INTRODUCTION

ROLE OF JUDICIARY
Importance of Statutory Interpretation

1. why does a statute need to be interpreted?

Uncertainty and/or lacuna in law. The following three interface; this trifecta is applied for the purpose of
interpretation. These three things are applied--> aliging with the object.
a. linguistic text: something that is connecting the legal terminology (i.e., english words, grammar,
etc.)
b. legal text: essentially comprises legal terminologies
c. constitutive aim: aim of the statute

Drafting Errors: how do we presume that when a legislature is drafting a particular statute

Changed Circumstances

Incomplete Rules — Unanticipated Cases: it is not possible for the drafter to anticipate every single
fact-scenario

Implied Delegation (role of judiciary): Given to the judiciary

Vagueness & Obscurity

Where and What kind of laws are to be applied in what circumstances

2. what is the role of judiciary in interpretation?

Judicial Review: Judicial Review can be understood as a form of court proceeding, usually in the
Administrative Court where the lawfulness of a decision or action is reviewed by the judge. Where there
is no effective means of challenge, judicial review is available. The concern behind Judicial Review is
that whether the law has been correctly applied with and right procedures have been followed. It is a type
of court proceeding in which a judge reviews the lawfulness of a decision or action made by a public
body. The need of identifying a set of rules when gaps in the application of laws arose. This is required
for the functioning of a democracy.

HCs & SCs have this power; constitutional justice. whether the decision is consistent w the consti ethos;
through the process of judi. rev.; law has evolved allowing the judiciary to take a step ahead to do
something more (why? refer to previous discussions).

Procedure Established by Law: It means that a law enacted by the legislature or the concerned body is
valid only if the correct procedure has been followed to the letter.

Importance of Judicial Review:

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It is essential for maintaining the supremacy of the Constitution. It is essential for checking the
possible misuse of power by the legislature and executive. It protects the rights of the people.
It maintains the federal balance. It is essential for securing the independence of the judiciary.
It prevents tyranny of executives.

Problems with Judicial Review:

It limits the functioning of the government. It violates the limit of power set to be exercised by the
constitution when it overrides any existing law. In India, a separation of functions rather than of
powers is followed. The judicial opinions of the judges once taken for any case becomes the standard for
ruling other cases. Judicial review can harm the public at large as the judgment may be influenced by
personal or selfish motives. Repeated interventions of courts can diminish the faith of the people in
the integrity, quality, and efficiency of the government.

Benjamin Cardozo’s Perspective on the Role of Judges

Principles of law, especially the judge-made ones, have not come together by chance. Every single person
is influenced by a “stream of tendency” which gives us coherence and direction to think. Judges are not
immune to such a tendency.

Judges are influenced by forces (such as, instincts, beliefs, and convictions) that result in a certain outlook
on life that controls or guides their decision-making.

Judges, while interpreting govt. orders/precedents/statutes, act as “interpreter for the community” to
harmonize results of cases and ensure that justice and logic are upheld. This is a great amount of power
and may be subject to abuse, but it must be granted (i.e., necessary evil).

The power of judicial interpretation cannot be ignored. For instance, in the context of common law, these
principles were retested and reformulated gradually over a long perios of time: a seemingly unimportant
change may indeed be larger in magnitude down the line.

Crux — A multitude of factors influence judicial decision making: logic, historical development, customs
of the community, lines of justice/morals/social welfare, etc.

Judicial Adventurism: talks about when one is in a dangerous area, i.e., in the process of creating law
rather than interpreting it. Judicial Adven. is an extreme form of judicial activism (process of lawyers,
judges, society groups, etc. coming together for the evolution of law, especially when there is legislative
inaction. When the Judiciary goes beyond its territory and enters into that of the legislature or the
executive, thereby disrupting the balance of powers b/w the three organs of the State. Activism
encompasses more than the role of judiciary alone.

Judicial Activism: When the rulings of the court depend on the personal and political rational and
prudence of the judges rather than current legislation. They go beyond the set of laws. According to S.P.
Sathe, a court giving a new meaning to the provision to suit the changing social or economic conditions or
expanding the horizons of the rights of the individual is said to be an activist court.
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Judicial activism has arisen mainly due to: The failure of the executive and legislatures to act. Since there
is a doubt that the legislature and executive have failed to deliver the desired results. It occurs because the
entire system has been plagued by ineffectiveness and inactiveness. The violation of basic human
rights has also led to judicial activism. Due to the misuse and abuse of some of the provisions of the
Constitution, judicial activism has gained importance.
Necessity of Judicial Activism: To understand the increased role of the judiciary, it is important to know
the causes that led to the judiciary playing an active role. There was rampant corruption in other organs of
government. The executive became callous in its work and failed to deliver results required. Parliament
became ignorant of its legislative duties. The principles of democracy were continuously degrading.
Public Interest Litigations brought forward the urgency of public issues.

Activist Courts: from what is given in the set of laws, you go beyond that

Positivist Conventional Courts: simply follow what is given in the set of laws; working w a set of rules
identified years back, just have to simply follow.

Vishaka v. State of Rajasthan (1997) is an important case that reminds the need of Judicial activism.
Here, the SC laid down guidelines that ought to be followed in all workplaces to ensure proper treatment
of women. It further stated that these guidelines should be treated as a law until Parliament makes a
legislation for enforcement of gender equality.

Sheela Barse v. State of Maharashtra (1983): A letter by Journalist, addressed to the Supreme Court
addressing the custodial violence of women prisoners in Jail. The court treated that letter as a writ petition
and took cognizance of that matter.

Judicial Overreach: judge ought not to have decided on this legal issue because it is completely o/s its
power to do so (Ex: if CCI decides on Privacy). When Judicial Activism goes overboard, and becomes
Judicial Adventurism, it is referred to as Judicial Overreach. In simpler terms, it is when the judiciary
starts interfering with the proper functioning of the legislative or executive organs of the government.
Judicial Overreach is undesirable in a democracy as it breaches the principle of separation of powers.

A famous case of Judicial Overreach is censorship of the Film Jolly LLB II. The case was filed as a writ
petition, and alleged that the film portrayed the legal profession as a joke, making it an act of contempt
and provocation. The Bombay High Court appointed a three person committee to watch the movie and
report on it. This was viewed as unnecessary, as the Board Of Film Certification already exists and is
vested with the power to censor. On the basis of the report of the committee, four scenes were removed
by the directors. It was seen as violative of Article 19(2), as it imposed restriction on freedom of speech
and expression.

On a PIL about road safety, the Supreme Court banned the Sale of Liquor, at retail shops, restaurants,
bars within 500m of any national or state highway. There was no evidence presented before the court that
demonstrated a relation of ban on liquor on highways with the number of deaths. This judgement also
caused loss of revenue to state governments and loss of employment. The case was seen as an Overreach
because the matter was administrative, requiring executive knowledge.

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NJAC Bill and the 99th Constitutional Amendment being struck down – The National Judicial
Appointments Commission (NJAC) and the 99th Constitutional Amendment were declared illegal and
invalid by the Supreme Court. It also stated that the judiciary could not simply risk being entangled in a
web of government debt as it attempted to give politics and civilized society the final say in appointing
justices to the highest courts. The court decided that the college system would be reinstated.

INOX Leisure Ltd. v. PVR Ltd. (2020) in the context of Judicial Adventurism

Facts: In this case, a peculiar situation arose. Inox had filed a suit against PVR becuase the latter was
attempting to breach one of INOX's agreements.

Judgment: The Delhi HC (Single Judge) dismissed INOX's suit and imposed costs (5L INR) becuase
INOX has indulged in ‘judicial adventurism.’ On appeal, this order got set aside.

Crux: “judicial adventurism” is generally used in respect of a judicial authority and cannot be attributed
to a litigant.

Judicial Restraint: Judiciary had to bring up a legal issue through some avenue (like, there was no direct
link). If this restraint is put during adventurism, it would be judicial review, there would be no judicial
overreach. Judicial Restraint is the antithesis of Judicial Activism. Judicial Restraint is a theory of judicial
interpretation that encourages judges to limit the exercise of their own power.

Recently, the Supreme Court (SC) refused to treat the Central Vista project as a unique one requiring
greater or heightened judicial review. The SC said the government was “entitled to commit errors or
achieve successes” in policy matters without the court’s interference as long as it follows constitutional
principles. The SC respected separation of power.

Almitra H. Patel v. Union of India (1998): the Supreme court refused to direct the Municipal
Corporation on the issue of assigning responsibility for cleanliness of Delhi and stated that it can only
assign authorities to carry out duty that is assigned as per law.

Absurd Result: when this decision does not suffice the purpose of the law; in these cases, the judges
move on to judi. rev./judi. adventurism.

Common Law Principles are judicially recognised principles. When these principles (norms and rules)
were evolving, there were certain basic humans conduct. There is some sort of a grant hierarchy
Previously, these norms stemmed from natural law. However, wrt common law principles, there is some
sort of recognition that is given. General avenues for recognition — declare, interpret, or create the law.
What is the mode that commmon law took? Declaration of law.

Interpretation became important post codification of laws. Why were jurists talking about interpretation
even before codification?
 Sovereign — motivation
 Role of Participants — Consciousness:
 Changing Times
 Precedents

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  Religious ideals for evolution of law
Interpretation + Role of Judiciary (with its conscience) together play a role in the above-mentioned
aspects

Ambiguity vs Vagueness
 Both these stem from indeterminant meanings; they belong to one big umbrella
 Ex: A is tall. The connotation of 'tall' could be subjective (depending on the demography). Is this
ambiguity or vagueness?
 Ambiguous: multiple meanings (i.e., two or more); Some legal texts are ambiguous, i.e., they contain
words or phrases that can have two or more distinct meanings.
 Vague: some legal texts are vague, i.e., they use concepts that have indefinite application to particular
cases. There are lot's of terms that are like tall: short, strong, weak, beautiful, ugly, heavy, light,
warm, and cool--all of these are terms that seem to have borderline cases. And that is one way that
we might define vagueness. A term is vague, we might say, if and only if it has borderline cases.
 Both: Some legal texts are both vague and ambiguous, i.e., they have multiple meanings, some (or
all) of which have indefinite applications.
 context helps the meaning...clears ambiguity.
 we are talking about ambiguity with respect to a word/phrase. Here, it is the word/phrase that is
problematic; i.e., when there are multiple meanings possible (there can be multiple
constructions/results coming out of it, thereby resulting in vagueness).
 Context gives meaning to a general (or an ambiguous) word;
 construction pertains to coming to two or more conclusions/expressions by defining/giving meaning
to a particular word. The one construction that is suitable to any particular fact-scenario is, actually,
the interpretation.
 This area of multiple constructions = uncertainty in law
 absurd result: when the decision (i.e., the interpretation) does not seem fair/just
IoS: Read [https://lsolum.typepad.com/legal_theory_lexicon/2006/08/legal_theory_le.html]; two articles

Absurd Result + Literal Interpretation

Absurd Result is something that does not go with the intention of the legislation, thereby giving such a
result. Provides the judges a very powerful tool — Absurd Result Principle. When the meaning of a
provision(s) on the facts and circumstances of a case ends up being objectionable. If this meaning is not
accepted and the judge is going w another interpetation by using some tool — in a way, this is creation of
law.
Rule of Law — two imp. pointers vis-a-vis interpretation:
1. Law is predictable & certain
2. Law is supposed to be wholesome (i.e., it should not contradict any other legal principle)
Absurd result principle violates the rule of law? Rather, it helps rule of law. If absurd interpretation
becomes a precedent, it will lead to unjust principles becoming law. Wholesome pertains to the spirit of
laws.
Moreover, the alternative interpretation must justify the spirit of laws (this encompasses intention,
purpose, scope, aim, law before the precedent and its deficiencies, what is rectified by the new/alternative
interpretation, committee reports, status of the country, ratified conventions, foreign judicial decisions,
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etc. — everything is looked at, i.e., this is a holistic analysis). Culmination of this analysis results into
an idea of what the law wants to say, i.e., the spirit of laws.

Subsequently, the judiciary provides for an interpretation that backs such a spirit of laws. The weightage
of each factor (title, preamble, trauvaux prepaitoires, etc.) may vary according to the judge who is
adjudicating.
We need spirit of laws because, as time changes, the relevance and applicability of the law might also
change. However, the spirit of laws do not change. At the same time, committee reports assess the current
law in light of how the society is operating; thereafter, the law is modified accordingly.

Interpretation, according to Salmond, is a process by which the courts seek to ascertain the meaning of
the legislature through the medium of authoritative forms in which it is expressed. There is no sense of
clarity here though.

Interpretation, according to Cross, is the process by which the courts determine the meaning of
statutory provisions for the purpose of applying it to the situations before them. There is, relatively, some
sense of clarity (as statutory provisions need to be looked at).

According to Blackstone, the most fair and rational mode of interpreting a statute is by exploring the
intention of the legislature — through texts [not going beyond the text of the legislature; literal
interpretation], the subject matter, consequences [workability; not getting an absurd result], or the spirit
and reason of the law [mischief rule; background; spirit of laws].
IoS: what is the difference b/w construction & interpretation
Construction vs Interpretation — one is the result of the other.

BONUS CASE THAT I HAVE PUT FOR NO REASON

ACTS, BILLS AND STATUTES

 A Bill is one that has been proposed by the legislature, but not approved by the President or the
Governor. The proposal does not have legal sanction.
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 Once it gets approved by either the President or the Governor, it becomes an Act. The legal
repercussion of this approval is enforceability.
 A Statute is the written form of legal sanction given by the legislature. It is something specific. An
Act is a bigger sub-set and has a wider scope.

INTERPRETATION AND CONSTRUCTION

 The judge has to interpret the law and apply it on the given case. Problem of interpretation arises
because of ambiguity in drafting, not in the legislation.
 Interpretation refers to simple linguistic meaning. The intention of the legislature is to be determined.
The objective of the legislature is to be determined – we need to look at the legal effect of the law.
 For instance, India was the first country to make CSR mandatory – 2% of the income needs to go
towards your CSR. That is the plain meaning of the section. Now if Ambani puts 2% towards setting
up of a school for children from privileged families, technically, all the boxes have been ticked.
However, we need to look at the purpose behind the insertion of CSR into the Companies Act – which
was welfare of those who need it. This is why we need construction.
Need for interpretation
 The ambiguity of the words used in the statute: Sometimes there will be words that have more
than one meaning. And it may not be clear which meaning has to be used. There could be multiple
interpretations made out of it.
 Change in the environment: We all know that society changes from time to time and there may
be new developments happening in a society that is not taken into consideration, this lacks the
predictability of the future event.
 Complexities of the statutes: usually statutes are complex and huge, it contains complicated
words, jargon and some technical terms which are not easy to understand and this complexity may
lead to confusion.
 When legislation doesn’t cover a specific area: Every time when legislations are out it doesn’t
cover all the area it leaves some grey areas and interpretation helps in bridging the gaps between.
 Drafting error: The draft may be made without sufficient knowledge of the subject. It may also
happen due to the lack of necessary words and correct grammar. This makes the draft unclear and
creates ambiguity in the legislature.
 Incomplete rules: There are few implied rules and regulations and some implied powers and
privileges which are not mentioned in the statute and when these are not defined properly in the
statute this leads to ambiguity.

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 THE FIVE GUIDING PRINCIPLES

MEANING OF INTERPRETATION AND CONSTRUCTION

According to Salmond, interpretation and construction refer to the process by which courts seek to
ascertain the meaning of the legislature through the medium of authoritative forms in which it is
expressed.

Cooley distinguishes the two terms:

 Interpretation is the art of finding out the true sense of any form of words, i.e., the sense which the
author intended to convey, and of enabling others to derive from them the same idea which the author
intended to convey.
 Construction is the drawing of conclusions, respecting subjects that lie beyond the direct expression
of the text and arriving at conclusions which are in the spirit though not within the letter of the law.

Interpretation helps in determining the real meaning and intention of the legislature. It is the process
adopted by the courts to determine the meaning of the legislature by way of legislative form. It tends to
clarify the meaning of those terms which are difficult to understand.

On the other hand, construction is used to ascertain the legal effect of the legal text. It determines the
sense and explanation of abstruse terms and draws a conclusion with respect to the subject that lies above
the direct expression of the legal text.

Basis for
Interpretation Construction
Comparison

Identification of the true Drawing inferences about the subject that are beyond
Meaning
sense of the statute. the direct expression of the text.

Determines Linguistic meaning. Legal effect.

Literal meaning of the words used in the legal text

The court complies with
exhibits ambiguous meaning and the court has to decide
Used when the simple meaning of the
whether the words used in the legal text cover the case
legal text.
or not.

However, this distinction has been largely relegated to the realm of academic discussion and has been
criticised as erroneous. In common usage, interpretation and construction are usually understood as
having the same significance.

INTENTION OF THE LEGISLATURE

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 A statute is an edict (declaration) of legislature and the conventional way of interpreting or construing
a statute is to see the intention of the maker.
 A statute is to be construed according to the intent of those who make it and the duty of the judicature
is to act upon the true intention (mens or sententia legis) of the legislature.
 The spirit of a statute needs to be culled out by looking at its object. Preambulatory clauses of Acts
help in doing so. Constitutional Assembly Debates can also pay an important role in some cases.
 The intention of the legislature has two aspects:
– One aspect carries the concept of ‘meaning’, i.e., what the words mean.
– The other conveys the concept of purpose and object or reason and spirit prevailing in the statute.
 Some examples of this doctrine are as follows:
– The Mental Health Bill it an act now in 2017 was introduced with the intention of bringing about
awareness. They have failed at this objective because the Bill understands mental health only in
the clinical sense.
– Principles enshrined in the Convention on Elimination of Discrimination Against Women
(CEDAW) were incorporated into the Vishakha guidelines, which were then codified into law.
– The intention of the CSR Act was the welfare of the people.

A STATUTE MUST BE READ AS A WHOLE IN ITS CONTEXT

 When interpreting a law, you have to see the previous statute and any supplementary rules in entirety.
You have to look into the changes made and also the reason why the previous Act was repealed.
 The Latin maxim ‘ex visceribus actus’ means that the words in a statute often take the meaning from
the context of the statute as a whole. They are, therefore, not to be construed alone.
 Example: Company law. Change in the definition of control – why? Look at whole context, the
previous acts as well as the supplementary rules.
Case laws: Case laws
 Bhatia Case
 Bharat Aluminium Co v. Kaiser Aluminium Technical Services Inc106(BALCO) ( purpose
of the act and read the act in whole context in alignment with intention of the act (UNICTRAL
Model))( The judgement prospectively insulates arbitrations seated outside India and foreign
awards from the unwelcome interference by the Indian courts)
Judicial intervention has been rendered minimal, this being the basic underlying objective of the
ACA, 1996.
Purpose and objective: 1. Non- interference by the judiciary in arbitral proceedings is a fundamental
theme of 1996 Act
2. there is only supervisory role of the Indian courts in setting aside the award under sec34 of ACA
1996 ( setting aside of the award in conflict with public policy)
3. International commercial arbitration in India is regulated by the Arbitration and Conciliation Act
1996 (the “Arbitration Act”). The Arbitration Act is divided into two parts: Part I provides a
framework of rules for domestic arbitrations, that is, any arbitration seated in India, including an
arbitration involving a foreign party but seated in India; and Part II provides rules for the recognition
and enforcement of foreign arbitral awards, that is, those resulting from arbitrations seated outside
India whether or not an Indian party is involved.
The Arbitration Act closely follows the UNCITRAL Model Law on International Commercial
Arbitration which provides a suggested legal framework for international arbitration which respects
party autonomy and places limits on the extent to which local courts may interfere in the arbitral
process, particularly in relation to arbitrations held in other jurisdictions.
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 4. However, in a series of decisions the Indian courts severely eroded this principle of non-
intervention. In particular, the Supreme Court’s own 2002 decision in Bhatia International v Bulk
Trading S.A. (“Bhatia International”)3 found that Part I of the Arbitration Act applied equally to
arbitrations held outside India, thereby justifying higher levels of court intervention (which was
neither the purpose or objective of the 1996 Act, the very act was brought into picture and repealed
the 1940 act because there was lot of intervention by the judiciary of India in arbitral proceedings). In
another decision, the Court held that any foreign arbitral award that contravened Indian law was
illegal and liable to be set aside on the grounds of public policy.
The net effect of these decisions was that the Indian courts had the power to reopen and review any
foreign arbitral award, whether seated within India or not and whether or not a party was seeking to
enforce that foreign award in India. As a result of this approach, parties who had agreed to resolve
their disputes by arbitration in, for example, Singapore could nonetheless be dragged into legal
proceedings before the Indian courts even before any attempt at local enforcement was made. This
approach was the source of considerable concern amongst foreign parties engaged in commercial
transactions in India and had attracted substantial criticism from lawyers and academics in India and
elsewhere.
Facts( BALCO CASE)
The parties had entered into an agreement in relation to the supply of equipment, modernization and
upgradation of production facilities. Certain disputes arose and were referred to arbitration seated in
England and awards were made in favour of the Respondent. The Appellant had filed applications to
set aside the award before the Chhattisgarh High Court under Section 34 of the Act (which falls under
Part I dealing with domestic arbitrations or foreign arbitration if the seat of arbitration is in India).
Relevant Clauses of the Agreement
Article 17 - Arbitration
17.1 Any dispute or claim arising out of relating to this agreement shall be in the first instance
endeavor to be settled amicably by negotiation between the parties hereto and failing which the same
will be settled by arbitration pursuant to the English Arbitration Law ( parties autonomy very
important for ACA 1996)and subsequent amendment thereto.
17.2 The arbitration proceedings shall be carried by two arbitrators, one appointed by the Petitioner
and one by the Respondent chosen freely and without any bias. The Court of arbitration shall be
wholly in London, England and shall use the English language in the proceedings. The finding and
award of the Court of Arbitration shall be final and binding.
17.3 Before entering upon the arbitration, the two Arbitrators shall appoint an Umpire. If the two
arbitrators are not able to reach an agreement on the selection of an Umpire, the Umpire shall be
nominated by the International Chamber of Paris.
Article 22 - Governing Law
This agreement will be governed by the prevailing law of India and in case of Arbitration, the English
Law shall apply.
The aforesaid clause itself indicates that by reason of the agreement between the parties, the
governing law of the agreement was the prevailing law of India. However, the settlement procedure
for adjudication of rights or obligations under the agreement was by way of arbitration in London and
the English Arbitration Law was made applicable to such proceedings. Therefore, the lex fori for the
arbitration is English Law but the substantive law will be Indian Law.
Judgment [BALCO II]
The court held that Article 22 is clear in providing that the proper law of the contract is Indian law.
They further held that Article 17.1 provided for English law to be the law applicable to the arbitration
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 agreement. Therefore, the court found that English law was the law applicable to the arbitration
agreement. In light of the same, the court upheld the decision of the High Court dismissing the
Section 34 applications.
Analysis
The court read the arbitration clause in light of "party autonomy" being the "grundnorm" of
international commercial arbitration and stated that when interpreting such an agreement, it must be
kept in mind that parties would have intended to avoid impracticable and inconvenient processes
and procedures. The court therefore found that the proper law of contract was clearly Indian law
while English law was only the law governing the arbitration agreement.
 In Bharat Aluminium the Supreme Court found that by adopting the UNCITRAL Model Law the
Indian legislature had accepted the territorial principles contained within the Model Law. According
to those principles, the “place” or “seat” of the arbitration agreed by the parties to an arbitration
agreement provides the law governing that arbitration. The Court accepted that the Arbitration Act
distinguished between domestic awards, as those rendered by arbitral tribunals seated within India,
and foreign awards, as those rendered by tribunals seated in other jurisdictions. The Court confirmed
that Part I of the Arbitration Act, and the intrusive powers it gives to the courts, only applies to
arbitrations seated in India.
 Provisions of Part I and Part II do not overlap and Part II is not merely supplementary. There is
complete segregation between them as Part I deals with all four phases of arbitration-
commencement, conduct, challenge and recognition and enforcement while Part II pertains only to
recognition and enforcement of foreign awards.( there was a particular intent of the legislature to
divide the two said awards in two different parts of the Act, so that the Indian judiciary could not take
any extra territorial application of any reliefs granted in part 1 of the Act to foreign awards seated
outside India)

STATUTE TO BE CONSTRUED TO MAKE IT EFFECTIVE AND WORKABLE

 This principle follows the Latin maxim ‘ut res magis valeat quam pereat’, i.e., it is better for a thing
to have effect than to be void.
 which means that it is better to validate a thing than to invalidate, which conveys that it is better the
Act prevails than perish.
 No effort should be made to make an enacted law as „futility‟ since a lot of work is done in the
making of the law to achieve the objectives or purposes. It should not be frustrated merely on the
ground that the Statute contains repugnant or inconsistent provisions or suffers from ambiguities or
other reasons. This is based on the principle „ut res magis valeat quam pereat‟. This means the courts
while construing Statutes must presume in favour of its constitutionality and consider it as within the
competence of the legislature to make such a law. Only in cases where “it is impossible to resolve the
ambiguity” or the language used is “absolutely meaningless”, the Statutes must be held void – that
too, not many cases which came for judicial scrutiny. In other words, „vagueness‟ is not a ground to
hold the Statute as void. The courts must make ceaseless effort to find some meaning to the provisions
rather than hold them as void and in cases where several meanings could be given, one which has
close bearing to the Statute may be given.
 The courts strongly lean against a construction which reduces a statute to futility. A statute or enacting
provision therein must be so construed so as to make it effective and operative on the aforementioned
maxim.
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 There is always a presumption in favour of constitutionality of the statute.
 The importance of the principle can be judged from the fact that there is hardly any reported decision
where a statute may have been declared void for sheer vagueness, obscurity and ambiguity.
 Where a statute has some meaning, even if it is obscure, or has several meanings, even though it is
little to choose between them, the courts have to say what meaning the statute is to bear rather than
rejecting it as nullity. It follows the doctrine of severability.
 If meaning is plain, effect must be given to it irrespective of the consequences (this line gives a
demarcation between interpretation and construction). When the words of the statute are clear, plain
and unambiguous, i.e., they are reasonably susceptible to only one meaning, the courts are bound to
give effect to that meaning irrespective of consequences.
 Tindal, C.J., in the Sussex Peerage case, held that if the words of the statute are in themselves precise
and unambiguous, then no more can be necessary than to expound those words in their natural and
ordinary sense. The words themselves do alone in such cases best declare the intent of the law-givers.
 In other words, where the language is plain and unambiguous and admits of only one meaning, no
question of construction of a statute arises, since the Act speaks for itself.
 Case: Sirsilk case

APPRAISAL OF THE PRINCIPLE OF PLAIN MEANING

An appraisal of the principle of the plain meaning has to be done by looking at the purpose with which
the Act was brought into being as well as other surrounding Acts. It is not possible to decide whether
certain words are plain or unambiguous unless they are studied in their context and construed. Thus, the
rule means that after you have construed the words and have come to the conclusion that they bear only
one meaning, your duty is to give effect to that meaning.

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 GENERAL PRINCIPLES

General principles in interpretation of statutes are of two kinds – primary and secondary principles.

PRIMARY PRINCIPLES
LITERAL / GRAMMATICAL / PLAIN RULE OF CONSTRUCTION
 Literal or strict rule of construction means that while construing it, judges have to give plain and
grammatical meaning to the text (if such meaning is clear and unambiguous) Prima facie and follow it
irrespective of the consequences. (The eighteenth and nineteenth centuries saw a trend towards a more
literal approach. Courts took an increasingly strict view of the words of a statute: if the case before
them was not precisely covered they were not prepared to countenance any alteration of the statutory
language. One of the leading statements of the literal rule was made by Tindal CJ in the Sussex
Peerage Case (1844) 11 Cl&Fin 85:
“… the only rule for the construction of Acts of Parliament is, that they should be construed according
to the intent of the Parliament which passed the Act. If the words of the statute are in themselves
precise and unambiguous, then no more can be necessary than to expound those words in their natural
and ordinary sense. The words themselves alone do, in such case, best declare the intention of the
lawgiver.
(has gone to extend sometimes where courts have said that even if giving plain meaning leads to
absurdity or an injustice still we have to take literal meaning because they have an erroneous belief
that would have been the intention of the legislature. But in practicality we never used the above
principle in such circumstances.)
 Textualism: Textualism is consistent with the Plain Meaning Rule. The plain meaning of a word is
determined by its dictionary definition, its placement in the body of the text, and its common usage at
the time the statute was written. A judge that relies solely on the literal or plain meaning of a text does
not consider supporting or supplementary sources, such as modern social policy or legislative history,
when interpreting a statute. Textualism is a method of statutory interpretation whereby the plain text
of a statute is used to determine the meaning of the legislation. Instead of attempting to determine
statutory purpose or legislative intent, textualists adhere to the objective meaning of the legal text.
 It entails ‘interpreting as it is’ not what ought to be. The words of the law are to be given ordinary
and natural meaning. When the language is plain and unambiguous and admits of only one meaning,
no question of construction of statutes arises. When the language of a statute is plain, words are clear
and unambiguous and give only one meaning, then effect should be given to that plain and ordinary
meaning only.
 Natural meaning has to be interpreted using the grammatical rules. (that is to say their natural
meaning)
 No modification or logical construction has to be given by the judges.
 The basis of this principle is to know what the legislature intended and such intention is known
through interpretation according to the rules of grammar. When the language used on the statute is
unambiguous and on a plain grammatical meaning being given to the words in the statute, the end
result is neither arbitrary , nor irrational nor contrary to the object of the Act, then it is the duty of the
court to give effect to the rods is used in the statute because the words declare the intention of the law-
making authority at best.

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 It is also known as the safest rule as the intention of the lawmaker is deduced from language used by
the lawmaker only. There is a presumption that that the intent of the legislature is always correct and
has to be upheld and maintained.
 This rule is applied unless such application leads to some absurdity or unless there is something in the
context, or in the object of the statute to suggest the contrary.
 The plain meaning rule attempts to guide the courts faced with litigation that turns on the meaning of
a term not defined by the statute or on that of the word found within the definition itself. (Example
controversy with control definition in Competition act and SEBI regulation)
 While applying this rule you have to keep in mind that a text means one thing in legal context and
secondly no scientific or technical definition needs to be given to words until and unless the intention
of the legislation tells us to do otherwise. So, the plain meaning of legal text is something like the
meaning that would be understood by competent speakers of the natural language in which the text
was written who are within the intended readership of the text and who understands that the text is a
legal text of certain type.
 Rules used by the judges:
– Litera legis (go by the words of law): Read the particular provision in the form it is given, do not
change the sequence of the sections while reading them. If there are three sections, you have to
read them in order and not in isolation.
– Ita Sriptum (as the words are): using literal rules, you cannot modify the meaning of the words.
 The advantages of using this rule are:
– No scope for the judges’ own opinions to interfere.
– Respect parliamentary supremacy and uphold separation of powers.
– It forces judges to carry out the parliament’s intention, i.e., the legislative intent.
– It promotes certainty in law and reduces litigation.
 Fallacies:
– There is a presumption that the intention of the legislature is correct. This may not always be the
case.
– Consequences completely ignored. May be correct for taxation law, but not with all laws in the
current era.

 Ramavatar Budhiprashad vs Assistant Sales Tax Officer

 (the words in the act must be interpreted in the light of their popular meaning or common
parlance meaning as understood by the common man and the persons dealing with such articles in
their day to day life. Thus the word vegetables used in taxing statute is to be understood as in
common parlance i.e denoting a class of vegetables which are grown in the kitchen garden or in
farm or used in table.) (A)- Dictionary meaning: Reliance was placed on the dictionary meaning of
the word "vegetable" as given in Shorter Oxford Dictionary where the word is defined as "of or
pertaining to, comprised or consisting of, or derived, or obtained from plants or their parts".)But
this word must be construed not in any technical sense nor from the botanical point of view but as
understood in common parlance. It has not been defined in the Act and being a word of every day
use it must be construed in its popular sense meaning "that sense which people conversant with the
subject matter with which the statute is dealing would attribute to it." The term "vegetables" is to be
understood as commonly understood denoting those classes of vegetable matter which are grown in
kitchen gardens and are used for the table."

14
  The act of sale of vegetable does not attract sales tax. Therefore, when an assistant sales tax officer
wanted to tax the sale of betel leaf, a vendor objected on the ground that betel leaf was a vegetable.
He claimed exemption. To advance his argument, he relied on the dictionary meaning of vegetable
in the Shorter Oxford Dictionary and text books on botany. This refers to the case of Ramavatar
Budhiprashad vs Assistant Sales Tax Officer reported in AIR 1961 SC 1325 which has become a
landmark judgement by the SC.
The SC did not accept the scientific or dictionary meaning of the word vegetable and observed that it
must be construed not in any technical sense nor from a botanical point of view, but as understood in
common parlance. It held: It has not been defined in the Act and being a word of everyday use, it must
be construed in its popular sense, meaning that sense which people conversant with the subject matter
with which the statute is dealing would attribute to it. It is to be understood as understood in common
language. In this view, betel leaf was not a vegetable but a condiment. Not being a vegetable, it could
not enjoy exemption from sales tax.
The judgement lays down the basic principle that a vegetable is one that in market parlance is known as
such. This is the definition of vegetable for fiscal laws, but not so for students of botany who would
regard betel leaf as a vegetable. So the definition depends upon who asks the question. For a botany
student, betel leaf is a vegetable, but not so for a tax collector.

Whitely v Chappel (1868) LR 4 QB 147

A statute made it an offence 'to impersonate any person entitled to vote.' The defendant used the vote of a
dead man. The statute relating to voting rights required a person to be living in order to be entitled to
vote.
Held: The literal rule was applied and the defendant was thus acquitted.
(though you can see the intention of the parliament was to punish people who were trying to impersonate,
but literal rule does not take into account the consequences of literal interpretation: punish the
wrongdoer. Now if parliament does not like the literal interpretation, then it must amend the legislation.

R. v. Harris. Stabbing, cutting or wounding someone was deemed to be an offence. A person bit
another’s nose. The Court held that biting did not fall under the terms ‘stabbing’, ‘cutting’ or
‘wounding’ as these words implied that an instrument had to be used. Under the literal rule, biting was
not seen to be stabbing, cutting or wounding.

Bharat Aluminium Company v. Kaiser Aluminium Technical Services Inc. A Constitution Bench of
the Supreme Court was called upon to decide whether Part I of the Arbitration and Conciliation Act, 1996
applies to arbitral proceedings taking place outside India. Section 2(2) of Part I of the Act provides that
this part shall apply where the place of arbitration is in India and not that the part shall only apply where
the place of arbitration is in India.

It was held that the absence of the word ‘only’ from Section 2(2) could not be construed so as to
make Part I of the Act applicable to arbitrations taking place outside India . As a plain reading of
Section 2(2) makes it clear, Part I is limited in its application to arbitrations which take place in India.
There is no ambiguity and therefore no need of construction.

Coal and Charcoal (fuel)

15
There’s a difference in the chemical composition between the two. The colliery control order deals with
coal. The primary purpose is to control the mining of coal for safety and environmental reasons. This law
specifically deals with coal.
Coal was taxed at 4% and Fuel like firwood etc was taxed at 2%. The question is where would charcoal
go under the sales tax. Charcoal is used as a fuel and the only difference between coal and charcoal is just
chemical composition. Though the difference between the two is minute, the intention of the two
legislatures which tax them both is v different.

Charcoal and coal are used differently. Charcoal is used a fuel so any taxation laws would ideally have
charcoal under it.

It was noted that in the construction of a statute, you have to look at:
– The statute as a whole.
– The previous state of the law.
– Other statutes in pari materia.
– The general scope of the statute.
– The mischief that it was intending to remedy.

Commissioner of Sales Tax, MP Indore v. Jaswant Singh Charan. In construing the word ‘coal’ in the
Sales Tax Act, the Supreme Court ruled in favour of the popular meaning by asking the question “what
would be the meaning which persons dealing with coal and consumers purchasing it as fuel would give to
that word”. On this test, coal was held to include charcoal and not restricted to coal obtained as a mineral.
(In interpreting items in statutes like the Sales Tax resort should be had not to the scientific or technical
meaning of the terms used but to their popular meaning or the meaning attached them by those dealing
in them, that is to say, in their commercial sense. Viewed from this angle both a merchant dealing
in coal and a consumer wanting to purchase it would regard coal not in its geological sense but in
the sense as ordinarily understood and would include 'charcoal in the term 'coal'.)
Respondent argued that charcoal was coal and should be taxed at 2% rate according to the said provision
whereas tax authorities were arguing that charcoal was not coal and should be taxed at 4%
Under the Entries.' 'coal' as well as 'firewood' were taxed at 2%. It could not have been intended
to tax charcoal alone at 4%.

In contrast, it was said that in the Colliery Control Order( law for prohibiting or limiting the production of
coal as per government order), the word ‘coal’ will be understood in its technical or scientific sense and
will be interpreted as a mineral product, therefore not including charcoal. The Court held that the natural
and ordinary meaning of the word ‘coal’ would be coal used as fuel in the context of the Sales Tax Act
and coal as a mineral product in the context of the Colliery Control Order.

Rules to be followed in Literal Rule of interpretation

EJUSDEM GENERIS
 The term literally translates to ‘of the same kind’.
 If the law lists specific classes of persons or things, and then refers to them in general, the general
statement or words only apply to the same kind of persons or things specifically listed.

16
 The rule is that where the particular words have common characteristics (i.e., they form a class), and
the general word that follows should be construed as referring to that particular class.
 This rule applies in situations wherein there is a common or general word, after a series of specific
words. The specific words act as a genus for interpretation of the general word.
 Examples:
– Under article 24 of the Constitution, “no child shall be employed to work in any factory or
mine, or engage in any other hazardous employment”. The rule of ejusdem generis will apply
here, since there is a valid genus.
– In the interpretation of the phrase “theatre or any other places of public announcement”, the
rule of ejusdem generis will not apply since there is no valid genus.
– The expression ejusdem generis signifies a principle of construction whereby words in a statute
which are otherwise wide but are associated in the text with more limited words, are by
implication given a restricted operation.
– The doctrine is an attempt to reconcile an incompatibility between specific and general words in
view of the other rules of construction that all words in a statute are to be given due effect and
legislature doesn’t use superfluous words.
– The rule accomplishes the purpose of giving effect to both particular words and general words by
treating the particular words as indicating the class ( or becomes a genus that is to say have
similar characteristics) and the general words as extending the provision of the statute to
everything included in that class though not specifically named by a particular word.

 State of Bombay v. Ali Gulshan.

– This case involved the interpretation of section 6(4)(a) of the Bombay Land Requisition Act,
1948, under which, “the state government may requisition (an official order laying claims to use
property or materials), for the purpose of state or any other public purpose…”. The general
phrase here, was ‘public purpose’. It was contended that under the provision, the Appellant was
entitled to requisition premises for housing a member of a foreign consulate.
– The Supreme Court held that the High Court was in error in applying the ejusdem generis rule
because the general expression of ‘any other public purpose’, follows only a single expression
‘for the purpose of the state’, which is not a distinct genus. In the absence of a distinct genus,
there is no application of the ejusdem generis rule.

 Lilavati Bai v. Bombay State.

– In this case, the petitioner was a widow of a tenant of a certain premise, which she had vacated.
Finding the premises vacant, the respondent requisitioned it under section 6(4)(a) of the Bombay
Land Requisition Act, 1948 for the public purpose of housing a government servant.
– One of the explanations to the sub-section stated that there would be deemed to be a vacancy
when the tenant ceases to be in occupation upon termination of his tenancy, eviction,
assignment or transfer in any other manner of his interest in his premises or otherwise.
– On looking at the intent of the provision, it is evident that they had the right to take over the
property.
– Legislature intended to give it the widest possible amplitude. Hence, the rule of ejusdem generis
does not apply.
– Application of the rule is presumptive ( that is treated sufficient for proving intention unless
treated otherwise) and not pre- emptory (to take action in order to prevent something from
happening).
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 Calcutta Municipal Corporation v. East India Company Hotels Ltd. (1994).
– There were three restaurants in a hotel, and there used to be occasional musical and dance shows.
– Section 443 of the Calcutta Municipal Corporation Act, pertaining to obtainment of license, the
terms “theatre, circus, cinema house, dancing hall” were followed by the expression “other
similar placed of public resort, recreation or amusement”. The intention and purpose of the
provision were very clear – there was no ambiguity.
– The question was whether license was required for organising music and dance shows since the
primary purpose of the establishment was to serve as a hotel.
– On appeal, the Supreme Court held that it was not necessary for the HC to rely on the rule of
ejusdem generis. The provisions of section 443 were clear and unambiguous; there was no
occasion to call into consideration the said rule. The question then was whether the activity could
bring the restaurants within the meaning of ‘dancing halls’. The Court found that the restaurants
in the hotel had dance floors, for the guests’ enjoyment. The entertainment, further, was provided
by music (including vocal music). At relevant times, cabaret shows were also performed at the
restaurant to entertain the guests.
– Hence, the Court held that the establishment fell within the ambit of a ‘dancing hall’, which
required a license under section 443 to operate. Simply because the recreation in the nature of
dancing was provided along with a posh dinner, would not make it different from a dancing
hall where drink and eatables were invariably provided.
– Therefore, the Court held that restaurants run by the hotel were places similar to dancing halls
and were bound by section 443 of the Act.

CASUS OMISSUS

 The literal translation of ‘casus omissus’ is ‘cases of omission’.

 Omission in a statute cannot be supplied by construction. You cannot legislate, unless the legislature
provide for it. It is linked with the concept of judicial overreach. Even if there is a defect or omission
in the words used by the Legislature, the court cannot correct the deficiencies, especially when a
literal reading produces an intelligible result.
 A matter which should have been, but has not been provided for in a statute cannot be supplied by
courts, as to do so will be legislation and not construction.
 However, where the lacuna in the language is of such nature that unless the omitted word is supplied,
the statute cannot operate, or the true intention of the legislature cannot be established , the courts
have inserted the missing word in the language to ensure that the law is not turned to nullity. This
relates to circumstances where a court can supply a clearly unintended omission by the legislature in
drafting a provision. This issue arises quite frequently and in varying circumstances.
 Lord Denning observed that “where a defect appears, a judge cannot simply fold hands and blame the
draftsmen. Rather, he must set to work on the constructive task of finding the intention of the
Parliament and then he must supplement the written words so as to give force and life to the intention
of the legislature.”

Bangalore Water Supply case

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ec.2 (j) of the Industrial Disputes Act, 1947 defines ‘industry’ as any business, trade, undertaking,
manufacture, or calling of employers and includes any calling, service, employment, handicraft or
industrial occupation or avocation of workmen”.

An industry exists only when there is relationship between employers and employees, the former is
engaged in business, trade, undertaking, manufacture or calling of employers and the latter is engaged in
the calling, service, employment, handicraft or industrial occupation and avocation.

Sec. 2(j) gives the definition of industry, which was elaborated upon by the Supreme Court in
the Bangalore Water Supply and Sewerage Board v. R. Rajappa[i]. The term industry has been given a
wide scope and the judgment overruled several earlier decisions. The court held-

1. Any activity will be industry if it fulfills the ‘triple test’, as under:

 Systematic and organized activity

 With the cooperation between Employers and employees
 For the production and distribution of good and services whether or not capital has been invested
for this activity.

2. It is immaterial whether or not there is profit motive or whether or not there is capital.

3. If the organization is a trade or business it does not cease to be one because of philanthropy animating
the triple test, cannot be exempted from scope of definition of industry.

4. Dominant nature test – whether there is complex of activities, the test would be predominant nature of
services and integrated nature of departments. All departments integrated with industry will also be
industry.

Though the rule of casus omissus i.e. “what has not been provided for in the statute cannot be supplied
by the Courts” is a strict rule of interpretation there are certain well known exceptions thereto.
Denning- ironing out the creases

-"In Jacob Mathew’s case, this Court clearly held that in criminal law medical professionals are placed
on a pedestal different from ordinary mortals. It was further held that to prosecute the medical
professionals for negligence under criminal law, something more than mere negligence had to be
proved. Medical professionals deal with patients and they are expected to make the best decisions in the
circumstances of the case. Sometimes, the decision may not be correct, and that would not mean that
the medical professional is guilty of criminal negligence. Such a medical professional may be liable to
pay damages but unless negligence of a high order is shown the medical professionals should not be
dragged into criminal proceedings. That is why in Jacob Mathew's case (supra)this Court held that in
case of criminal negligence against a medical professional it must be shown that the accused did
something or failed to do something in the given facts and circumstances of the case which no medical
professional in his ordinary senses and prudence would have done or failed to do."
The bench thus allowed the appeal and observed that in such cases an independent opinion of a medical
professional should be obtained.

Facts

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In a landmark judgment of the Supreme Court of India the judgment stipulates the guidelines to be
followed before launching a prosecution against a doctor for negligence. On February 15, 1995, the
informant's father, was admitted as a patient in the private ward of a hospital. On February 22, 1995 at
about 11 p.m., the patient felt difficulty in breathing. The complainant's elder brother, who was present in
the room contacted the duty nurse, who in turn called a doctor to attend to the patient. No doctor turned
up for 20-25 minutes. Then doctors came to the room of the patient. An oxygen cylinder was brought and
connected to the mouth of the patient, but the breathing problem increased further. The patient tried to get
up, but the medical staff asked him to remain in the bed. The oxygen cylinder was found to be empty.
There was no other gas cylinder available in the room. Son of the patient went to the adjoining room and
brought a gas cylinder. However, there was no arrangement to make the gas cylinder functional and
meanwhile, 5-7 minutes were wasted. By this time, another doctor came and declared that the patient was
dead. The complaint as per records reads as follows. “The death of my father has occurred due to the
carelessness of doctors and nurses and nonavailability of oxygen cylinder and the empty cylinder was
fixed on the mouth of my father and his breathing was totally stopped hence my father died. I sent the
dead body of my father to my village for cremation and for information I have come to you. Suitable
action be done.”[ 1]

Dadi Jagannadham v. Jammulu Ramulu overruled Nirmala Industries (i.e., upheld the position in
Basavanatappa). Although accepting that the court cannot make up deficiencies left by the legislature, it
observed that the court must try to harmonise the conflicting provisions.

RULES TO BE KEPT IN MIND BY JUDGES WHILE ADDING WORDS TO A STATUTE

1. The legislature is always right, so, there is no presumption that a casus omissus exists. This is to avoid
the negative effects of judicial activism. In the garb of interpretation, judges must not legislate by
adding / altering terms.
2. The intention of the words is sufficiently portrayed through whatever the legislature has legislated.
3. It is presumed that the legislature does not waste any words and the courts should try to achieve the
intention with the given words.
4. However, where the alternative lies between either supplying by implication, words that appear to
have been accidentally omitted, or adopting a construction which deprives certain existing words of
all meaning, it is permissible to supply words [Surjit Singh Kalra v. Union of India].
5. Wherever the court is supplying any words, it should be possible to state with certainty that these, or
similar words, would have been inserted by the draftsmen and approved by the Parliament, had their
attention been drawn to the omission before the Bill was passed [Union of India v. Hansoli Devi].

 A Verbis Legis Non-Est Recedendum ( from the words of the law there must be no departure)

Explanation
The object of the maxim depends on the interpretation of statutes which is determine the intention of the
legislature conveyed expressly or impliedly in the language used. The court interprets the legislature
whenever a dispute arises before the court. Since the will of the legislature is generally expressed in the
form of statutes, the prime concern of the court is to find out the intentions of the legislature in the
language used by the legislature in the statute. It is the duty of the court not to modify the language of the
Act and if such meaning is clear and unambiguous, the effect should be given to the provisions of a
statute. The concept behind such a principle is that the legislature, being the supreme law-making body
20
must know what it intends in the words of the statute. The literal interpretation has been called the safest
rule because the legislature’s intention can be deduced only from the language through which it has
expressed itself.
Case Laws
In Hardeep Singh Vs. State of Punjab and Ors., the Supreme Court held that “It is a settled principle of
law that an interpretation which leads to the conclusion that a word used by the legislature is redundant,
should be avoided as the presumption is that the legislature has deliberately and consciously used the
words for carrying out the purpose of the Act. The legal maxim “A Verbis Legis Non-Est Recedendum”
which means, from the words of the law, there must be no departure has to be kept in mind.”

The Income Tax Appellate Tribunal ITAT Pune referring to the maxim A verb is legis non-est
referendum in Shri Lunawat Jayant Maniklal Vs. Dy. C.i.T. held that the meaning of the maxim is
that a literal construction of law is not to be departed from. The general principle for the interpretation of
the taxing statute is that the statute has to be strictly construed. The well-established rule in the familiar
words of LORD WENSLEYDALE, reaffirmed by LORD HALSBURY and LORD SIMONDS, means;
“The subject is not to be taxed without clear words for that purpose; and also, that every Act of
Parliament must be read according to the natural construction of its words.

The Supreme Court in Rohitash Kumar and ors. Vs. Om Prakash Sharma (2013) held that “The legal
maxim a verb is legis non-est referendum means, “From the words of the law, there must be no
departure”. A section is to be interpreted by reading all of its parts together, and it is not permissible, to
omit any part thereof. The Court cannot proceed with the assumption that the legislature while enacting
the Statute has committed a mistake; it must proceed on the footing that the legislature intended what it
has said; even if there is some defect in the phraseology used by it in framing the statute, and it is not
open to the court to add and amend, or by construction, make up for the deficiencies, which have been left
in the Act. The Court can only iron out the creases but while doing so, it must not alter the fabric, of
which an Act is woven. The Court, while interpreting statutory provisions, cannot add words to a Statute,
or read words into it which are not part of it, especially when a literal reading of the same, produces an
intelligible result.”

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

 This maxim, which is broader than the principle of ejusdem generis, provides that the meaning of an
ambiguous word may be determined by looking into the company the word keeps.
 ‘Noscitur’ means ‘to know’ and ‘ a sociis’ means ‘association’.

21
 Meaning of doubtful words may be ascertained by reference to the meaning of words associated with
it.
 Questionable meaning of words or doubtful words can be derived from its association with other
words within the context of the phrase.
 If multiple words having similar meaning are put together, they are to be understood in their
collective.
 The rule means that when two or more words susceptible to analogous meanings, are clubbed
together, they are understood to be used in their cognate sense (i.e., coming from similar origin).
 Note : It cannot be used when it is clear that a word with a wider meaning is deliberately used in order
to increase the scope by the legislature (Mazdoor Sabha Case).
 For instance, in maritime law, there is a concept of ‘vessels’. The Maritime Act defines vessels, cargo,
bots, ships and ‘xyz’. How is this term ‘xyz’ to be interpreted? The common denominator in all these
terms is a voyage in water. So if meaning is to be given to ‘xyz’, it will be figured out by looking at
its associations, i.e., the company it keeps.
 Applying the noscitur rule, the court looks at:
– Analogous words (comparable meaning).
– Common origin of the word.
– Company or association the word keeps.
– Context of the word.
However, applying the rule of ejusdem generis, the court only looks at the surrounding words,
without looking at the context or the legislative intent.

 State of Assam v. R. Muhammad.

– In this case, the words ‘post’ and ‘posting’ were being interpreted.
– It is understood that posting can have two connotations – posting (transfer) of an official from
one place to another, and appointment to a particular post.
– Article 233(1) of the Constitution of India provides that the appointment, posting and promotion
of judges shall be made by the Governor of the state.
– In this context, the Court held that ‘posting’ meant appointment in the latter connotation, and not
transfer. The power to transfer was vested with the High Court, and could not be exercised by the
Governor.

 Relying on the above, in the case of Commissioner of Income Tax v. Bharti cellular it was held
that term ‘technical servies’ used in Section 194J of the Income Tax Act is unclear. The word
technical would take colour from the words managerial & consultancy between which it is
sandwiched. These terms ‘managerial services’ & ‘consultancy services’ necessarily involve a
human intervention . So applying noscitur a sociis the word ‘technical’ would also have to be
construed as involving a human element. Thus, interconnection & port access services rendered by
the assessee do not involve any human interface & therefore cannot be regarded as technical services
u/s 194J of the Income Tax Act.
 Coupling of word together shows that they are to be understood in the same sense and where the
meaning of particular word is doubtful or obscure or where a particular expression when taken
singly is inoperative, its intention is to be ascertained by looking at adjoining words or at
expressions occurring at other parts of the same instrument.

22
  If one could pick out a single word or phrase & finding it perfectly clear in itself, refuse to check its
apparent meaning, in the light thrown upon it by the context or by other provisions then the principle
of noscitur a sociis would be utterly meaningless. This principle requires that a word or phrase or
even a whole provision which standing alone has a clear meaning , must be given quite a different
meaning when viewed in the light of its context.

 The apex court in Pradeep Agarbatti with reference to the Punjab Sales Tax Act held that the word,
“perfumery’’ means such articles as used in cosmetics and toilet goods viz, sprays, etc but does not
include ‘Dhoop’ and ‘Agarbatti’. This is because in Schedule ‘A’ Entry 16 of Punjab Sales Tax Act
reads as “cosmetics, perfumery & toilet goods excluding toothpaste , tooth powder kumkum &
soap.”

 Note : Noscitur a sociis cannot prevail in case where it is clear that the wider words have been
deliberately used in order to make the scope of the defined word correspondingly wider. It can also
be applied where the meaning of the words of wider meaning import is doubtful; but, where the
object of the Legislature in using wider words is clear and free from ambiguity, the rule of
construction cannot be applied.

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GOLDEN RULE OF INTERPRETATION

 It is an extension of the literal rule and was expounded in the case of Maltison v. Hart.
 It is used when grammatical interpretation leads to absurdity. A pre-requisite of the golden rule is
application of the literal rule. If such application leads to absurdity, the golden rule will be applied.
[It is an absurdity when the meaning culled out using the literal interpretation is such that it can, in no
circumstance, be the intention of the legislature.]
 This rule allows a judge to depart from the words’ normal meaning in order to avoid an absurdity
from the results. When the absurdity arises, the court can divert only to the extent so that the effect of
the absurdity is no more.
 The rule tries to avoid absurd consequences arising from the literal interpretation. It aims at giving
effect to the spirit of the law rather than just mechanical or grammatical meaning.
 Only when grammatical construction cannot be given without a doubt, the golden rule applies.
 Interpretation is of two kinds – grammatical and logical. Grammatical interpretation is arrived at by
reference to the laws of speech to the words used in the statute; in other words, it regards only the
verbal expression of the legislature. Logical interpretation gives effect to the intention of the
legislature by taking into account other circumstances permissible according to the rules settled in this
behalf. ‘Proper construction’ is not satisfied by taking the words as if they were self-contained
phrases. So considered, the words do not yield the meaning of a statute.[viii]
 According to Gray, grammatical interpretation is the application to a statute of the laws of speech;
logical interpretation calls for the comparison of the statute with other statutes and with the whole
system of law, and for the consideration of the time and circumstances in which the statute was
passed. It is the duty of the judicature to ascertain the true legal meaning of the words used by the
legislature.

 A statute is the will of the legislature and the fundamental rule of interpretation, to which all others
are subordinate, and that a statute is to be expounded, according to the intent of them that made
it. [ix] The object of interpretation is to find out the intention of the legislature.
The primary and foremost task of a court in interpreting a statute is to ascertain the intention of
the legislature, actual or imputed. The words of the statute are to be construed so as to ascertain the
mind of the legislature from the natural and grammatical meaning of the words which it has used. ‘The
essence of the Law’, according to Salmond:[x]
24
Lies in its spirit, nor in its letter, for the letter is significant only as being the external manifestation of the
intention that underlies it. Nevertheless, in all ordinary cases, the courts must be content to accept
the litera legis as the exclusive and conclusive evidence of the sententia legis. They must, in general,
take it absolutely for granted that the legislature has said what it meant, and meant what it has said.
Ita scriptumest is the first principal of interpretation. Judges are not at liberty to add to or take from or
modify the letter of the law simply because they have reason to believe that the true sententia legis is not
completely or correctly expressed by it. It is to say, in all ordinary case grammatical interpretation is the
sole form allowable.
Parke B in Becke v. Smith[xi] formulated the following well-known rule for the interpretation of statutes:
If the precise words used are plain and unambiguous, in our judgment, we are bound to construe them in
their ordinary sense, even though it does lead, in our view of the case, to an absurdity or manifest
injustice. Words may be modified or varied where their import is doubtful or obscure, but we assume the
function of legislators when we depart from, the ordinary meaning of the precise words used merely
because we see, or fancy we see, an absurdity or manifest injustice from adherence to their literal
meaning.

 Lee v. Knapp. The law was that the driver causing an accident shall stop after the accident. Herein, a
driver stopped for a moment after the accident and then moved away. The result of the application of
the literal rule would be that the driver had complied with the law. However, that could not have been
the intention of the legislature. It was thus held, applying the golden rule, that requirement of the law
had not been followed by the driver as he had not stopped for a reasonable period, requiring interested
persons to make necessary inquiries from him about the cause of the accident.

 Grey v. Pearson. The Lord Wensleydale rule was expounded in this case. It posited that the
grammatical and ordinary sense of the words is to be adhered to unless such adherence would lead to
some absurdity or repugnance or inconsistency with the rest of the instrument, in which case the
grammatical and ordinary sense of the words may be modified so as to avoid the absurdity and the
inconsistency, but no farther.

 Adler v. George. This case dealt with section 3 of the Official Secrets Act, 1920. Under it, it was an
offence to obstruct forces in the vicinity of a prohibited place. Adler was arrested for obstructing
forces whilst in a prohibited area. Under the literal rule, Adler was not technically ‘in the vicinity of
the area’, he was in the area itself and so was not infringing the terms of the Act. The golden rule was
applied to extend the meaning of ‘vicinity’ and avoid the possible absurd outcome. Thus, Adler was
held liable.

 Re Sigsworth. A son murdered his mother. The mother had not made a will. Under the
Administration of Justice Act, 1925, if someone dies without a will, the estate would to the next of
kin, who in this case was the son. There was no ambiguity in the words of the Act, but the Code was
not prepared with the intention to let the son who had murdered his mother benefit from his
crime. It was held that the literal rule should not apply here and the golden rule should be used to
prevent the repugnant situation.

 R. v. Allen. The defendant was charged with bigamy under Section 57 of the Offences Against the
Person Act 1861, which stated ‘whosoever being married shall marry any other person during the
lifetime of the former husband or wife is guilty of an offence’. Under the literal rule, bigamy would
25
 be impossible because civil courts do not recognise second marriages . Thus, no person already
married could technically be ‘married’ to a second person during the lifetime of the first spouse. The
golden rule was applied to determine that the word ‘marry’ should be seen as ‘to go through
ceremony’ and the conviction was upheld.

 Advantages of using the golden rule:

– It respects the words of the parliament, except in limited situations. It provides an escape from
situations where there is a problem with using the literal meaning.
– It allows the judge to choose the most sensible meaning where there is more than one meaning
to the words in an Act or Statute.
– It can also provide reasonable decisions in cases where the literal rule would lead to repugnant
situations, by importing wider meaning to the terms of a statute [Example: Re Sigsworth].
– The main advantage of the golden rule is that drafting errors in statutes can be corrected
immediately. [Example: In R. v. Allen, the loopholes were closed and the decision was in line
with the Parliament’s intentions and it gave a more just outcome].

 Disadvantages of using the golden rule:

– There are no real guidelines as to when it can be used.
– What seems to be absurd to one judge may not be to another; a case’s outcome is dependent upon
the judge, rather than the law.
– It is very limited in it is use, so it is only used on rare occasions.
– It is not always possible to predict when courts will use the golden rule, making it hard for
lawyers and people who are advising their clients.
– The golden rule won’t help if there is no absurdity in the statute. [Example: In London and
North Eastern Railway v Berriman, the widow couldn’t get compensation because the wording of
the statute didn’t allow for this circumstance].
– Judges can technically change the law by changing the meaning of words in statutes. In doing so,
they can potentially infringe the separation of powers between legal and legislature.

HEYDON’S PRINCIPLE / MISCHIEF RULE

 The purpose of this rule is to suppresses the mischief and advance the remedy.
 The rule was developed in the Heydon’s case during the reign of Henry VIII. It seeks to look into
the purpose with which the rule was developed. The case laid down four principles which were to
be considered when applying the mischief rule:
– What was the law before making the Act? Look at previous versions of the Act in question.
– What was the mischief or defect for which the law did not provide? Why was a new version of
the Act required?
– What remedy has the Parliament resolved and appointed to cure?
– What are the true reasons (rationale) for the remedy?
 When the language used in a statute is capable of two meanings and the rule of literal interpretation
fails, we resort to the mischief rule.

 Smith v. Hughes. Under the Street Offences Act, 1959, loitering or soliciting in public places by
prostitutes was made an offence. Prostitutes were soliciting customers from their balconies, which
were their private property. The law only prohibited such solicitation in public spaces. Under the
26
 literal rule, their conduct would be permitted. However, it was understood under the mischief rule that
the object was to curb such activities and they were held liable for the same.

 Royal College of Nursing v. DHSS. The Royal College of Nursing brought an action challenging the
legality of the involvement of nurses in carrying out abortions. The Offences Against Persons Act,
1861 (which came at a time when abortion was not legalised) made it an offence to carry out
abortions.
The Abortion Act, 1967 made it an absolute defence for a medically registered practitioner to carry
out abortions, provided certain conditions were satisfied. The question was whether nurses would be
considered to be ‘medically registered practitioners’. It was held that it was legal for nurses to carry
out abortions as the purpose was to eliminate backstreet abortions and protect the health of
women. Nurses and doctors, thus, were considered to be ‘medically registered practitioners’.

 Bengal Immunity Co. v. State of Bihar. Article 286 of the Constitution of India deals with inter-
state tax. When goods are supplied from one state to another, they cannot be taxed. This was done to
avoid the mischief of multiple taxation. The appellant company is an incorporated company
carrying on manufacturing and selling various vaccines, medicines and biological products. Its
factories and labs were headquartered at Kolkata. It was registered as a dealer under the Bengal
Finances Sales Tax Act. Its product has extensive sales across India and elsewhere. The orders were
accepted in Kolkata and dispatched from there. The appellant company did not have any agent, broker
or subsidiary company in Bihar. The Assistant Superintendent of Commercial Taxes, Bihar wrote to
the appellant company and asked it to get registered under the Bihar Sales Tax Act and hence pay
sales tax duty there as well.

The question was whether the tax threatened to be levied on sales made by the appellant company by
delivery in the manner mentioned in the petition is leviable by the state of Bihar. It was decided that
the Bihar Tax Act, insofar as it purports to tax sales or purchases that take place in the course of inter-
state trade or commerce, was unconstitutional, illegal and void. When construction was given to
article 286 of the Constitution, it was found that it was enacted to prevent multiple and arbitrary
taxes by states; no law of the state shall authorise the imposition of tax on the sale or purchase of
goods. Bihar lacked the authority to impose such tax but was doing so anyway.

 Advantages of using the mischief rule:

1. The Law Commission sees it as a far more satisfactory way of interpreting Acts as opposed to the
golden or literal rules.
2. It usually avoids unjust or absurd results in sentencing.
3. It closes loopholes.
4. It allows the law to develop and adapt to changing needs [Example: Royal College of Nursing v.
DHSS].

 Disadvantages of using the mischief rule:

1. It is seen to be out of date as it has been in use since the 16th century, when common law was the
primary source of law and parliamentary supremacy (in England) was not established.
2. It gives too much power to the unelected judiciary which may be argued to be undemocratic.

27
 3. It creates a crime after the commission of the activity, violating the principle of rule of law
[Examples: Smith v. Hughes and Elliot v. Grey].
4. It gives judges a law-making role, infringing the doctrine of separation of powers; judges can
bring their own views, senses of morality and prejudices to a case [Examples: Smith v. Hughes
and DPP v. Bull].

HARMONIOUS CONSTRUCTION
 While all the previous rules were of English origin, this rule was developed by Indian
jurisprudence.
 It is a well-settled rule of construction that the provision of a statute should be so construed as to
accord with the object of the enactment.
 The object of harmonious construction is to avoid conflict between two enacting provisions of a
statute as far as possible and to construe the provision in a way that they harmonise.
British Airways v Union Of India (2002)
 Venkatramana Devaru v. State of Madras.
– Article 25 recognises the right to freedom. Article 25(2)(b) accords to the state a power to
make legislation, in the interests of social welfare and reform, throwing open Hindu religious
institutions of public character to all classes and sections of Hindus.
– Article 26 accords to every religious denomination the right, among other things, to establish and
maintain institutions for religious purposes and to manage their own affairs in matters of religion.
– The appellants were trustees of temple, and belonged to the Gowda Saraswath Brahmin
community. In 1950, a decree was passed by a civil court declaring the temple to be an ancient
institution belonging to the Gowda Brahmins. Moreover, general control and management of the
temple’s religious and secular affairs was given to the members of the community.
– The Madras Legislature passed the Madras Temple Entry Act of 1947, which, at section 3(1)
stated that “notwithstanding any law, custom or usage to the contrary, persons belonging to
excluded classes shall be entitled to any enter any Hindu temple and offer worship therein as
Hindus”.
– The Supreme Court examined the validity of this Act, which was introduced with a view of
removing the disabilities imposed by custom or usage on certain classes of Hindus against entry
into a Hindu temple.
– Applying the harmonious rule of construction, it was held that full effect can be given to Article
26(b) in all matters of religion, however, as regards to entry of excluded classes into the temple
for worship, the rights declared under Article 25(2)(b) shall prevail. Hence, Article 26(b) must
be read subject to Article 25(2)(b). The right protected by Article 25(2)(b) is a right to enter
into a temple for purposes of worship and hence, should be construed liberally in the favour
and welfare of public.
– It was observed that when there is an enactment, two provisions which cannot be reconciled with
each other, they should be so interpreted, that if possible, effect should be given to both.
– According to this rule, a statute should be read as a whole, and one provision of the Act
should be construed with reference to other provisions in the same Act so as to make a
consistent enactment of the whole statute. Such an interpretation is used in avoiding
inconsistency or repugnancy, wither within a section or in other parts of a statute.

 M.S.M. Sharma v. Krishna Sinha.

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 – This case pertained to Article 194(3), i.e., Parliamentary privileges.
– The petitioner and editor of a newspaper was asked to show cause as to why he should not be
punished for a breach of privilege of House under Article 194(3) for publishing a speech made in
State Legislative Assembly without expunging certain remarks as directed by the speaker.
– In the petition under Article 32 of the Constitution, he argued that the proposed action against
him would be contrary to the freedom of speech and expression guaranteed under Article 19(1)(a)
of the Constitution.
– The SC held that Article 19(1)(a) and 194(3) had to be harmoniously interpreted. To give effect
to both of these provisions, it was necessary to hold that the fundamental right of speech and
expression under Article 19(1)(a) was subject to privileges of Houses guaranteed by Article
194(3).
– The provisions of Article 19(1)(a), which are general, must yield to Article 194(3), which are
special. The petition was, therefore, dismissed.

 Sirsilk Ltd. v. Govt. of Andhra Pradesh.

– This case pertained to Sections 17(1), 17(2) and 18 of the Industrial Disputes Act.
– Section 17(1) states that every award shall (mandatory provision) within a period of 30 days from
the date of its receipt by the appropriate government, be published in such a manner as the
appropriate government thinks fit.
– Section 17(2) states that an award published under 17(1) shall be final and shall not be called in
question by any court in any manner.
– Section 18 provides that a settlement arrived at by agreement between the employer and the
workmen otherwise than in the course of conciliation proceedings shall (mandatory provision) be
binding on the parties to the agreement.
– In this case, a settlement was reached after the award was passed by the Tribunal and the conflict
arose. The question was whether the Government should publish the award or not.
– The Court applied the rule of harmonious construction and provided that even though section
17 made it mandatory for the Government to publish the award, the present matter was a special
circumstance, not covered under the provisions of the Act. The binding nature of section 18
would now take precedence.
– The Court reasoned that this was because the award was no longer operative and rendered
infructuous because there did not exist a dispute which needed an award anymore and an
amicable settlement by the parties would indeed be better. Therefore, the Court tried to
harmonise, in the abovementioned manner, the two provisions holding that the publication of the
award must be withheld.

Remington Rand of India v. The Workmen

- Section 17(1) of the Industrial Disputes Act.
- The issue was that the period of 30 days was mandatory for publication of an industrial award.
And whether if the award was published beyond the period fixed in the Act, it would take effect?
- What is the problem or lacuna that could be identified
- Keeping the above principles in mind, we cannot but hold that a provision as to time in s. 17(1) is
merely directory and not mandatory. Section 17(1) makes it obligatory on the Government to
publish the award. The limit of time has been fixed as showing that the publication of the award ought
not to be held up.

29
- But the fixation of the period of 30 days mentioned therein does not mean that the publication
beyond that time will render the award invalid. It is not difficult to think of circumstances when the
publication of the award within thirty days may not be possible.
For instance, there may be a strike in the press or there may be any other good and sufficient cause by
reason of which the publication could not be made within thirty days. If we were to hold that the award
would therefore be rendered invalid, it would be attaching undue importance to a provision not in the
mind of the legislature.

Reasonable/ equitable/BENEFICIAL CONSTRUCTION

 A beneficial statute is a class of statutes which seeks to confer benefit on individuals and classes of
persons by relieving them of onerous obligation under contracts entered into by them (they get this
statement from labour legislations) or which tend to protect persons against oppressive acts from
individuals with whom they stand in certain relations.
 The established principle in the construction of such statutes is that there should not be any narrow
interpretation. Construction of beneficial statutes should not be done in a narrow sense. The court
should attempt to be generous towards the persons on whom benefit should be conferred. Eg
workmen compensation act
 When a statute is interpreted liberally to give the widest possible meaning to it, it is called ‘beneficent
construction’. Beneficial construction is an interpretation to secure remedy to the victim who is
unjustly denied of relief. 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.
Although beneficial legislations do receive liberal interpretation, the courts try to remain within the
scheme and not extend the benefit to those not covered under the scheme.
 This rule can only be resorted to without doing any violence to the language of the statute.
 In case of any exception, when the implementation of the beneficial act is restricted by the court, it
has to be construed narrowly so as to not unduly expand the area of scope of the exception.
 There are different kinds of legislation which receive beneficial construction. Generally, laws which
promote general welfare and deal with urgent social demands receive such construction.
 In case of legislations which may have two different interpretations, the interpretation of the
legislation which favours the class of persons which are protected via this legislation is preferred.
 The interpretation of socio-economic legislations, which are aimed at social or economic policy
changes, should not be narrow.

 B. Shah v. Presiding Officer, Labour Court. This case was in relation to section 5 of the Maternity
Benefit Act, with respect to the amount of wages to be given to a mother [Under the Act, wages are to
be paid to an expecting mother for the days she is on leave 6 months before and after delivery]. The
question was whether Sundays were to be accounted for in the computation of wages. It was held,
giving a broad construction to the Act, that Sundays would be taken into account in the computation
of wages to be paid.

 Union of India v. Prabhakaran Vijaykumar. This case pertained to section 123 of the Railways
Act, 1989. It was provided that if an ‘untoward accident’ happens and a passenger inside a train is

30
 injured due to some fault of the railways, the passenger must be compensated. Here, a man had
fallen while boarding the drain and died. The question was whether an accident while boarding the
train would fall within the ambit of the term ‘untoward accident’ (accident while boarding would
be due to the fault of the passenger, and not the railways). Giving a liberal construction, it was held
that since the ‘benefit’ is to give compensation, it would be considered an ‘untoward accident’.

 Amritham Kudumbah v. S. Kudumbah.

– Herein, section 8(3) of the Hindu Minority and Guardianship Act was in question.
– The child in this case was the owner of some property given to him by his grandfather, but
because of his minority, his father was made the trustee of that property till the child
attained majority.
– A clause was incorporated in the deed, which stated that under no circumstances would the father
sell the property. However, if there arose any legal necessity to sell that property, the father
would have to take the permission of the court.
– The legal necessity was meant to be for the benefit of the minor child.
– The father sold the property without there being any legal necessity, and without the court’s
permission.
– The question was whether the child, after attaining majority, could declare this sale void .
The Court held that section 8(3) was to be construed liberally, and the child could not be denied
the right to declare the sale void as the provision of the said legislation was for the benefit of the
minor child.

PURPOSIVE CONSTRUCTION
Workmen of Dimakuchi Tea Estate v. Management of Dimakuchi Tea Estate, the Hon’ble Supreme
Court of India held that the words of a statute, whenever there is a doubt about their meaning, have to be
understood in the sense in which they best harmonise with the subject of the enactment and the object
which the legislature has in its view. It was stated that “the meaning of the statute is not found in a strict
grammatical or etymological propriety of language, nor even in its popular use, as in the subject or in the
occasion on which they are used, and the object to be attained.” It has been recognised by the Supreme
Court of India on multiple occasions that whenever two interpretations are feasible the court will prefer
such interpretation which advances the remedy and suppresses the mischief as it was envisioned by the
legislature. It has been provided that the Court should adopt an object-oriented approach keeping in
mind the principle that legislative futility is to be ruled out so long as interpretative possibility
permits. Thus, it can be inferred that to the extent to which there is interpretive flexibility, the Court must
seek to give such an interpretation to the statute which helps in the fulfilment of its ultimate
objective and thereby prevents the same from becoming futile.
The purposive approach to statutory interpretation is used in the European Court of Justice. The
literal rule would be of little use in the European Courts since there are several languages in operation and
translation is not an exact science. Domestic judges are required to apply the Purposive
approach whenever applying a piece of EU law.

.
Cautionary note: purposive construction need not to be applied where a relevant act has been
amended from time to time on the basis of fresh needs and has not remained static. In such situations
literal rule of interpretation has to be applied.

31
 All India Reporter Karamchari Sangh v. All India Reporter Ltd. (1988).
– The question that arose for consideration in this case whether law reports are ‘newspapers’
under the Working Journalists and Other Newspapers Employees (Conditions of Service) and
Miscellaneous Provisions Act, 1955. Further, to that end, whether judgements of the Supreme
Court and High Courts were ‘news’.
– Employees of newspaper establishments had been given certain benefits under the
aforementioned Act. A second question arose as to whether the employees of the respondents
engaged in the production or publication of the said law reports are entitled to benefits
conferred upon the employees of newspaper establishments by the Act.
– The object of the Act was to regulate certain conditions of employees and working journalists and
other employees employed in the newspaper establishments.
– ‘Newspaper’ means any printed periodical work containing public news or comments on
public news and includes such other classes of printed periodical work as may be notified by the
central government from time to time.
– ‘Newspaper employee’ is defined as any working journalist and includes any other person
employed to do any work in or in relation to any newspaper establishment.
– ‘Newspaper establishment’ is defined as an establishment under the control of any person or body
of persons, whether incorporated or not for the production or publication of one or more
newspapers or for conducting any news agency or syndicate.
– A ‘working journalist’ is one whose principal avocation is that of a journalist and who is
employed as such, either whole-time or part-time, in relation to newspaper establishments and
does not include any such person who is employed in any managerial or administrative capacity.
– It was urged before the High Court that the law reports of the All India Reporter Ltd. did not
constitute ‘newspapers’ under the Act. The High Court accepted this plea. The matter went to the
Supreme Court on special leave.
– The question before the Supreme Court was whether judgements of courts could be considered
‘news’, which was not defined under the Act.
– It was observed that according to the Oxford English Dictionary, ‘news’ means tidings, new
information of recent events or new occurrences as a subject of report or talk. Further,
Article 141 of the Constitution provides that the law declared by the Supreme Court is binding on
it and on all courts within the territory of India.
– The Court held that the law reports being published did constitute ‘new information of recent
events’. It could not be disputed that the decisions were of public importance.

 R. v. Secretary of State of Health (2003).

– In July 1978, the first child was born using the in vitro fertilisation (IVF) technique, where the
egg is fertilised outside the mother’s womb.
– The UK Parliament passed the Human Fertilisation and Embryology Act, 1990 in response to
medical developments in the fertility industry. It prompted a debate regarding the various social,
legal and ethical problems posed by the implications of scientific developments. The Act aimed
to regulate and outlaw certain practices relating to human embryos. However, at the time when
the Act was passed, embryos could only be created by a process of fertilisation with sperm.
– After the Act was passed, a new scientific process, known as ‘cell nucleus replacement’ was
developed. Under CNR, an embryo could be created without fertilising the egg; merely
32
 replacing the nucleus of one egg with another was sufficient. The first instance of the use of this
process was the cloning of Dolly the sheep.
– The Human Fertilisation and Embryology Authority (set up by the Act; it granted the license to
research with regard to embryos), it was claimed, did not have the authority to license the
research with regards to cloning under the terms of the Act.
– Under the Act, an ‘embryo’ was defined as a ‘live human embryo where fertilisation is
complete’. The problem was that embryos created using cloning were not fertilised.
– The House of Lords said that the court’s task within the permissible bounds of interpretation was
to give effect to the Parliament’s purpose. So, the controversial provision should be read in the
context of the statute of the whole and the historical context of the situation at hand. Thus, the
cloned embryos were covered by the Statute, by applying the purposive rule of statutory
interpretation.

Beneficial Construction Purposive Construction

Golden Rule, applied in case of absurdity. Mischief Rule.
Purpose + object + benefit for a particular class. Purpose + Object.
Broader Interpretation, so that justice can be
given to minorities or a class of society.

AIDS TO CONSTRUCTION

INTERNAL AIDS TO CONSTRUCTION

LONG TITLE
 When there is an ambiguity in the interpretation of an enactment, you look at the long title and not the
short title. The object, scope, and purpose of the NI Act and the Trade Dispute Act can be gleamed
from the long title.
 The long title of the Act, however, cannot control the plain words in the body of a Statute; if they
have mutually exclusive and opposite meanings, preference must be given to the enactment and not
the title. If the two are complementary to each other, then the long title can be used for interpretational
purposes.
 Ashwini Kumar Case.
– In this case, the long title of the Supreme Court Advocates Act, 1951 read: “An Act to authorise
the advocates of the Supreme Court to practice as of right in any High Court.”
– The Court recognised that the long title of a statute was an important part of the Act and may be
referred to for the purpose of ascertaining its general scope and for throwing light on its
construction, although it cannot override the specific enactments in a statute.
 Manohar Lal v. State of Punjab.
– In this case, the question of the constitutionality of section 7(1) of the Punjab Trade Employees
Act, 1940 arose.
– Section 7(1) provided that every shop or commercial establishment shall remain closed on a
‘closed day’. The choice of the closed day was to rest with the occupier of a shop or a

33
 commercial establishment and was to be intimated to the prescribed authority, within two months
of from the day on which the Act came into force.
– The appellant herein opened his shop on a closed day and was caught by the authorities.
– He argued that he had a right to work on his closed day, based on the Constitution. He stated that
the provision under section 7(1) violated his right to carry on trade and business guaranteed under
article 19(1)(g) and the restriction imposed on him was not a reasonable restriction for public
welfare under article 19(6).
– The long title of the Act read: “An Act to limit the hours of work of shop assistants and
commercial employees and to make certain regulations concerning their holidays, wages and
terms of service.” The long title referred to a shop which had employees. The Appellant’s shop
was run by him alone (there were no employee).
– The Court held that section 7(1) was clear enough; if it was a close day, the shop had to be closed
– there was an express provision. It was observed that no matter that the long title of the Act
(extracted by the Appellant’s counsel) indicated the main purpose of the enactment, it could not
control the express operative provisions of the Act itself.

PREAMBLE
 The Preamble is expected to express the scope, object and purpose of the Act more comprehensively
than the Long Title. It may recite the ground and cause of making the statute, the evils sought to be
remedied or the doubts which may be intended to be settled, in the best or most satisfactory manner.
 It is a key to open the minds of the makers of the Act and the issues redressed by them in such
enactment.
 However, it is not to influence the meaning otherwise ascribable to the enacting part unless there is a
compelling reason for it.
 If there is a conflict between the enacting provision and the Preamble, the provision will prevail.
 Burrakur Coal Co. v. Union of India.
– Under section 4(1) of the Coal-Bearing Areas (Acquisition and Development) Act, it was
provided that whenever it appears to the Central Government that coal is likely to be obtained
from land in any locality, it may by notification, give notice of its intention to the prospect for
coal there. This provision did not make a distinction between virgin, worked, and unworked land.
– The preamble referred to the Act as one to establish an economic interest for India and greater
public control over the coal-mining industry, by providing for acquisition by the State of
‘unworked’ land containing or likely to contain coal deposits.
– The argument before the court was that the Act applied only to virgin lands and not to those lands
which were being worked, or had been worked in the past.
– The Court rejected the contention on the ground that the language of the enacting provision was
clear and therefore not controlled by the preamble. On a plain reading of section 4(1), the
government can prospect any land and not just virgin lands.
– The Court observed the following principles:
a) It is permissible to look at the preamble for understanding the import of various provisions,
but this does not mean that full effect shouldn’t be given to any express provision, even
though they appear to go beyond the terms of the preamble.
b) It is one of the cardinal principles of construction that where the language of the Act is clear,
the preamble must be disregarded, i.e., it cannot be invoked to restrict or curtail the scope of
an enactment. Though where the object or meaning or enactment is not clear, the preamble is
resorted to, in order to explain it.
34
 c) Where general language is used in an enactment, which it is clear must be intended to have
limited application, the preamble may be used to indicate the particular instances to which
the enactment is intended to apply.

HEADINGS AND TITLES

 Headings and titles of sections can be used to understand the intent of its particular sections.
 Bhinka v. Chaan Singh
– Under section 180 of the Uttar Pradesh Tenancy Act, 1939, a remedy was provided in the form of
ejectment of a person who was retaining possession of some land otherwise then in accordance
with provisions of the law for the time being in force.
– In this case, the question was whether a person having no title, but retaining possession, could be
ejected under the aforesaid provision.
– The title of the section in question read “ejectment of persons occupying land without title”. The
heading, here, gives clarity to the provision. It was thus argued that persons without title should
be brought within the ambit of the section, and the Court agreed.

MARGINAL NOTES
 They are written text to a section for clarity.
 The modern view of the courts is that marginal notes should have no role to play in interpreting a
statute.
 The basis of this view is that they are not a part of a statute because they were not originally drafted
by the legislature, but by the drafters, and can be inaccurate too.
 Exception: Indian constitution
 In Bengal Immunity Company v. 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.
 In Union of India v. Dileep Kumar Singh AIR 2015 SC 1420 – the apex court held that marginal
note appended to Section 47 of Persons with Disabilities (Equal Opportunities, Protection of Rights
and Full Participation) Act, 1955 makes it clear that idea of section 47 was not to discriminate against
employees who acquire disability during service.
 In K. P. Varghese v. IT Officer, it was held that marginal notes cannot control the interpretation of
the words of a section, particularly when the language of the section is clear and unambiguous, but
being a part of the statute, it prima facie furnishes some clue as to the meaning and purpose of the
section.

ILLUSTRATIONS
 Illustrations that are appended to a section from part of a statute, although forming no part of the
section, and are of relevance in the construction of the text of the section and should not be readily
rejected as repugnant to it.
 In Shambhunath Mehra v. State of Ajmer, it was held that:
– The case pertained to the Indian Evidence Act.
– A question arose with respect to certain payments. The prosecution, instead of proving the
absence of payments, relied on an illustration to section 106 of the Act, and contended that the
burden of proof was on the appellant to establish that payment had been done.

35
 – The Court held that the illustration to section 106 did not abrogate the well-settled norm that it
was the burden of the prosecution to prove its case.
– It was held that an illustration to a section forms a part of a statute and not of the section, and can
be used for construction of the text of a section very rarely.
– Illustrations cannot have the effect of modifying the language of the section above and they
cannot curtail or expand the ambit of the section.

SCHEDULES
 They appear at the end of an Act.
 If it is believed that the Schedule creates a different enactment, then if the schedule and provision are
mutually exclusive to each other, which one would prevail?
 Section 135 of the Companies Act talks about CSR. It is inclusive, and not exhaustive. Additionally,
Schedule VII enumerates a list of activities that could fall under CSR. Nothing in the list pertains to
the welfare of manual scavengers. Consider that a question arises before the court as to whether such
an activity would fall within the ambit of CSR. Would you look at section 135 or Schedule VII?
 In seeing or interpreting a particular schedule, can you consider it to be an enactment in itself? Yes.
– If there is some contradiction between the enactment and the schedule, the schedule will prevail.
– In cases where there is ambiguity in the schedule, you look into the original enactment, its
heading, and the intent, object and purpose of the provision.

 CIT, West Bengal v. Calcutta National Bank Ltd.

– It was held that the division of the statute into sections and schedules is generally a mere matter
of convenience and a schedule therefore may contain substantiated enactment, which may even
go beyond the scope of the section to which the schedule may appear to be connected by its
heading.
– In such cases, a clear positive provision in a schedule may be held to prevail over the prima facie
indication furnished by its heading and the purpose of the schedule contained in the Act.
– However, if the language is not clear in the schedule (i.e., there is an ambiguity), the provision of
the schedule may be construed looking into the purpose indicated by the heading and the intent
and purpose section.

PROVISO
 As a general rule, a proviso is added to an enactment to qualify or create an exception to what is in the
enactment ordinarily. It is a qualification of the preceding enactment which is expressed in terms too
general to be quite accurate.
 A proviso removes special cases from the general enactment. It is subsidiary to the main section. It
limits the ambit of the section.
 A proviso is a statement of certain acts that will not fall under the ambit of a particular provision. If
the proviso and the provision are mutually exclusive, the proviso will prevail.
 An exception clause carves out an exception to a general clause. If the exception and the provision are
mutually exclusive, the provision will prevail.
 For enactments that are amended, some rights are continued by the saving clause.
 If a proviso contradicts the main enactment, or is mutually exclusive to it, the proviso will prevail.

36
 If the proviso is coextensive with the enactment, there will be no curtailment or enlargement of the
right instated in the proviso.
 In S. Sundaram Pillai v. V. R. Pattibiraman, four situations in which proviso may be used have
been highlighted. A proviso may serve the following purposes:
– Qualifying or excepting certain provisions from the main enactment;
– It may entirely change the very concept of the intendment (legislative intent) of the enactment by
insisting on certain mandatory conditions to be fulfilled in order to make the enactment workable;
– 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
– It may be used merely to act as an options addenda to the enactment with the sole object of
explaining the real intendment of the statutory provision.

 Madhu Gopal v. Addl. District Judge.

– Section 16(5)(a) of the UP Urban Building Act, 1972, addresses a situation where there arises a
vacancy in the property ( shop basically). It pertains to review of order of release / allotment.
– Where landlord or any other person claiming to be a lawful occupant of a building or any part
thereof satisfies the District Magistrate that the review order was not made in accordance with
section 16(1)(a) and (b), the District Magistrate may again order for review.
Provided that no application under this clause shall be entertained later than seven days after the
eviction of such persons.
– The question was regarding lawful occupation at that particular time.
– Five owners. Four were occupying land. The fifth non-occupant owner, Mr. X, made a review
order. A, a tenant, applied for a particular property and got the shop.
– Proviso restricts to seven days.
– Mr. X put in his review order after 25 days. The judge maintained the application and held that A
cannot hold the property. This went against the proviso.
– X is still the landlord of the property. Is this 7 day embargo imposed only on ‘any other persons
claiming to be a lawful occupant’ or does it bind landlords as well?
– Court said that ‘or’ is a disjunctive term; there are two separate categories of people. If you put
the embargo on the landlord as well, you are curtailing his right. That cannot be done. Proviso
does not apply to landlords.
(ACT:
U.P. Urban Buildings (Regulation of Letting, Rent and
Eviction) Act 1972/U.P. Urban Buildings (Regulation of
Letting, Rent and Eviction) Rules, 1972. Section
16(5)(a)/Rule 10(9)--Review of order of release/Allotment--A
landlord even though not in actual possession can ask for
review of the order.

HEADNOTE:
The petitioner in the Special Leave Petition is the
tenant, Respondent No. 3 was one of the five co-owners of
the petition premises.
On January 28, 1978, one of the co-owners who had sole
37
possession of the shop vacated the shop and sent intimation
of the vacancy to the Rent Controller under the U.P. Urban
Buildings (Regulation of Letting and Eviction) Act, 1972.
The petitioner filed allotment application for the said shop
and he was the sole applicant.
The Rent Control Officer directed the petitioner to
appear in the allotment proceedings, called for a report
from the Inspector, found one of the co-owners to he in
possession of the shop and that he had discontinued the
business and was going to let out the shop. The 3 other co-
owners never objected to the petitioner's tenancy on the
allotment order. The allotment letter was accordingly passed
on 12th February.1978, and possession was taken up by the
petitioner thereafter.
On or about 25th February, 1978 the 3rd respondent who
was a non-occupant owner filed an application under section
16(5) of the Act i.e. after 25 days of the allotment,
for review of the order. The Rent Controller allowed the
review application and cancelled the allotment order.
The Additional District Judge having dismissed the
revision petition, the petitioner filed a writ petition in
the High Court.
The question about the maintainability of the review
application under section 16(5) of the Act at the instance
PG NO 276
PG NO 277
of a non-occupant owner having arisen the matter was
referred to a Full Bench and by a majority, the Bench came
to the conclusion that such an application was maintainable.
Dismissing the Special Leave Petition,
HELD: 1. A landlord, even though not in actual
possession at the time of the possession of the property,
can ask for review of the order of release or allotment.
[280G]
2. A landlord has a right to the property. The section
should not be so construed as to defeat the right to
possession of property in appropriate cases unless the
intention of the Legislature is manifest. [280F]
3. Section 16(5)(a) speaks of 'where the landlord or any
other person'. Hence, two categories of persons are
contemplated i.e. a land-lord, or any other person. [280C]
4. The requirement of the sub-section, to be in lawful
occupation of the building or any part thereof, applies only
in case of any other person claiming to be in lawful
occupation and not in case of landlord. The Section has used
the expression "or" and so the expression "or" is
38
disjunctive of these two categories to be treated
separately. Hence, the requirement to be in lawful
occupation, is not there is case of an application by the
landlord. [280C-D]
5. The proviso puts an embargo of 7 days in making the
application for review. It can only apply to those who were
in lawful occupation at the time of the making of the
original Order. It cannot curtail the rights of the
landlord. as such, it only affects any other person who was
in lawful occupation. [280E-G]
Niren Kumar Das v. 7he District Judge, Pilibhit & Ors.
AIR 1977 Allahabad 47, approved.)

Explanation

– S. Sundaram v V. R Pattabhiraman ( AIR 1985 SC 582)

EXTERNAL AIDS TO CONSTRUCTION

When internal aids are not adequate, court has to take recourse to External aids. External Aids may
be parliamentary material, historical background, reports of a committee or a commission , official
statement, dictionary meanings, foreign decisions, etc. [B. Prabhakar Rao v. State of AP].
Rule of Exclusion
State of Mysore v RV Bidap : extrinsic aids should not be decisive but they must be admissib;e
KP Varghese v IT Officer( AIR 1981 SC 1922) : (the speech made by the mover the bill)

In District Mining Officer v. Tata Iron & Steel Co., the Supreme Court has observed that it is a
cardinal principle of construction that external aids are brought in by widening the concept of context as
including not only other enacting provisions of the same statute, but its preamble, the existing state of
law, other statutes in pari materia, and the mischief which the statute was intended to remedy.

PARLIAMENTARY HISTORY, HISTORICAL FACTS AND SURROUNDING

CIRCUMSTANCES
Historical setting cannot be used as an aid if the words are plain and clear. If the wordings are ambiguous,
the historical setting may be considered in order to arrive at the proper construction. Historical setting
covers parliamentary history, statement of objects and reasons, report of expert committees.
 Parliamentary history means the process by which an Act is enacted. This includes conception of an
idea,
drafting of the bill, the debates made, the amendments proposed etc.
– The historical facts of the statute, i.e., the external circumstances in which it was enacted should
also be taken into note so that it can be understood that the statute in question was intended to
alter the law or leave it where it stood.
– The Supreme Court, in a number of cases, referred to debates in the Constituent Assembly for
interpretation of constitutional provisions. In, S.R. Chaudhuri v State of Punjab, it was held
that it is a settled position that debates in the Constituent Assembly may be relied upon as an aid
to interpret a constitutional provision because it is the function of the Court to find out the
intention of the framers of the Constitution,
39
 – But as far as speeches in Parliament are concerned, a distinction is made between speeches of the
mover of the Bill and speeches of other Members. Regarding speeches made by the Members of
the Parliament at the time of consideration of a Bill, it has been held that they are not admissible
as extrinsic aids to the interpretation of the statutory provision. However, speeches made by the
mover of the Bill or Minister may be referred to for the purpose of finding out the object intended
to be achieved by the Bill.
 So far as statement of objects and reasons, accompanying a legislative bill is concerned, it is
permissible to refer to it for understanding the background, the antecedent state of affairs, the
surrounding circumstances in relation to the statute, and the evil which the statute sought to remedy.
But, it cannot be used to ascertain the true meaning and effect of the substantive provision of the
statute. This position was affirmed in the case of Devadoss (dead) by L. Rs, v. Veera Makali
Amman Koil Athalur.
 Reports of Commissions including Law Commission or Committees including Parliamentary
Committees preceding the introduction of a Bill can also be referred to in the Court as evidence of
historical facts, or of surrounding circumstances, or of mischief or evil intended to be remedied. Law
Commission’s Reports can also be referred to where a particular enactment or amendment is the result
of recommendations of Law Commission Report. The Supreme Court, in Rosy v. State of Kerala,
considered the 41st Report of the Law Commission of India, for interpretation of section 200 (2) of the
Code of Criminal Procedure, 1898.

SOCIAL, POLITICAL AND ECONOMIC DEVELOPMENTS AND SCIENTIFIC INVENTIONS

 A Statute must be interpreted to include circumstances or situations which were unknown or did not
exist at the time of enactment of the statute. Any relevant changes in the social conditions and
technology should be given due weightage. Courts should take into account all these developments
while construing statutory provisions.
 In S.P. Gupta v Union of India, the Court held that the interpretation of every statutory provision
must keep pace with changing concepts and values and it must, to the extent to which its language
permits or rather does not prohibit, suffer adjustments through judicial interpretation so as to accord
with the requirement of the fast-changing society which is undergoing rapid social and economic
transformation.
 It is elementary that law does not operate in a vacuum. It is, therefore, intended to serve a social
purpose and it cannot be interpreted without considering the social, economic and political setting in
which it is intended to operate.
 It is here that the Judge is called upon to perform a creative function. He has to inject flesh and blood
in the dry skeleton provided by the legislature and by a process of dynamic interpretation, and invest
it with a meaning which will harmonise the law with the prevailing concepts and values and make it
an effective instrument for delivery of justice.

REFERENCE TO OTHER STATUTES

 Where two Acts have to be read together, then each part of every act has to be construed as if
contained in one composite Act. However, if there is some clear discrepancy, then the latter Act
would modify the earlier.
 Where a single provision of one Act has to be read or added in another, then it has to be read in the
sense in which it was originally construed in the first Act. In this way, the whole of the first Act can
be mentioned or referred in the second Act even though only a provision of the first one was adopted.

40
 In a case where an old Act has been repealed, it loses its operative force. Nevertheless, such a
repealed part may still be considered for construing the unrepealed part.
 For the purpose of interpretation or construction of a statutory provision, courts can refer to or can
take help of other statutes. It is also known as statutory aids. The General Clauses Act, 1897 is an
example of statutory aid.
 The application of this rule of construction has the merit of avoiding any contradiction between a
series of statutes dealing with the same subject, and it allows the use of an earlier statute to throw light
on the meaning of a phrase used in a later statute in the same context.
 Applying the same logic, when words in an earlier statute have received an authoritative exposition by
a superior court, use of same words in similar context in a later statute will give rise to a presumption
that the legislature intends that the same interpretation should be followed for construction of those
words in the later statute.

DICTIONARIES
 When a word is not defined in the statute itself, it is permissible to refer to dictionaries to find out the
general sense in which that word is understood in common parlance.
 However, in the selection of one out of the various meanings of a word, regard must always be had to
the scheme, context and legislative history.

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

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

41
 INTERPRETATION OF REMEDIAL, PENAL AND FISCAL STATUTES

PENAL STATUTES
 Anything that defines a crime, and gives punishment with respect to the same, is a penal statute.
 The Act has to be very immaculately drafted.
 Judges have to apply the legal text only as is written in the enactment. Once the court has clear
meaning of the text, no further investigation is required. Even then if two reasonable constructions
arise, the one that is favourable to the accused must be chosen.
 Where by strained construction of a penal statute, it is made to include an act which is not otherwise
punishable, it is known as ‘constructive crime’.
 The rule that a statute enacting an offence or imposing a penalty is strictly construed is now only of
limited application. The rule was originally evolved to mitigate the rigour of monstrous sentences for
trivial offences. Although that need has now vanished, the difference in approach continues to persist.
 In Chief Inspector of Mines v. Karam Chand Thapar, it was held that a statute 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.
 In State of W.B. v. Swapan Kumar Guha, it was observed that where an ambiguity exists and it has
not been possible for the legislature to express itself clearly, the court exhibits a preference for the
liberty of the subject and resolves the doubt in favour of the subject (accused).
 In W.H. King v. Republic of India, it was observed that a statute which creates an offence and
imposes a penalty of fine and imprisonment must be construed strictly in favour of the subject. The
principle, that no person can be put in peril of his life and liberty on an ambiguity, is well established.
 To put it in other words, as held in M.V. Joshi v. M.U. Shimpi, the rule of strict construction requires
that the language of a statute should be so construed that no case shall be held to fall within it which
does not come within the reasonable interpretation of the statute.
 As observed in Lalita Jalan v. Bombay Gas Co. Ltd., penal provisions should be construed in a
manner which will suppress the mischief and advance the object which the legislature had in view.
 It was also held in Collector of Customs v. East Punjab Traders, that the provisions of a penal
statute cannot be presumed to have retrospective operation.
 When there are two possible constructions, the court must lean towards that construction which
exempts the subject from penalty, rather than the one which imposes penalty. The Court held, in
Tolaram Relumal v. State of Bombay, that the court cannot stretch the meaning of an expression
used by the legislature in order to carry out the intention of the legislature.

 It was held in Ashok Kumar v. State of Haryana, that even though the settled rule is that penal
statutes must be construed strictly, certain statutes 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 would defeat the very purpose of the provisions of the act.
– Of course, these are penal provisions and must receive strict construction. But, even the rule of
strict construction requires that the provisions have to be read in conjunction with other
relevant provisions and scheme of the Act.
– Further, the interpretation given should be one which would avoid absurd results on the one
hand and would further the object and cause of the law, so enacted, on the other.

42
 In Dineshchandra Gandhi v. State of Gujrat, it was held that:
– Where offences under the Act are really acts prohibited by the police powers of the state in the
interest of public health and well-being, and prohibition is backed by the sanction of a penalty,
the offences are strictly statutory offences and intention or mental state is irrelevant.
– Such acts prescribe a strict liability. Thus, in such acts, establishing mens rea is not needed.

 The rule of construction in penal statutes does not prevent the court from interpreting a statute
according to its current meaning and applying the language to cover developments in science and
technology not known at the time of passing the statute.
– In R. v. Ireland, psychiatric injury caused by silent telephone calls was held to amount to assault
and bodily harm under the Offences against Person Act, 1861 in the light of the current scientific
appreciation of the link between the body and psychiatric injury.

– In R v Fellows, data stored in computer disc (a technology not anticipated in 1978), was held to
amount to ‘indecent photograph’ within the meaning of Section 1 of the Protection of Children
Act ,1978 (even before its amendment in 1994), which penalises taking or distribution of indecent
photograph of children under the age of 16.

 Virtual Soft Systems Ltd. v. Commissioner of Income Tax (2007).

– In this case (prior to amendments by the Finance Act, 2002), the questions that arose before the
Supreme Court were:
 What was meant by the words ‘in addition to any tax payable’ in the charging § 271(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 creating 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.
– Reference was made to the case of Bijaya Kumar Agarwala v. State of Orissa (which further
cites Tolaram Relumal v. State of Bombay), that strict construction is the general rule of penal
statutes. If two possible and reasonable constructions can be put upon a penal provision, the court
must lean towards that construction which exempts the subject from penalty, rather than the one
which imposes penalty. The court must not stretch the meaning of an expression used by the
Legislature in order to carry out the intention of the Legislature.
– It was held that § 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.
– Therefore, when a law visits a person with serious penal consequences, extra care must be taken
to ensure that those whom the legislature did not intend to be covered by the express language of
the statute are not roped in by stretching the language of the law.

 Aneeta Hada v. Godfather Travels and Tours Ltd. (2012)

– The appellant, Aneeta Hada, an authorised signatory of International Travels Limited, issued a
cheque dated 17th January, 2011 for a sum of Rs.5,10,000/- in favour of the respondent, namely,
M/s. Godfather Travels & Tours Private Limited, which was dishonoured, as a consequence of
which the said respondent initiated criminal action by filing a complaint before the concerned
Judicial Magistrate under Section 138 of the NI Act.
43
 – In the complaint petition, the company was not arrayed as an accused. However, the Magistrate
took cognizance of the offence against the accused appellant.
– Section 141 of the Negotiable Instruments Act, 1881 deals with offences by companies. Under
the section, it is provided that if the person committing an offence under section 138 is a
company, every person who, at the time the offence was committed, was in charge of, and was
responsible to the company for the conduct of the business of the company, as well as the
company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against
and punished accordingly. (Essentially, this is a statutory provision allowing for all responsible
individuals, in addition to the company itself, to be proceeded against).
– The Court observed that the word ‘deemed’ used in Section 141 of the Act applies to the
company and the persons responsible for the acts of the company. It crystallizes the corporate
criminal liability and vicarious liability of a person who is in charge of the company.
– Reference was made to SMS Pharmaceuticals Ltd. v. Neeta Bhalla, wherein it was opined that
the criminal liability on account of dishonour of cheque primarily falls on the drawee company
and is extended to the officers of the company, and as there was a specific provision extending
the liability to the officers, the conditions incorporated in Section 141 were to be satisfied.
 The normal rule in the cases involving criminal liability is against vicarious liability, i.e., , no
one is to be held criminally liable for an act of another. This normal rule is, however, subject
to exception on account of specific provision being made in the statutes extending liability to
others. Section 141 is one such exception.
 Section 141 contains conditions which have to be satisfied before the liability can be
extended to officers of a company. Since the provision creates criminal liability, the
conditions have to be strictly complied with.
 The conditions are intended to ensure that a person who is sought to be made vicariously
liable for an offence of which the principal accused is the company, had a role to play in
relation to the incriminating act and further that such a person should know what is attributed
to him to make him liable.
– The Court cited Francis Bennion in Statutory Interpretation, where it is stated that a principle of
statutory interpretation embodies the policy of the law, which is in turn based on public policy.
The court presumes, unless the contrary intention appears, that the legislator intended to conform
to this legal policy. A principle of statutory interpretation can therefore be described as a principle
of legal policy formulated as a guide to legislative intention.
– It also cited Maxwell in The Interpretation of Statutes, wherein it is stated that the strict
construction of penal statutes seems to manifest itself in four ways:
 In the requirement of express language for the creation of an offence;
 In interpreting strictly, words setting out the elements of an offence;
 In requiring the fulfilment to the letter of statutory conditions precedent to the infliction of
punishment; and
 In insisting on the strict observance of technical provisions concerning criminal procedure and
jurisdiction.
– The Court observed that there has to be strict observance of the provisions, with regard being had
to the legislative intendment because it deals with penal provisions and a penalty is not to be
imposed affecting the rights of persons whether juristic entities or individuals, unless they are
arrayed as accused.
– The power of punishment is vested in the legislature and that is absolute in Section 141 of the Act,
which clearly speaks of commission of offence by the company.
44
 – The counsel for the respondents vehemently urged that the use of the term ‘as well as the
company’ in the Section is of immense significance and, in its tentacle, it brings in the company as
well as the director and/or other officers who are responsible for the acts of the company and ,
therefore, a prosecution against the directors or other officers is tenable even if the company is not
arraigned as an accused.
– The Court observed that the words ‘as well as the company’ have to be understood in the context.
The entire statute must be first read as a whole, then section by section, clause by clause, phrase
by phrase and word by word.
– Applying the doctrine of strict construction, the Court held that the commission of an offence by
the company is an express condition precedent to attract the vicarious liability of others. Thus, the
words ‘as well as the company’ appearing in the Section make it absolutely unmistakably clear
that the persons mentioned in the Section could be vicariously liable for the offence only when the
company can be proceeded against.
– Applying the principle of strict interpretation of penal statutes, the Supreme Court held that only
the drawer of the cheque could be made liable for penal action under Section 138 of NI Act, and
not another person who had merely negotiated the transaction out of which debt had arisen, and
was only a joint account holder along with the drawer, but had not signed the cheque.
– The Court was of the view that Section 141 was not attracted, and held that a prosecution
thereunder cannot be maintained only against an officer of the company, without arranging the
company as an accused, since officers of a company can only be held vicariously liable for the
offences committed by a company.

 Some of the propositions important in relation to strict construction of penal statutes are as
follows:
– If the scope of prohibitory words covers 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.
– 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.
– If prohibitory words, in their own signification, bear wider meaning, they fit in with the object
or policy of the statute.

DIFFERENCES BETWEEN REMEDIAL AND PENAL STATUTES

REMEDIAL STATUTES PENAL STATUTES

They deal with the wrongs against the State.

They deal with the wrongs against an individual.

They deal with those matters which affect the

They deal with those matters which affect the
individual only.
whole community.

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They provide a remedy for infringement of private
They provide punishment for public wrong.
civil rights of an individual.

They deal with such wrongful acts,

They deal with such wrongful acts for which
the commission of which attracts punitive (penal)
remedy is civil action.
action.

Remedy for wrongful acts is provided in the form

of damages or compensation to the
Penalty such as imprisonment, fine,
aggrieved party, but the wrongdoer is not held
forfeiture etc.is imposed on the offender.
liable for any penalty.

Duty is fixed by the State.

Duty is fixed by party.

The state takes action and state is a

The injured party takes action. prosecuting agency.

Negligence along with criminal intention must be

Proof of negligence is sufficient. proved to constitute an offence or crime.

They receive liberal or beneficent construction.

They are strictly construed.

They are also known as welfare, beneficent or

social justice-oriented legislation. They are simply known as penal statutes.

They are enforced by law when suit is filed by the

In case violation of penal law, the state initiates
aggrieved person in civil court or tribunal.
the action against the criminal courts.

The doubt is resolved in favour of the class of

The doubt is resolved in favour of the alleged
person for whose benefit the statute is enacted.
offender.

FISCAL STATUTES
 Taxing statutes are to be strictly construed.
 Lord Simmonds stated that the subject is not to be taxed without clear words for that purpose,
and every Act of Parliament must be read according to the natural construction of its words.
 The Judiciary cannot, by implication, ask a person to bear a tax.
 In CIT v. Calcutta Knitwears, it was held that Courts, while interpreting provisions of a fiscal
statute should neither add nor subtract a word from the provisions.
 In Gurusahai v. CIT, it was held that while fiscal statutes are to be strictly construed, provisions as
to ‘relief’ and ‘exemption’ must be construed liberally since they are remedial provisions. This
exemplifies the distinction between charging provisions (strictly construed) and machinery provisions
(liberally construed).

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 Every taxing statute must contain three elements – subject of tax, person to be taxed, and rate of
tax.
 It must be a charging section, i.e., penalty must be provided. The section that charges the tax must
have clear words. In Calcutta Jute Manufacturing Co. v. Commercial Tax Officer, the Supreme
Court held that in a case of interpreting a taxing statute, one has to look into what is clearly stated.
There is no room for searching intentions, presumptions, or equity. There exists in law a concept of
‘equitable construction’, but it does not apply in case of taxation statutes.
 Taxation statutes have to be given strict construction and the right to tax should be clearly established.
Equitable construction should not be taken into account. [these two points were given in Saraswati
Sugar Mills v. Haryana State Board]. Intention to impose or increase tax or duty must be clear and
in unambiguous language (example of CSR). Further, if two outcomes may be there, the interpretation
favourable to the assessee must be taken.
 The cardinal principle of tax laws is that the law in force in the assessment year unless otherwise
provided expressly or by necessary implication (procedural provisions).
 No retrospective effect to a fiscal statute is possible, unless the language of the statute is very clear
about the same. Case talking about necessary implication is Reliance Jute Industries Ltd. v.
Commercial Tax Officer.
 No presumption as to tax can be taken.
 A fiscal statute has to be read as a whole.
 A person is not liable to tax on the spirit of the law, or logic, or reason.
 The tax authorities must consider the legal aspect of a particular transaction for levy of tax. This is
called ‘substance of the matter’.

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 GENERAL PRESUMPTIONS

Note: The doctrine of necessary implication states that what is implied in a statute is as much part of the
statute, as which is expressed. Every statute is understood by implication to contain all such provisions as
may be necessary to give effect to the provision’s object and purpose.

THE WORDS IN A STATUTE ARE USED PRECISELY AND NOT LOOSELY

 This rule follows the maxim ‘verbis legis non est recedendum’, which means that you must not vary
the words of a statute. The courts should not make any interpretation contrary to the express words of
an enactment.
 If something has been said by the legislature, there is an implication that it has to be necessarily
applied.
 Mayor, Councillors & Burgesses v. Electrical Power Board.
– In this case, the phrase ‘adjoining territory’ was being interpreted.
– The respondents commenced an action for the determination of the question of validity of certain
agreements to supply electricity to certain adjoining territories.
– It was decided that the primary and exact meaning of the term ‘adjoining’ is ‘conterminous’, i.e.,
having a common boundary attached. Only those states that shared a common boundary with the
state in question would fall within the definition of ‘adjoining territory’.

MENS REA IS GENERALLY REQUIRED FOR A CRIMINAL ACT

 A statute creating an offence may define the particular state of mind, which is to be an element of the
offence, either expressly or by necessary implication. It may be silent also.
 In such cases, unless mens rea as a constituent part of a crime is ruled out by necessary implication, a
court should be jealous to guard the liberty of the subject and should not find a man guilty unless he is
proved to have had a guilty mind.
 Srinivas Mall v. Emperor.
– In this case, the appellant and his employees were charged with having sold a commodity at a
price exceeding the maximum price fixed under the Defence of India Act, 1939 and the rules
made thereunder. The employer was not aware of the conduct of his employees.
– The High Court convicted the employer due to the application of the concept of vicarious
liability. Further, it noted that the crime was based on an absolute prohibition. (sometimes in
statutory offences, the mens rea requirement is excluded but this is not the case with common
law, absolute prohibition is generally for minor punishment with not much fine or imprisonment).
– The High Court took the view that even if the first appellant (i.e., the employer) had not been
proved to have known of the acts of the second appellant (i.e., the employee), he would still be
liable on the ground that where there is an absolute prohibition, no question of mens rea arises
and the master is criminally liable for the acts of his servant.
– The Privy Council saw no ground for saying that offences against those of the Defence of India
Rules here in question were within the limited and exceptional class of offences which can be
held to be committed without a guilty mind. Offences generally within this class were of minor
character and it would be a surprising result of this delegated legislation if a person who was
morally innocent of the blame, could be held vicariously liable for a servant’s crime, and so
punishable with imprisonment of three years and more.

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 – The PC quoted a previous judgement which stated that: “It is in my opinion, of utmost
importance for the protection of the liberty of the subject that the court should always bear in
mind that unless the statute either clearly or by necessary implication, rules out mens rea as a
constituent part of a crime, a defendant should not be found guilty of an offence against the
criminal law unless he has got a guilty mind.
– The Privy Council said that there is no exclusion by necessary implication and so the employer
cannot be charged. The punishment of the offence committed is 3 years, i.e., it is a serious
offence. Punishment for such offences, cannot be excluded by necessary implication; it cannot
fall under that exception. A person who has no mens rea cannot be made liable for an offence –
doing so would not have been the intention of the legislature.

THE GOVERNMENT IS AFFECTED BY THE STATUTE

 Under English law, unless the Crown was explicitly named in the provision, it could not be made
party to the case.
 In India, the case is different. Unless the State is explicitly excluded, we presume that the state is party
to the dispute. This principle was reiterated in Union of India v. Jubbhi.

THE LEGISLATURE KNOWS THE EXISTING LAW AND DOES NOT INTEND TO ALTER IT
EXCEPT BY EXPRESS ENACTMENT
 You cannot change any law just by judicial interpretation.
 The legislature has to give an express enactment, only then is the change in law valid.
 If you are construing the post-amendment provision, the judiciary will have to look into the pre-
amendment scenario as well. This was discussed in the case of Abdul Rahim v. Abu Mohd.

THE LEGISLATURE DOES NOT COMMIT MISTAKES OR MAKE OMMISSIONS

 If the precise words used are plain and unambiguous, we are bound to construe them in their ordinary
sense.
 Words may be modified or varied when their import is doubtful or obscure.
 If words taken grammatically have a certain and unequivocal meaning, if they constitute a perfectly
complete expression susceptible only of that one meaning, then however absurd and pernicious the
consequences, that meaning is to be followed.

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