and every words in statute will
be interpreted by these two way, one what exactly the word mean i.e. the regular
grammatical meaning and purpose, other way is the object of the statute (means the
purpose and object for enacting the statute) i.e. intention of legislature, when the judges
feel the word in a statute is unclear and ambiguous.
2 In order to adopt Literal Rule or golden rule it is solely based on the discretion of
judges.

Overview of Literal Rule –Primary Rule:

The first and most elementary rule of interpretation is the literal rule .According to this
Rule, the words of the statute must be given their ordinary or grammatical meaning and if
the words are clear and unambiguous, then the court

must follow literal rule and there is no necessary for the court to follow any other rule.
R.S. Nayak v A.R. Antulay, AIR 1984 SC 684 On the other hand, when the words in a
statute are unclear, then the literal rule is not applicable, then it will lead to other rules.

But, Lord Evershed, M.R., “has undoubtedly reinforced the claim of Bombay, where the
words are clear then there is need to look the intention of legislature. Literal construction
as the only safe rule”. This rule is a very safest rule, because if we depart from this rule,
then judges will be free to append his/her own interpretation whatever he/she believe. If
the judges have given this privilege, then it will lead to judicial activism and it will also
destroy the spirit of separation of power.

Overview of Golden Rule:

The golden rule can be said as greater alternative to Literal Rule Golden Rule, says if
anything absurd then it is necessary to modify the language by looking the intention of
legislature. If the intention of legislature is same as the ordinary meaning of the statute
then, it is not necessary for the court to modify the language ,but if any inconsistent arises
then the court has right to modify this words in the statute by this rule. 6 Therefore, the
grammatical sense of law used by the legislature may require some modification when it
contrary to the object of the statute. So, under this rule, the court takes the common
meaning and if any absurdity observed, i.e. inconvenience, inconsistency in that meaning
then the court will modify the language, but the court does not have any right to omit
words. 7
Over view of Subsidiary Rule

Subsidiary Rule is an aid to interpretation, it is not considered by the court as primary

Rule. This Rule only come to rescue, when Literal Rule or any other Rules leads to
ambiguity then the Rule will be used by the court to come to conclusion and adopt clear
meaning of the word. This Rule also prevents the judges to interpret on their own beliefs.
There are various subsidiary Rules

Application of Literal and Golden Rule with Subsidiary Rules

In the case of applying Literal Rule that operates restrictively, first it will be taken in an
ordinarymeaning and if the judges sense hard to interpret these words, Corporation of
City of Nagpur v. Employees, AIR 1960 SC 675. then there will be a need for
Subsidiary rules (act as an aid to interpretation of Literal Rule) in applying Literal
Rule ,so to reach a clear interpretation of the words. Subsidiary Rules are
Ejusdem Generis,Casus Omissus and Expressio Unius est exclusio alterius .Even after
applying this subsidiary Rule, to  reach Literal meaning, if the meaning is still unclear
and ambiguous then the judges have different Rules of interpretation and one of these
Rules are Golden Rule. Shah v. Barnet London Borough Council, (1983) 1 ALL ER
226, pp.235, 238 (HL).

Golden Rule means the judges have the discretion to modify the word but they can't
add or omit any word in the statute. 10 This will be done by the judges by looking the
intention of the legislature or by looking the popular meaning used by public i.e.
technical meaning or by looking legal sense derived from the word and so on. But, this
Rule will not go beyond the Statute to derive clear and unambiguous meaning.

Literal Rule-Subsidiary Rule to be followed

So, it is clear that for applying Literal Rule in the statute there is a need for Subsidiary
Rule to reach a meaning which is clear and unambiguous i.e. if there is confusion in
ordinary meaning. The subsidiary Rules used are mentioned below.
Ejusdem Generis (of the same genus or class) : Ejusdem Generis means, when a two
or more particular words are followed by the one or more general words, then the general
word will be interpreted according to the text of specific words. A.N Saha, Mitras Legal
and Commercial Dictionary, 257 (5th ed. 1994). In the case of Powell v. Kempton Park

Analysis of Literal Rule and Golden Rule

The meaning of Ejusdem Generis was interpreted, stating that when specific words are
followed by general words, the general word will be limited to the things of the same
kind of specific words. This Ejusdem Generis can be easily understood by an example,
for Example, if a wife tells his husband to go to the market to buy the carrot, cauliflower,
mushroom and anything else that he needs, “anything else” will be interpreted by the
specific words given. The specific words given here is carrot, cauliflower and mushroom.
So the general word will be construed in the context of a specific word. So, here
“anything else” will be interpreted as vegetables not fruits.

Casus Omissus

The Casus Omissus means, omission in the word of the statute, and then it cannot be
supplemented by judicial construction, even though it is founded by the judges that the
legislature intended, but omitted the word in the statute. 14 This can be done only by the
legislature, not by Judiciary. The Judiciary have only rights only to cure logical defects of
words and phrases. The court prefers a literal interpretation without adding something.

Expressio unius est excusio alterius (Expressed inclusion of one is

Expressed exclusion of other)

Expressio unius est excusio alterius, means that if there is any expressed mention of one
thing, then it implies the exclusion of all others. 17 For example if a statute refers to
elephant and buffalo then it will not include another animal like leopard, it will be
included only if it is expressly given in the statute.
In Shree Durga Distributors v. State of Karnataka, In this case, the SC depended on
the punctuation mark for deciding the entry in the VAT Act, 2003, which exempted
namely “animal feed and feed supplements, namely processed commodity sold as poultry
feed, cattle feed, pig feed, fish feed, prawn feed, shrimp feed. The question rose whether
dog feed and cat feed is exempted. But the court held that it is expressly specified that
these are the animals exempted from the Act .So cat and dog feed is not included, it is not
exempted from this Act by following this Subsidiary Rule “Expressio unius est excusio
alterius” i.e. Expressed inclusion of one is an exclusion of other.

Golden Rule – Rules to be followed

For applying Golden Rule i.e. to modify or alter the word in the statute, then the judges
will look the Intention of the legislature (tool to look the intention of legislature) by
reading statute as whole , technical meaning, Legal sense and so on. If the legislature
intended is found different to word of statute, then the judges will modify and alter the
word. But, if the legislature intended is same as the word then the judges has to follow
the literal meaning and it is duty of legislature to amend it. Golden Rule is impermissible,
if the judges add or omit the word from the statute, by saying that the intention of
legislature is different from the word given in the statute.

Intention of the legislature

A statute is a canon of the legislature and the correct way to construe the statute is
looking the intention of the legislature. It is the duty of the judiciary to act on the basis of
intention of the legislature (mens or sententia legis). If the words in the statute raised two
interpretations then it is apt for the judges to look the intention of the legislature. The
intention of legislature implies that purpose and object of the Act will be seen. Shree
Gajanana Motor Transport Company Ltd v. The Karnataka State Transport
Appellate Tribunal. The issue raised in the case was whether the appellant who not
directly involved in the proceeding has right to file revision under Sec 90 of the Motor
Vehicles Act, 1988 or has only right to file an appeal under Sec 89 of Act. The appellant
filed a revision under Sec 90 of the Act against the Second Respondent. But the court felt
the ambiguity in the word, so the Judges depended on Golden Rule where they looked the
purpose and object of Act and said that the word “any person” will not include every
person but the intention of the legislature was to include an aggrieved party. Here, the
appellant is not directly involved in the proceeding, he is aggrieved party. So the court
held that the appellant has right to file under Sec 90 of Motor Vehicle Act, 1988.

Special meaning relating to trade or business

According to this principle, if the legislature intended to have special meaning to the
statute, then the word of the statute will be understood in a special meaning i.e. trade,
business, and profession and so on. There are certain limitations, in order to apply the
Rule i.e. the special meaning given to word of the statute, must be understood by all the
person who involved under trade, business,

profession and so on, it must be used by all person and the special meaning must be
popular to them i.e. it must be popularly used in production of the product and
manufacture. This will be done especially in taxing statutes.

In Union of India v. Ahmedabad Electricity Co. Ltd., In this case, the issue raised was
whether ash used in thermal power station produced by burning coal was taxable under
Central Excise Tariff Act, 1986. Here, cinder produced from burning coal used as fuel
and there is no manufacturing process in producing cinder, coal is not subjected to any
manufacturing process i.e. tampered or manipulated to reach an end product. The raw
material used in the manufacturing process must get new identity after this process but
coal has not got any new identity. The SC held cinder will not be taxable because it is not
used in both manufacturing process and production and it is not used popularly by people
in manufacturing and production process.

Legal Meaning v. Literal Meaning

According to this principle, when the words acquires a technical meaning constantly used
by the legislature in a particular sense or used by the courts, they are understood in the
similar context used by legislature and courts. This will help the judges to interpret the
word. Legal meaning is different from Literal Meaning and if the words in the statute is
unclear and ambiguous because of grammatical meaning, Then court adopts Golden
Rule, find the legal meaning and interpret it.. The judge must also look the legal meaning
to promote justice .For example take the word “beyond the seas” must taken in legal
meaning that means out of territory (if the offence is created out of territories then what
jurisdiction will apply). If you take the word judgement and decree in an ordinary
meaning means final order but, if you take in a legal, Judgement means concluding part
of the statute and decree is the operating part of statute.

Dr. Subramanian Swamy And Ors vs. Raju Thr. Member Juvenile Justice. SC 2012

Facts: On 16 Dec 2012, a young lady with his friend boarded private bus after watching
a movie. In the bus she was brutally gang raped by five persons and his friend was beaten
hardly resulting the death of the girl. The five persons were apprehended in connection
with the alleged crime, from the five persons, one was below 18 years during the
commission of offence. So he was directed to juvenile court according to Juvenile Justice
Act, 2000.

Judgement: But the court dismissed, saying that, Juvenile Justice Act is very clear, child
below 18 years is a juvenile and he will be punished according to Juvenile Act. The SC
also pointed out that sec 2(k) of Juvenile Act, 2000 is very clear and unambiguous, so
there is no need of further interpretation. It also said that even the Sec 2(k) proves
injustice, the judges don’t have any power to add, and it is duty of legislature to amend it.

Animal Welfare Board of India vs.  A. Nagaraja & Ors,

I) Facts: This case is about exempting Bull from Sec 22 as “performing animal” before
SC and it was about Tamil Culture v. Animal Rights. The Central Government by
Notification 2011 included bull as performing animal, because it violated Sec 3, Sec
11(a) & (m) and Sec 22 of PCA Act saying that Bull is mentally tortured. The
Notification clearly said, Bull as a performing animal, so the petitioner seek to take away
the ban on Bull fight contending that it affect the emotion of the Tamil Nadu people’s
culture and it also affect livelihood of Alanganallur people who is solely depend on the
Bull fight.

II) Judgement:

The SC upholds the Bombay’s judgement and also held the Government Notification as
valid. The SC adopted Literal Rule and pointed out that Sec 22 of the PCA Act is very
clear, places restriction on exhibition and training of performing animals, where it clearly
says that if the central government by his notification in official gazette specify an animal
as a performing animal, then that animal cannot be exhibited or trained as performing
animal. So SC by strictly interpreting this statute banned Bull Fight on the basis of
Central Government Notifications 2011. This Sec 22 is very clear and unambiguous and
there is no need of further interpretation.

Balram Kumavat v. UOI,

I) Facts: The appellant Balram Kumavat, is a carver by his profession who imported tusk
of mammoth which was considered as an extinct species and he was penalized under
Wildlife Protection Act, 1972, it imposed ban on trading of ivory. The issue raised was
whether tusk of mammoth come under the scope of “ivory”.

II) Judgement: First the court interpreted in dictionary meaning because the statute does
not have any definition. But later the appellant argued that it is violation of Article 19 of
the Constitution as the ban was against the appellant business. Even after deviating from
the literal meaning the court upheld the liability and validity of the Act.

Literal Rule, is reading the statute plainly and it doesn’t allow the judges to interpret
on their own beliefs .This Rule doesn’t allow the judges to add or omit any word in the
statute by limiting the power of judiciary to not go beyond their power. But disadvantage
to this Rule is the same limitation power of judiciary as they are not allowed to interpret,
even the word in statute is creating unjust, and ambiguous, the judges don’t have any
right to modify it, by this Rules. The case which was analysed by the Researcher
(Nirbhaya case) is a good example to prove the failure of this Rule, even the judge knows
it injustice, but they are forced to abide by legislature i.e. where even after committing
grievous offence he was only punished to 3 years and this Limitation shows that higher
power is conferred to legislature and whatever fault committed by legislature in making
laws the judiciary must not see the fault but read as it is given by legislature. Every
situation cannot be covered by Legislature, duty must be given to judges to read and if
the judge sense any fault in it then the judges must be given discretion to modify the
words by looking the intention of legislature

Golden Rule

It can be said the Golden Rule act as a better modification to Literal Rule because in this
Rule also the judges can modify by looking the intention of legislature but don’t have any
discretion to omit the words. Disadvantage to this Rule is that how can we determine
intention of legislature in various cases now they read the statute plainly and sense that
words are unclear, there is a need to look the intention of legislature .But most of these
cases, even after looking the intention of legislature the courts adopt Literal Rule
contending that the intention of Legislature is same as the words given in the statute. The
reason behind these judgements is the judge doesn’t want to go beyond the power
conferred to them. Application of Literal and Golden Rule is solely depend on the
discretion of judges; case study given by researcher proves that each judge has different
interpretation to same fact and principle. Both of these Rules are adopted so that the
judiciary not go beyond the power conferred for judiciary.

certain suggestion for Literal Rule and Golden Rule

1. It is not necessary that the judges must always interpret the words in statute as given
by Legislature.

2. Even the words of the statute are clear the judiciary must use both Literal Rule and
Golden Rule to achieve justice.
 UNIT –III
Q.3. Examine the role played by parliamentary history and dictionaries
in the interpretation of statutes.
ANSWER:-

While interpreting a statute true intent of the legislature shall have to be gathered and
deciphered in its proper spirit having due regard to the language used therein. Where
language is clear, external aid for construction is not required. External aids are relevant
only when the language is not clear and two meanings are possible. Factual events
contemporaneous to the time of interpretation cannot be taken into consideration for
interpretation of a statute.

The Supreme Court held in a case that the approach of High Court in interpreting the
Development Control Regulations having regard to certain other factors, namely, the
deluge in Bombay in 2005 as also the requirements of the entire population of Bombay
from environmental aspect was erroneous. It was held that such factors cannot be taken
into consideration for interpretation of a statute.

EXTERNAL AIDS TO CONSTRUCTION

1. Dictionaries

2. Foreign decisions

3. Parliamentary history

4. Historical facts and surrounding circumstances

5. Subsequent social, political and economic developments and scientific inventions

6. Text books

7. Reference to other statutes

8.  Contemporanea exposito est fortissimo in lege

9. Websites

PARLIAMENTARY HISTORY
The leading authorities do not provide a precise meaning of the term “legislative history.”
Generally, the term is used to denote documents relating to events that occurred during
the conception, preparation, and passage of the enactment.

Peter Hogg considers legislative history to include the following materials:

1. The report of a royal commission or law reform commission or parliamentary

committee recommending that a statute be enacted;

2. A government policy paper (whether called a white paper, green paper, budget paper
or whatever) recommending that a statute be enacted;

3. A report or study produced outside government which existed at the time of the
enactment of the statute and was relied upon by the government that introduced the
legislation;

4. Earlier versions of the statute, either before or after its introduction into Parliament or
the Legislature;

5. Statements by ministers or members of Parliament and testimony of expert witnesses

before a parliamentary committee charged with studying the bill; and

6. Speeches in the Parliament or Legislature when the bill is being debated.

Absent from the foregoing list are explanatory memoranda which are documents
explaining the contents and objects of the bill to members of the house- frequently used
in some common law jurisdictions, such as Australia. These materials are also considered
to be part of legislative history.

The parliamentary procedure is similar across most common law jurisdictions, except for
the United States. After the draft legislation has been accepted by the government, it is
introduced in the Parliament. It then proceeds through the normal stages of first and
second readings, a reference to committee, report stage, and final reading of the bill.

House members’ commentary on the bill during the three readings is recorded in
Hansard, the official reporter of parliamentary debates. The vast majority of drafts are
public bills introduced by the government; there are also private bills and private
members’ bills.

It is noteworthy that speeches in Parliament on a statute made subsequent to its enactment

— such as parliamentary statements during the debate on an unsuccessful amendment to
the statute — cannot be considered part of its legislative history. Such speeches did not
occur during the enactment and are not antecedent to the crystallization of the words in
the statute. Therefore, although they are recorded in Hansard, they cannot be regarded as
parliamentary debates on that particular legislation.

Legislative history — must be distinguished from the so-called social-science data and
other factual materials that have played no role in the legislative process. Social science
data can be introduced as evidence in certain courts, particularly in the United States, in
the form of a “Brandeis brief.”

They are, however, distinct from (and cannot be considered part of) the legislative history
of a statute. Although they can have bearing on the construction of a statute, social-
science data are, in effect, facts submitted to the general rules of evidence. In contrast,
legislative history materials are not facts — neither adjudicative nor legislative — but
rather interpretive aids.

INDIAN PRACTICE
The Supreme Court has used the aid of Parliamentary history in resolving questions of
construction but it can be said that the Supreme Court generally has enunciated the said
rule of exclusion of Parliamentary history in the way it was traditionally enunciated by
English Courts.

But in a few cases, it has been held that the legislative history within circumspect limits
may not be consulted by the Courts in resolving ambiguities. Legislative history and
precedent English statutes may be taken into consideration in giving a beneficent
interpretation to a provision in an act. In determining legislative intent, even a minister’s
budget speech was taken into consideration.

(i) BILL

As the speeches made by the members of the Constitution Assembly in the course of
debates on the draft Constitution cannot be admitted as an external aid to the
Constitution, in the same way, the debates on a Bill in Parliament are not admissible for
construction of the Act which is ultimately enacted.

In State of Travancore v Bombay Co Ltd, it was held that a speech made in the course of
the debate on a bill could at best be indicative of the subjective intent of the speaker, but
it could not reflect the inarticulate mental process lying behind the majority vote which
carried the bill. Nor is it reasonable to assume that the minds of all those legislators were
in accord.

In Chiranjit Lal Chowdhary v Union of India, Fazal Ali, J, admitted Parliamentary

history including the speech of the Minister introducing the Bill as evidence of the
circumstances which necessitated the passing of the Act, a course apparently approved in
later decisions.

In Union of India v Harbhajan Singh, extensive references were made to speeches in

the Constituent Assembly to support the construction that wealth-tax on net-wealth
including the capital value of agricultural lands fell within the residuary power of the
Parliament.
In  Indira Sawhney v Union of India, the Supreme Court referred to Dr. Ambedkar’s
speech in the Constituent Assembly and observed interpreting Article 16 (4), ‘that the
debates in the Constituent Assembly could be relied upon as an aid to interpretation of a
constitutional provision is borne out by a series of decisions of the Court.’

Since the expression backward classes of citizens are not defined in the Constitution, the
reference to such debates is permissible to ascertain at any rate the context, background,
and objective behind them. Particularly where the courts want to ascertain the ‘original
intent’ such reference may be unavoidable.

The amendments considered during the progress of a bill were ruled out as inadmissible
for purposes of construction of the Act. This principle was modified by the Supreme
Court in the case of Express Newspapers (Pvt) Ltd v Union of India.

The Court observed that there is a consensus of opinion that the circumstances under
which a particular word came to be deleted from the original Bill as introduced in the
Parliament and the fact of such deletion when the act to be passed in the final shape are
not aids to the construction of terms of a statute. It is applicable only when the terms of a
statute are vague or ambiguous.

In K.S.Paripoornan v State of Kerala, it was held that speeches of members of

Parliament are not admissible as extrinsic aids, although the speech of the mover of the
bill can be referred to find out the object intended to be achieved by the Bill. Similarly, it
was held that statements made by a Minister in the house who had moved the Bill in
Parliament could be referred to ascertain the mischief sought to be remedied by
legislation but it could not be relied on for interpreting provisions of the enactment.

(ii) STATEMENT OF OBJECTS AND REASONS

The statement of objects and reasons accompanying a legislative bill cannot be used to
ascertain the true meaning and effects of the substantive provisions of the legislation, but
it can certainly be pressed into service for the limited purpose of understanding the
background, the antecedent state of affairs and the object that the legislation seeks to
achieve. If the meaning of the provision of a statute is clear and explicit, it is not
necessary to advert to the objects and reasons thereof.

The Statement of Objects and Reasons is undoubtedly an aid to construction but that by
itself cannot be termed to be and by itself as an aid to the construction of a statute. It is a
useful guide but the interpretations and the intent shall have to be gathered from the
entirety of the statute. In Ashwini Kumar’s case, the statement of Objects and Reasons
was ruled out as an aid to the construction of a statute.

When the validity of a particular statute is brought into question, a limited reference may
be made to the Statement of Objects and Reasons but it may not be relied on. It may be
employed for the purposes of comprehending the factual background, the prior state of
legal affairs, the surrounding circumstances in respect of the statute and the evil which
the statute has sought to remedy. It cannot be the exclusive footing upon which a statute
is made a nullity through the decision of a court of law.

The Statement of Objects and Reasons can be referred only for understanding the
background, the antecedent state of affairs, the surrounding circumstances in relation to
the state of affairs, and the evil which the statute has sought to remedy. It can be referred
to only to ascertain conditions prevailing at the time which prompted the introduction of
Bill but where the language of the statute is clear and plain it is not required to be referred
to.

It cannot be utilized for the purpose of restricting and controlling the plain meaning of the
language employed by the legislature in drafting a statute and excluding from its
operation such transactions which it plainly covers. In CIT, MP v Sodra Devi, while
dealing with Section 16(3) of the Income Tax Act 1922 as introduced by the Amending
Act IV of 1937, and in construing the words ‘any individual’ and ‘such individual’
occurring therein, Bhagwati J restricted their meaning to ‘males’ on a consideration that
the statement of objects and reasons appended to the Bill of Amending Act made it clear
that the evil which was sought to be remedied was the one resulting from the widespread
practice of husbands entering into nominal partnerships with their wives and fathers
admitting their minor children to the benefits of partnerships of which they were
members and that the only intention of the legislature was to include the income derived
by the wife or a minor child, in the computation of total income of the male assessee, the
husband or the father, as the case may be.

In Babu Ram v State of U.P, it was held that the statement of Objects and Reasons can
be referred to ascertain mischief sought to be remedied by the statute.

However, the Statement of Objects and Reasons have never been held admissible for
determining whether a certain provision of the Act, which was ultra vires was or was not
severable from the other provisions of the Act. A provision inserted by subsequent
amendment cannot be construed on the basis of the statement of objects and reasons of
the original statute.

(iii) COMMISSION/ INQUIRY COMMITTEE

Reports of Commissions or Inquiry Committees preceding the introduction of a Bill have

also been referred to as evidence of historical facts or of surrounding circumstances or of
mischief or evil intended to be remedied and at times for interpreting the act. In
the Transfer of Property Act, Section 53 A was inserted on the basis of
recommendations of the Special Committee set up by the Government of India.

Examples can also be taken from Sodra Devi’s Case in which Income Tax Enquiry
Report was referred, in Express Newpaper’s Case where the Press Commissions Report
was referred and in Madanlal’s Case where the report by Committee appointed to bring
changes in Company law was referred.

In CIT, AP, v Jayalakshmi Rice, and Oil Mills Contractor Co, it was held that the report
of the special committee which had been appointed by the Government of India to
examine the provisions of the Bill which later became the Partnership Act could not be
admitted for interpreting the provisions of the Act.

But a different view was taken in RS Nayak v AR Antuley where the court held that
report of the Committee which preceded the enactment of legislation, reports of Joint
Parliamentary Committee and Report of a Commission set up for collecting information
leading to the legislation are permissible external aids to the construction of the Act.

In M Ismail Faruqqui v Union of India, it was held by the Supreme Court that white
paper issued by the Government detailing the facts leading to enactment of a statute is
also admissible for understanding the background when the court is called upon to
interpret and decide the validity of the statute. In understanding the background of the
Babri Masjid dispute, in deciding the reference made under Article 143 and the
constitutionality of the Acquisition of Certain Areas of Ayodhya Act 1993 extensive
reference was made by the Supreme Court to the white paper.

In Samantha v State of Andhra Pradesh, in interpreting para 5(2) of the 5th Schedule

of the Constitution, reports of drafting committee and sub-committees of the Constituent
Assembly, the Draft Constitution and changes made thereafter in giving it the final shape
were referred by the Supreme Court.

However, in Maharani Kusumkumari v Kusumkumari Jadeja, the Law Commissions

Report as an external aid to construction was not relied on.

(iv) PARLIAMENTARY DEBATES

Parliamentary debates at the time of introduction of bill may be used as an external aid in
interpretation. It is a settled position that there can only be limited use of Parliamentary
Debates. The court should not normally critically analyze the proceedings of
Parliament. In Milton v DPP, in interpreting the term ‘prosecution’ under the Income Tax
Act, a minister’s speech at the time of introduction of Bill has been taken into
consideration.

(v) LETTERS

The letter written by Law Minister cannot override the statutory provision. When the
statute is very clear, whatever statement made by the Law Minister on the floor of the
House cannot change the words and intendment borne out from the words. It was held
that such a letter cannot be read to interpret the provisions of Section 100A CPC. The
intention of the Legislature is more than clear in the words and the same has to be given
its natural meaning and cannot be subject to any statement made by the Law Minister in
any communication. The words speak for themselves. It does not require any further
interpretation by any statement made in any manner.

Even if accepted, in the case of Parliamentary History as an aid to construction of a

statute, the general principle followed is that it can be used only in cases where the
statute is not clear or is ambiguous. Some Parliamentary opinions like ‘Bills’ and
‘statement of objects and reasons’ and Parliamentary debates are resorted to only to a
limited extent if at all accepted. However, reports of Commissions have more authority in
this regard.

On analysis, it is clear that courts under Common Law jurisdiction are wary of accepting
Parliamentary History as an external aid to interpretation of the statute.

UNIT- IV

Q.4. “The rule which requires that penal statutes should be construed
strictly, has lost much of its force in recent times”. Do you agree with
the above statement? Substantiate your answer and refer to decided
cases.

ANSWER:-

The principle that a statute enacting an offence or imposing a penalty is to be strictly

construed is not of universal application which must necessarily be observed in every
case. It is now only of limited application and it serves in the selection of one when two
or more constructions are reasonably open. The rule was originally evolved to mitigate
the rigour of monstrous sentences for trivial offences and although that necessity and that
strictness has now almost vanished, the difference in approach made to a penal statute as
against any other statute still persists.
According to Lord Esher, MR, the settled rule of construction of penal sections is that ‘if
there is a reasonable interpretation which will avoid the penalty in any particular case we
must adopt that construction. If there are two reasonable constructions we must give the
more lenient one.’

Interpretation of penal provisions must be in consonance with the principles underlying

fundamental rights. Any provision which visits an accused with adverse consequences
without affording him any remedy to disprove an item of evidence which stands against
his innocence, is inconsistent with the philosophy enshrined in Art 21. It was held by the
Supreme Court that they should so interpret such a provision as to dilute it to make it
amenable to Art 21 of the Constitution.

When words employed in a penal statute are not clear the principle ‘against double
penalisation’ would be applied. Failure to comply with a statute may attract penalty. But
only because a statute attracts penalty for failure to comply with the statutory provisions,
the same in all situations would not call for a strict construction. An interpretation which
strikes a balance between enforcement of law and protection of valuable human right of
accused (right of privacy) must be resorted to. § 105 of the Evidence Act 1872 says that
the burden to prove that the case of the accused falls within an exception to a statutory
offence lies on him. But the question whether the defence set up by an accused is really a
defence of an exception or a defence setting up non-existence of a fact which is an
ingredient of the offence to be proved by the prosecution depends upon the construction
of the particular statute.

In applying and interpreting a penal statute, public policy is also taken into consideration.
In a recent case, the House of Lords held that consensual sadomasochistic homosexual
encounters which occasioned actual bodily harm to the victim were assaults occasioning
actual bodily harm, contrary to § 47 of the Offences Against the Person Act 1861 and
unlawful wounding contrary to § 20 0f the Act, notwithstanding the victim’s consent to
the acts inflicted on him. The following are some of the propositions important in relation
to strict construction of penal statutes:

(a) if the scope of prohibitory words cover only some class of persons or some well
defined activity, their scope cannot be extended to cover more on consideration of policy
or object if the statute.

(b) prohibitory words can be widely construed only if indicated in the statute. On the
other hand if after full consideration no indication is found the benefit of construction
will be given to the subject.

(c) if the prohibitory words in their own signification bear wider meaning which also fits
in with the object or policy of the statute.

JK (Bombay) Ltd v. Bharti Matha Mishra

In this case, it was held that the expression ‘officer or employee of a company’ applies
not only to the existing officer or employee but also includes past officers or employees
where such an officer or employee either

· wrongfully obtains possession of any property, or

· wrongfully withholds the same after the termination of his employment.

The expression would also include the ‘legal heirs or representatives.’ It was held by the
court that the penal statutes should not be so liberally construed with the aid of
presumptions, assumptions and implications as to rope in for the purposes of prosecution
such persons against whom the prosecution is not intended by the statute and initiation of
prosecution would be violative of Art 21 of the Constitution and against public policy.

Virtual Soft Systems Ltd v. CIT

The questions that arose before the Supreme Court in the case prior to the amendments
by the Finance Act 2002 with effect from 1 April 2003 were:
· What was meant by the words ‘in addition to any tax payable’in the charging § 27(1) (c)
(iii)?
· What was meant by the term ‘total income’ in Explanation 4(a) therein?

Allowing the appeals, it was held by the court that the statute crating the penalty is the
first and the last consideration and the penal provision must be construed within the term
and language of the particular statute. § 271 of the Act is a penal provision and there are
well established principles for interpretation of such a penal provision. Such a provision
has to be construed strictly and narrowly and not widely; with the object of advancing the
object and intention of the legislature.

Municipal Corpn of Delhi v. Laxmi Narain Tondon

In this case, the definition of ‘sale’ in the Prevention of Food Adulteration Act 1954 was
construed in the sense having regard to the mischief intended to be remedied. It was held
that the ‘sale’ in the Act would include all commercial transactions where under an
adulterated article of food was supplied for consumption by one person to another person.
Therefore, supply or offer of food to hotelier to a customer when consolidated charge was
made for residence and other amenities including food fell within the definition.

Tolaram v. State of Bombay

In this case, § 18 of the Bombay Rents, Hotels and Lodging Houses Rates (Control) Act
1947 was construed. This section provided that ‘if any landlord receives any fine,
premium or other like sum or deposit or any consideration other than the standard rent in
respect of the grant, renewal or continuance of a lease of any premise, such landlord shall
be punished.’ It was held by the Supreme Court that the section did not prohibit the
taking of money by owner of an incomplete building in consideration

SUPPRESSION OF THE MISCHIEF

The language of the penal statute can also be interpreted in a manner which suppresses
the lacuna therein and to sabotage the mischief in consonance with the Heydon’s Case.
For instance in Ganga Hire Purchase Pvt. Ltd. Vs. State of Punjab AIR 2000 SC 499
while interpreting the section 60(3) of Narcotic Drugs and Psychotropic Substances Act,
1985, the word ‘owner’ was given a wider meaning for the purpose of confiscation of the
vehicle used in furtherance of the offence mentioned therein i.e. inclusive of the
registered owner where the vehicle was purchased under a hire purchase agreement when
all the instalments were not paid by him.

In the matter of Manjit Singh @ Mange vs C.B.I.( 25 January 2011), Hon’ble

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

In S.N. Dube vs. N.B. Bhoir(2000) 2 SCC 254. where the Apex Court observed that
“Section 15 of the TADA Act is an important departure from the ordinary law and must
receive that interpretation which would achieve the object of that provision and not
frustrate or truncate it and that correct legal position is that a confession recorded under
Section 15 of the TADA Act is a substantive piece of evidence and can be used against a
co- accused also, if held to be admissible, voluntary and believable.”

Mr. Tulsi used various judgments of the Apex Court including Dadi Jagganadhan v.
Jammulu Ramulu and Ors. AIR 2001 SC 2699,
where a Constitution Bench of this court observed: - “...The settled principles of
interpretation are that the Court must proceed on the assumption that the legislature did
not make a mistake and that it did what it intended to do. The Court must, as far as
possible, adopt a construction which will carry out the obvious intention of the
legislature. Undoubtedly if there is a defect or an omission in the words used by the
legislature, the Court would not go to its aid to correct or make up the deficiency. The
Court could not add words to a statute or read words into it which are not there,
especially when the literal reading produces an intelligible result. The Court cannot aid
the legislature's defective phrasing of an Act, or add and mend, and, by construction,
make up deficiencies which are there. The learned counsel contended that under Section
20A of the TADA, the sanction of the District Superintendent of Police is required to be
obtained before the police record any information about the commission of an offence
under the TADA. Since the same has not been obtained, the conviction of the accused
cannot be sustained. In the instant case, according to the learned counsel, the sanction
was obtained from the S.P., C.B.I.

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

Similarly in the leading matter of Reema Aggarwal v. Anupam Aggarwal AIR 2004
SC 1418 a broader meaning was attributed to the application of sections 304B and 498A
of the Indian Penal Code, in light of the broader purpose which was sought to be
achieved through these provisions and the mischief which was required to be cured. It
was also made applicable to the case where the legitimacy of the marriage itself was in
question to bring the accused within the purview of the word ‘husband’ as used in the
said provisions.

In Abhay Singh Chautala vs C.B.I. (on 4 July, 2011) the learned Senior Counsel Shri
Mukul Rohtagi as well as Shri U.U. Lalit arguing for the appellants, urged that on the day
when the charges were framed or on any date when the cognizance was taken, both the
appellants were admittedly public servants and, therefore, under the plain language of
Section 19 (1) of The Prevention of Corruption Act, the Court could not have taken
cognizance unless there was a sanction from the appropriate government. The learned
senior counsel analyzed the whole Section closely and urged that in the absence of a
sanction, the cognizance of the offences under the Prevention of Corruption Act could not
have been taken. It was also urged that a literal interpretation is a must, particularly, to
sub- Section (1) of Section 19. But the Apex Court observed- : “...we, therefore, reject the
theory of litera regis while interpreting Section 19(1)... However, as per the
interpretation, it excludes a person who has abused some other office than the one which
he is holding on the date of taking cognizance, by necessary implication. Once that is
clear, the necessity of the literal interpretation would not be there in the present case we
specifically hold that giving the literal interpretation to the Section would lead to
absurdity and some unwanted results ... hold that the appellants in both the appeals had
abused entirely different office or offices than the one which they were holding on the
date on which cognizance was taken and, therefore, there was no necessity of sanction
under Section 19.”

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

.
UNIT - V
Q.5. what do you understand by the Presumption against retrospective
operation of statutes. Also discuss its scope and limitations.

ANSWER:-

RETROSPECTIVE OPERATION OF LAW:

In Maxwell on the Interpretation of Statutes, 12th Edn. the statement of law in this
regard is stated thus:

"Perhaps no rule of construction is more firmly established than thus - that a retrospective
operation is not to be given to a statute so as to impair an existing right or obligation,
otherwise than as regards matters of procedure, unless that effect cannot be avoided
without doing violence to the language of the enactment. If the enactment is expressed in
language which is fairly capable of either interpretation, it ought to be construed as
prospective only. The rule has, in fact, two aspects, for it, "involves another and
subordinate rule, to the effect that a statute is not to be construed so as to have a greater
retrospective operation than its language renders necessary. "

In Francis Bennion's Statutory Interpretation, 2nd Edn, the statement of law is stated

as follows :

"The essential idea of legal system is that current law should govern current
activities. Elsewhere in this work a particular Act is likened to a floodlight
switched on or off, and the general body of law to the circumambient air. Clumsy
though these images are, they show the inappropriateness of retrospective laws. If
we do something today, we feel that the law applying to it should be the law in
force today, not tomorrow's backward adjustment of it. Such, we believe, is the
nature of law. Dislike of ex-post facto law is enshrined in the United States
Constitution and in the Constitution of many American States, which forbid it.
The true principle is that lex prospicit non respicit (law looks forward not back).
As Willes, J. said retrospective legislation is 'contrary to the general principle that
legislation by which the conduct of mankind is to be regulated ought, when
introduced for the first time, to deal with future acts, and ought not to change the
character of past transaction carried on upon the faith of the then existing law."

In Garikapati Veeraya v. N. Subbiah Choudhry, AIR 1957 SC 540 the SC observed as

thus : (Para 25 of AIR) "The golden rule of construction is that, in the absence of
anything in the enactment to show that it is to have retrospective operation, it cannot be
so construed as to have the effect of altering the law applicable to a claim in litigation at
the time when the Act was passed."

In Smt. Dayawati v. Inderjit (AIR 1966 SC 1423, in Para 10, it is held thus :

 "Now as a general proposition, it, may be admitted that ordinarily a Court of
appeal cannot take into account a new law, brought into existence after the
judgment appealed from has been rendered, because the rights of the litigants in
an appeal are determined under the law in force at the date of the suit. Even
before the days of Coke whose maxim - a new law ought to be prospective, not
retrospective in its operation - is off-quoted, Courts have looked with dis-favour
upon laws which take away vested rights or affect pending cases. Matters of
procedure are, however, different and the law affecting procedure is always
retrospective. But it does not mean that there is an absolute rule of inviolability of
substantive rights. If the new law speaks in language, which, expressly or by clear
intendment, takes in even pending matters, the Court of trial as well as the Court
of appeal must have regard to an intention so expressed, and the Court of appeal
may give effect to such a law even after the judgment of the Court of first
instance."

In Hitendra Vishnu Thakur v. State of Maharashtra (1994) 4 SCC 602 : (1994 AIR

SCW 3699 : AIR 1994 SC 2623 : 1995 Cri LJ 517) this Court laid down the ambit and
scope of an amending Act and its retrospective operation as follows :

"(i) A statute which affects substantive rights is presumed to be prospective in

operation unless made retrospective, either expressly or by necessary intendment,
whereas a statute which merely affects procedure, unless such a construction is
textually impossible, is presumed to be retrospective in its application, should not
be given an extended meaning and should be strictly confined to its clearly
defined limits.

(ii) Law relating to forum and limitation is procedural in nature, whereas law
relating to right of action and right of appeal even though remedial is substantive
in nature.

(iii) Every litigant has a vested right in substantive law but no such right exists in
procedural law.
 (iv) A procedural statute should not generally speaking be applied retrospectively
where the result would be to create new disabilities or obligations or to impose
new duties in respect of transactions already accomplished:

(v) A statute which not only changes the procedure but also creates new rights and
liabilities shall be construed to be prospective in Operation unless otherwise
provided, either expressly or by necessary implication."

In K. S. Paripoornan v. State of Kerala (1994) 5 SCC 593 @ p. 636 : (1995 AIR SCW
1004 : AIR 1995 SC 1012), this Court while considering the effect of amendment in the
Land Acquisition Act in pending proceedings held thus in Para 47 thereof as:

‘‘...In the instant case we are concerned with the application of the provisions of
Sub-sec. (1-A) of S.23 as introduced by the Amending Act to acquisition
proceedings which were pending on the date of commencement of the Amending
Act. In relation pending proceedings, the approach of the Courts in England is
that the same are unaffected by the changes in the law so far as they relate to the
determination of the substantive rights and in the absence of a clear indication of a
contrary intention in an amending enactment, the substantive rights of the parties
to an action fall to be determined by the law as it existed when the fiction was
commenced and this is so whether the law is change before the hearing of the case
at the first instance or while an appeal is pending ( Halsbury's Laws if England,
4th Edn. Vol. 44, para 922)."

In State of M.P. and another, vs.. G.S. Dall & Flour Mills, AIR 1991 SC 772, The
Apex Court in Para 21 of the judgment the Apex Court has observed that

"the notification of 3/71187 amending the 1981 notification with retrospective

effect so as to exclude what may be described in brief as 'traditional industries'
though, like Rule 14 of the deferment rules, the exclusion extends' even to certain
other non-traditional units operating in certain situations. Though this notification
purports to be retrospective, it cannot be given such effect for a simple reason. We
have held that the 1981 notification clearly envisages no exclusion of any industry
 which fulfils the terms of the notification from availing of the exemption granted
under it. In view of this interpretation, the 1987 amendment has the effect of
rescinding the exemption granted by the 1981 notification in respect of the
industries mentioned by it. S. 12 is clear that, while a notification under it can be
prospective or retrospective, only prospective operation can be given to a
notification rescinding an exemption granted earlier. In the interpretation we have
placed on the notification, the 31, 7 87 notification cannot be treated as one
merely clarifying an ambiguity in the earlier one and hence capable of being
retrospective; it enacts the rescission of the earlier exemption and, hence, can
operate only prospectively. It cannot take away the exemption conferred by the
earlier notification".

In the case of Mithilesh Kumari and another, vs. Prem Behari Khare, AIR 1989 SC
1247, the Apex Court in Para 21 of its judgment as:

"A retrospective operation is not to be given to a statute so as to impair existing

right or obligation, otherwise than as regards matter of procedure unless that
effect cannot be avoided without doing violence to the language of the enactment.
Before applying a statute retrospectively the Court has to be satisfied that the
statute is in fact retrospective. The presumption against retrospective operation is
strong in cases in which the statute, if operated retrospectively, would
prejudicially affect vested rights or the illegality of past transaction, or impair
contracts, or impose new duty or attach new disability in respect of past
transactions or considerations already passed, However, a statute is not properly
called a retrospective statute because a part of the requisites for its action is drawn
from a time antecedent to its passing. The general scope and purview of the
statute and the remedy sought to be applied must be looked into and what was the
former state of law and what the legislation contemplated has to be considered.
Every law that impairs or takes away rights vested agreeably to existing laws is
retrospective, and is generally unjust and may be oppressive. But laws made justly
and for the benefit of individuals and the community as a whole may relate to a
time antecedent to their commencement. The presumption against retrospectivity
 may in such cases be rebutted by necessary implications from the language
employed in the statute. It cannot be said to be an invariable rule that a statute
could not be retrospective unless so expressed in the very terms of the section
which had to be construed. The question is whether on a proper construction the
legislature may be said to have so expressed its intention".

In the case of Hukam Chand etc. vs.. Union of India and others, AIR 1972 SC 2472 the
Apex court had occasion to deal with the following aspects of the subject under context
and held:

In the Displaced Persons (Compensation and Rehabilitation) Act (44 of 1954),

S.40 & 49 of it. There is nothing in S. 40 from which power of the Central
Government to make retrospective rules may be inferred. In the absence of any
such power, the Central Government acted in excess of its power in so far as it
gave retrospective effect to the Explanation to Rule 49. The Explanation could not
operate retrospectively and would be effective for the future from the date it was
added. - Paras 5, 6, 7, 10 of the judgment.

The fact that the rules framed under the Act have to be laid before each House of
Parliament would not confer validity on a rule if it is made not in conformity with
S. 40 of the Act. The laying referred to in S. 40 (3) is of the category of 'laying
subject to negative resolution' because the above sub-section contemplates that the
rule would have effect unless modified or annulled by the House of Parliament.
The act of the Central Government in laying the rules before each House of
Parliament would not, however, prevent the courts from scrutinizing the validity
of the rules and holding them to be ultra vires if on such scrutiny the rules are
found to be beyond the rule making power of the Central Government. - Para 11
of the judgment.

CONSTITUTIONAL PROVISO:

Constitution of India, Art.245 - Subordinate legislation - Extent of power - Rule making

authority has to act within limits of power delegated to it. Unlike Sovereign Legislature
which has power to enact laws with retrospective operation, authority vested with the
power of making subordinate legislation has to act within the limits of its power and
cannot transgress the same. The initial difference between subordinate legislation and the
statute laws lies in the fact that a subordinate law making body is bound by the terms of
its delegated or derived authority and that court of law, as a general rule, will not give
effect to the rules, thus made, unless satisfied that all the conditions precedent to the
validity of the rules have been fulfilled. Further, retrospective effect cannot be given to a
subordinate legislation unless it is authorized by the parent statute or a validating statute.

THE CONCEPT OF ULTRA VIRES: In India, when the Legislature delegates

legislative power to an administrative authority without offering any guide lines, the
validity of the relevant statute may be attacked on following grounds, viz;

a. The statute offends against Arts. 14 & 19 of the Constitution on the ground of
unreasonable or arbitrary on the part of the legislature to confer uncontrolled
discretionary power upon an administrative authority.
b. That the statute is invalid because of excessive delegation of abdication of
legislative power by the legislature.
c. retrospective effect cannot be given to a subordinate legislation unless it is
authorized by the parent statute or a validating statute

It is crystal clear that the Statutes dealing with substantive rights - is prim facie /
generally prospective unless it is expressly or by necessary implications made to have
retrospective operation. But the rule in general is applicable where the object of the
statute is to affect the vested rights or impose new burdens or to impair existing
obligations.  Statutes dealing with procedure - In contrast to statutes dealing with
substantive rights, statutes dealing with merely matters of procedure are presumed to
retrospective unless such a construction is textually inadmissible. According to Lord
Dennig:

"The rule that an Act of Parliament is not be given retrospective effect applies
only to statutes which affect vested rights. It does not apply to statutes which only
 alter the form of procedure or the admissibility of evidence, or the effect which
the courts give to evidence"

In the light of the above judgments, and the principles laid down therein that the new
Act / Rule affecting, existing rights or creating new obligations, is presumed to be
prospective only.