STATUTORY INTERPRETATION AND THE WELFARE STATE

Author(s): SHELDON D. ELLIOTT

Source: Journal of the Indian Law Institute , JANUARY—JUNE 1960, Vol. 2, No. 2/3
(JANUARY—JUNE 1960), pp. 257-272
Published by: Indian Law Institute

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 STATUTORY INTERPRETATION AND THE
WELFARE STATE
SHELDON D. ELLI OTT•

“ Inevitably the work of the Supreme Court reflects the great

shift in the centre of gravity of law-making. Broadly speaking,
the number of cases disposed of by opinions has not changed
from term to term. But even as late as 1875 more than 40% of
the controversies be fore the Court were common-law litigation,
fifty years later only five per cent, while today cases not resting
on statutes are reduced almost to zero. It is certainly true of the
Supreme Court that almost every case has a statute at its heart
or close to it.”
Frankfurter, “Some Reflections on the Reading of Statutes”,
47 Colvmb ia Lain deciztu 527 (1947) .
“ In the detached atmosphere of the courts, they should see
to it that nothing is done that may be.. .against the good of
the country, that may be against the community in the larger
sense of the term .. .Ultimately, the fact remains that the
Legislature must be supreme and must not be interfered with
by the courts of law in such measures of social reform.”
Prime Minister Nehru, Constituent Assembly Debat.•s, Volume
I, No. 31, pp. 1195-6 (1949).
“ In our conception of the State, as a Welfare State, the admi-
nistration pervades every walk and aspect of a citizen’s life and
naturally, therefore, the scope of legislation is very wide ; and
the number of laws that are required to be enacted is quite
large.”
Address by the Speaker to the Members of Committee on
Subordinate Legislation, third Rzfiort of the Committee, p. 15
(1955).
The observations of Mr. J ustice Frankfurter on the predominance
of statutory problems in cases decided by the United States Supreme
Court are applicable with equal force to decisions of the Supreme
• Professor of law, New York University; Visiting Consultant to the Indian Law
Institute, 1960. Much of the material on which this article is bared was assembled
for, and appears in the I nstitutc’s syllabus of teaching materials on Indian Ad-
ministrative Law (Preliminary Draft. 1960) . Gh. IVG.

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258 sT&TUTORY INTARPRRTATION

Court of India. Indeed, if problems of interpreting the Constitution,

and those involving subordinate legislation and administrative regula-
tions, are added to the category of matters arising under regular legis-
lative enactments, the preoccupation of the Supreme Court as well as
the High Courts with “ statutory problems ” is overwhelming. One
is hard put to find among the many volumes of the All India Reporter
in recent years any cases that would constit ute purely common-law
decisions in the traditional sense of the term, hallowed though that
tradition may have been in the developmental shaping of English and
Indian jurisprudence.
This shift in the thrust of the jnd icial function from concern
with the common law to concern with statute law has inevitably
brought into increasing prominence the principles and techniques of
statutory interpretation. Parliament and the state legislatures make the
laws, but the courts and the executive department must construe and
apply them. If there is doubt, and there often is, as to statutory meaning
or as to what the legislature intended, this doubt is normally one to be
resolve d by the court either immediately or in the ultimate recourse.
What the court says the law is, or what court says the legislature meant,
becomes “ the law ”—at least until Parliament or the state legislature
changes it. The same is true, mutatis mutandis, of subordinate
legislation, administrative regulations, and constitutional interpretation.
The vast responsibility thereby reposed in the judiciary gives cogent
point and emphasis to Prime Minister Nehru’s caveat. “ Mea- sures of
social reform ” loom large in the present-day program of Welfare-
State planning and if the courts of law misjudge the intention of the
planners as manifested in legislative enactments—representing the “will
” of the elected representatives—there may be time-consum- ing delays
in carrying forward the popular program. Does this then mean
judicial abdication and subservience to parliamentary supre- macy ?
Obviously not. The Constitution remains the supreme law of
the land, and the judges, as its ultimate interpreters, must, on
occasion, hold that parliamentary action transgresses constitutional
provisions or principles. True , if there is a choice between holding a
statute valid and holding it invalid, doubts, should be resolved in favour
of validity. Yet, if there is no choice but that of declaring particular
legislation or portions thereof unconstitutiona!, the court has the power
as well as the duty to do so.I

1. See Gopalan v. State off Madras, A.I.R. 1950 S.C. 27,34 and see Ghintatnanrao v.
State u.f M.P., A.I.R. l9â1 S.C. 118, 120 ; Stat» »f Madras v. V.G. Row, A.I.R
1952 S.C. 196, 199.

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 flBBI•DON D. ELLIOT’P 259

Short of unconstitutionality, however, the courts have a fairly

wide spectrum of techniques for determining the policy implicit or
explicit in the statute. Commentators have suggested that there are
several avenues or categories of judicial approach to the interpreta-
tion of statutes, none of which avenues is necessarily sufficient or
exclusive of the others.• The traditional approach of the English
courts has often been the so-called “ analytical ” or “ logical ” one,
through the application of maxims, canons and rules of construction,
z'ith occasional but rather limited reliance on intrinsic guides in the
statute itself or on extrinsic peripheral aids. By contrast, the “ social
policy ” approach, resembling the French principles of “ bul social “,
stresses judicial consideration of the social or economic needs of the
community as primary guides in construing a statute. As a third
category, there is the “ free intuition ” approach which allows the court
a wide latitude of subjective indulgence in reaching what it conceives to
be a “just” result in resolving statutory doubt or ambiguity. Many of the
Indian cases dealing with problems of statutory construction have
manifested an inclination toward the analytical or logical approach,
deriving support from English decisions and autho-
ritative treatises such as Maxu›ell on Thc Interpretation of Statutes and
Croiei on Statute Law. In the light of this tendency, it would be well
to reappraise the traditional techniques and principles with a view to-
ward suggesting modification or adaptation, where necessary, to per-
mit greater freedom in the selection of means for ascertaining the legis-
lative purpose, and for implementing the legislative purpose so as-
certained. Accordingly, and with the use of selective examples, it is
proposed herein to review the techniques utilized and to see wherein
they can be, or are being, judicially applied so as to support rather
than to retard the carrying out of the legislative program.
Basic rules and doctrines
The rule of “ literalness ” or of rigid adherence to the letter of
the law as written, regardless of consequences, probably has little to
commend it as an aid to carrying forward the developmental policies
of a welfare program. Yet, it has been utilized by the Bombay High
Court in construing the Bombay Industrial Relations Act, 1946 (11
of 1947), the Court stating :
“ When the law is clear, the matter is beyond the powers and
competence of the Court, and it is only the Legislature that

2. the Cod» Napoleon and the C!omman law iPorid (ed. by Schwartz) (1956) p. 83. Si«
also, Friedmann, “Statute Law and its Interpretation,” 26 G‹ui. B. Na. l277,
)300 (t948).

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260 flTATB’2'OBY IHTBBPBBTATION

can alter the law in order to bring it into conformity with

modern and more advanced views in the subject.”°
Less rigid, and therefore seemingly preferable to the principle
of purely literal interpretation is the so-called “ golden rule ” of
statutory construction : that the words of a statute should be given
their plain and natural meaning tiiifen manifest injustice or absurdity
would result. The rule is one of respectable English lineage,' and has
been recognized by the Supreme Court of India.’
Even more utilitarian for the modern approach to construing
statutes is the “ mischief rule ” enunciated by Sir Edward Coke in
Heydon’s case,6 t h £ t
. .. for the sure and true interpretation of all statutes in
general (be they penal or beneficial, restrictive or enlarging of
the common law) four things are to be discerned and consi-
dered :
1st. What was the common law before the making of the
Act ?
2nd. What was the mischief and defect for which the com- mon
law did not provide ?
3rd. What remedy the Parliament hath resolved and ap-
pointed to cure the disease of the Commonwealth, and
4th. The true reason of the remedy ; and then the office of
all judges is always to make such construction as shall
suppress the mischief, and advance the remedy. ”*
Faced with the possibility of choosing among the three foregoing
rules, each of which has been accepted by the courts of India, it is
submitted that a court could wisely choose the third, the “ mischief
rule ”, as affording the best and surest means of reaching a result that
accords with the true legislative purpose.
This approach may on occasion require relaxation of the res-
trictive effect of the doctrine of “ couns omiisiis ”—that

3. Usman Habib v. Staff of Bombay, A.I.R. 1955 Bonn. 177,181.

4. It has been variously attributed to J ervis, C.J., in lvlattison v. Hart, 14 G.B. 357,
139 Eng. Rep. 147 (1854) ; to Lord Wensleydale in Gr‹ty v. Pearson, 6.H.L.C. 61,
10 Eng. Rep. 1216 (1857) and to other English sources. See Maxwell an Ttn
liiterprelotian of Statutes (10th ed. 1953), p. 7.
5. See for example, Jugalkishor« v. Raw G»ltun Co., A.I.R. 1955 S.C. 376, 381. And see
Hanalal v. Bombay L fi« Assurance Ga., A.I.R. 1950 S.G. 172, 187.
6. 3 Go. Rep 7a, 76 Eng. Rep. (1584).
7. Quoted in Bengal Immunity Co. v. State of Bihar, A.I.R. 1955 S.C. 661, 674. See also
Kanai Lal v. Paramnidhi, A.I.R, l9â7 S,C.. 907 ; and A Bhaskor in v. Sillaf ji4,
A.LR. 1959Mad. t99,

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 samsno« n. znion 261

“ If a particular case is omitted from the terms of a statute,

even though such a case is within the obvious purpose of the
statute and the omission appears to have been due to accident
or inadvertence, the Court carinot include the omitted case by
supplying the omission.”
Coupled with recourse to extrinsic aids, as recommended herein-
after, such relaxation would enable the court to function in accor-
dance with Coke’s admonition to “ suppress the mischief, and advance
the remedy ”. Traditionalists of the analytical school may cavil that
this is opening the door to “ judicial legislation ", but to judges who
conscientiously strive to carry out rather than to delay fulfilment of
the legislative intent, no door should be closed.
A somewhat allied principle which aids in saving a potentially
vulnerable statute is best known by its Latin phrasing—ut rcs mag’u
valeat quam pzrzaf—that it should be so construed as to uphold rather
than to invalidate it. This principle has also been acknowledged by
the courts of India.° Cognate with a judicious application of the
“ mischief rule ", it helps to reinforce the basic objectives of making
the legislative program effective.
How about the time-honoured well-worn rules of strict and
liberal construction in particular statutory areas ? Criminal statutes,
when ambiguous, are normally construed strictly against the State, but
if the purpose as well as the context of the statute indicates otherwise,
the doctrine does not apply.* 0 A Welfare State is no less solicitous than
others when it comes to favouring the tax-payer in case of genuine
doubt,11 but “ it is not permissible for the Court to create an ambi-
guity by interpretation as a preliminary to the grant of relief to the tax-
payer to which he would otherwise not be entitled,”" and if a tax act,
without ambiguity, provides to modes of tax determination, and the
authority chooses the mode which will realize the larger amount, it
cannot successfully be urged that the second mode is unlawful because
the first mode is more beneficial to the citizen l8 Again, although laws

8. Clalcutta National BanL v. Abhoy Singh, A.I.R. 1959 Gal. 464,469.

9. I• T• Gomrnñiionrr v. Raja Singh, A.I.R. 1959 S.C. 352, 355 (citing I urtis v. Sioain,
(1889] Q.B.D. 513, Maxwell, op. cit. pp. 236-237, Grains on Statute Law, p. 90) ;
And
°*° * ^* "1*!*!hir, A.I.R. 1959 Mad. 450, 452.
10. Alamgir v. Slam o/Ztibor, A.I.R. 1939 S.C. 436 ; State v. 2fonu Dharma,
A.I.R.
1955 Bonn. 391.
11. Empress Mills v. Munkipal ClommitW Wordha, A.I.R. 1958 S.C. 341 ; M/s.
GArlal
Dsuchand v. 7.T. Comms ia •r , A.I.R. 1959 Bonn. 152.
t2. Crn•ro/ C«mmwra/ Corporotén v. /.W. Comb ia, A.I.R. 1955 dad. 65, 66,
t3• Zffraâ/ior /i«é/ipi v, Si•t• «/ B4fit§0/, A.S.R. \955 Bozn. t85.

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 262 8T&TDTOBY INTRRPRET&TION

ousting jurisdiction of civil courts should be strictly ’ construed, yet

where the object of Parliament was clearly to give exclusive jurisdic-
tion to a special tribunal—as, for example, under the Displaced Per-
sons (Debt Adjustment) Act, 1951—the rule of strict construction does
not apply.1* Finally, and most cogent of all, there is the fundamental
principle that remedial acts and those which are beneficial or ameliora-
tive in character should be liberally construed.'°
Intrixnsic guides
(a) Grammatical rules and maxims
Fortunately, the canons of grammatical construction are suffi-
ciently flexible that no court need feel bound to doctrinaire insistence on
their affirmative application. Take, for example, “ expressio unius rit
exelusio alterius ”—the express mention of a specific thing or things is an
implied exclusion of other things not mentioned. The maxim, as the
Supreme Court of India has pointed out, is not one of universal appli-
cation and should not be used to thwart the manifest intention of the
framers of the document construed, namely, the intention to include
o the r t h ing s t h £t £l t h o s e spec ific ia lly e Tl u m e ra t e d, l ^
So also with eJusdem generic—the maxim that where specific things
are enumerated, followed by a general phrase such as “ and other
things ”, the general words should be construed as limited to things of the
same kind as those enumerated. The principle has been recognized by
the Indian courts,l ' but has been held to be in applicable where the
context and object do not require a restricted meaning to be given to
the general words.'® It should be noted that where only a single
species is enumerated, there is no “ genus ”’° as is also the case where
the specific items are widely dissimilar in character.°°
The maxim of noscitur a ioriis—that associated words take color
from each other—may be a useful guide in case of doubt as to the in-
tended meaning of one of them. “ It is a legitimate rule of construc-

14. Baburao v. K. Pai v. Dalsuk M. Pancholi, A.I.R. 1955 Born. 89.

15. State of West Bengal v. Basantu Kumar, A.I.R. 1959 Gal. 168 ; Dagadu Balu s.
Ram‹Lio no£fiia,/i, A.I.R. 19â5 Bonn. 152 ; and Kz/uiu em' v. Aojn joiner, A.I.R. 1959
S.C. 422.
16. See, Zn rz Art. 143, Constitution o.f India, etc., A.I.R. 1951 S.C. 332, 370. See also,
florin.fi Chandra v. Trilok Singh A.I.R. 1957 S.G. 444.
17. Amar Singhji v. State of Rajasthan, A.I.R. 1955 S.C. 504, 5k'3 ; Kalmath v.
Hagendra 0halh. A I.R. 1959 Cal. 81.
18. Lilaooti Bai v. Bombay State, A.I.R. 1957 S.C. 521.
19. Stall of Bombay v. Ali Gulshan, A.I.R. 1955, S.C. 810. Accord, State v. ]amnabai,
1955 Bonn. 280, and Saral Ghandra v. Calnilla Corporation, A.I.R. 1959 Cal. 36.
20. Maxuiell. op. cit., p. 344; Hyderabad [Sind) Elec. Supplying to. v. Union of India
A.I.R. t9â9 Punj. 199.

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 8BBLDON D. RUMOTT 263

tion to construe words in an Act of Parliament with reference to words

found in immediate connection with them.°*
The “ last antecedent ” rule—“ ad proximum anteced us fiat rilatio
nisi impedialur ieafrntia ”—that a qualifying phrase or clause applies
only to the last of several preceding subjects unless the context indicates
otherwise, is recognised by Indian authorities.'° Here again, the qualification
“ unless the cont ext indicates otherwise ” gives room for choice to
disregard the maxim’s primary import.•°
(b). Construction of particular uiords
“ The first and most elementary rule of construction ”, avers
Maxwell, “ is that it is to be assumed that the words and phrases of
technical legislation are used in their technical meaning, if they have
one, and, otherwise in their ordinary meaning ; ....°' But, while
the technical connotation may be significant, particularly in statutes
dealing with technical matters, it is open to the court to adopt the
popular meaning if the latter seems preferable.•5
The word “ or ” is customarily used as a disjunctive, and the
word “ and ” as a conjunctive ;° 6 but “ or ” can be construed to mean
“ and ” and nice rsria.°° Similarly, “ may ” is ordinarily permissive
or directory, and “ shall ” is mandatory or imperative• but “ shall ”
can be interpreted as “ may ” ;°° and “ may ” can mean “ shall ”
or “ must ”, especially where it imports a “ power coupled with a
duty ” or where the statute authorises an act to be done for the benefit
of others.°0 According to High Court decisions, “ every ” can

21. M.K. Ranganathan v. isooernment of Ivladras, A.I.R. 1955 S.C. 604, 609 (quoting
from Angus Robertson v. merge Day, [1879] A.C. 63, 69).
22. Eindra, the ?nferprrtotion o/ Statutes and Cencral Clauses Act (1954), p. 64: Baghrali
Prasad v. U.P. isouernment, A.I.R. 1959 All. 589.
23. See, Aswini Kumar v. Arabinda from, A.I.R. 1952 S.C. 369, 383.
24. Maxwell. op. cit., p. 3. See, K.N. Jogl‹kar v. B.L. Rly. to., A.I.R. 1955 Born.
295 ; Gambhirji v. Bind Basni Prasad, A.I.R. 1955 Bonn. 369.
25. Maxwell, op. cit., p. 54. See ffori§rosnd Shiashankoc v. A.D. Diyikai, A.I.R. 1957
S.C. 57.
26. Thuppan Nambudiri v. Samara Marion, A.I.R. 1955 Mad. 34 ; B.P. Manalaxmiwala
v. i. T. Commissioner, A.I.R. 1955 Bonn. 23.
27. Narasimham, Intcrprctation of Indian Statutes, 1940) p. 265. State of Bombay v. M.D.
Chamarbaugwala, A.I.R. 1957 S.C. 699.
28. Hari Vishnu v. Ahmad Ishaguc, A.I.R. 1955 S.C. 233 ; Papanasam Lab. Union v.
State o/ Madras, A.I.R. 1959 Mad. 360.
29. H-N- Rishbud s. State of Delhi, A.I.R. 1955 S. C. 196 ; Stake of U.P. v. Manbhodhan
Lal, A.I.R. 1957 S.C. 912.
30. See, C'.C. Reaenu• Authors v. M.S. Milla, A.I.R. 1960 S.C. 218 ; Firrifone Tyre if
Auh6zr Co. v. K.P. Kcishnan, A.I.R. 1956 Bonn. 273 ; Kurbm ffuii•in v. Raiikan,
A.I.R. 1959 Bonn. 410.

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264 8TATDT0BY INTEBPBBTA]TON

sometimes mean “ any "°° and sometimes not.°'

(c) Integral farts of a statute
In England, prior to 1850 punctuation was not a part of the
statute on the ofhcial Parliament Roll, and, therefore, whatever punc-
tuation appeared in the printed copy was not regarded as authorita-
tive.°° Even though punctuation now appears in the rolls, the
English Courts have not been generally inclined to consider it as a
part of the statute,°' whereas the view of the Supreme Court of India
is somewhat more liberal in this regard :
When a statute is carefully punctuated and there is doubt
about its meaning, a weight should be given to the punctuation
. . but it certainly cannot be regarded as a controlling element
and cannot be allowed to control the plain meaning of a text

It is frequently stated that a statute, as well as the Constitution

of India, should be construed as a harmonious whole,°° and that the
entire context and all its parts may be looked to as an aid. Thus, for
example, different words used in consecutive sections of an Act are
presumably used in different senses.*' Conversely, the same word
used in different sections is presumed to be used in the same sense
throughout ,*® but the presumption has been held to be rebuttable or
“ very slight ”.°°
A proviso is an integral part of a statute, but its functional
scope is a limited one. “ It carves out an exception to the main
provision to which it has been enacted as a proviso and to no
other.”*0
An illustration inserted to clarify a section of a statute may be

31. Bul Kissan v. Gall•cter•f Gust‹rms, A.I.R. !959 Cal. 533; (“every person concerned”
means “ any person concerned “).
32. Bolaram Mulchand v. Shop Insflclar, Indore, A.I.R. 1959 M.P. 382 (” anyone ”
does mean ’ ‘ every one ”).
33. Barrow v. Wadkin, 24 Bear. 327, 53 Eng. Rep. 384 (1859) ; St«pkmsm v. D•yler,
1 B & S. 101, 121 Eng. Rep. 652 (1861) .
34. See, Maxwell, op. cit. p. 43, and cases there cited.
35. Aswini Kumar v. Arabinda Boss, A.I.R. 1952 S.C. 369, 383.
36. M.S.M. Pharma v. Sri Krishna SiMa, A.I.R. 1959 S.C. 395 ; Taluildar Singh v.
State •f U. P., A.I.R. 1959 S.C. 1012.
37. Board •f R•umm v. A.P. B«nthall, A.I.R. !956 S.G. 35.
38. Jugofiiilorc Saraf v• for Cotton to., A.I.R. 1955 Bonn. 77 ; And See W orkmm.
D.T.E. v. M‹ui g• ocnt, D.T.E., A.I.R. 1958 S.C. 353.
39. S.K. Pamlikar v. D.M. Ghana, A.I.R. 1957 S.C. 23.
40. R.N. Rons Ltd. v. Assistant Salts has C'ommiisioner, A.I.R. 1955 S.C. 765, 769,
and see, I.T. Cozrtmissioner v. I.M. BaM Ltd., A.I.R. 1959 S.C. 713.

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 8BELDON D.BLLIOTE 265

used as an aid in case of doubt," but it can neither curtail nor expand
the ambit of the section which it illustrates."
The “ long ” title and the preamble of a statute or bill are per-
missible aids to judicial ascertainment of its policy and purpose.'°
The Supreme Court of India has stated :
“ . ... it is now settled law that the title of a statute is an im- portant
part of the Act and may be referred to for the purpose of
ascertaining of its general scope and of throwing light on its
construction, although it cannot override the clear meaning of the
enactment.”'*
It is specified in an explanatory annotation to the Code of Civil
Procedure (1908) that a preamble “ can be looked at in case of doubt
or ambiguity”."
Chapter and section headings in a statute as enacted constitute
component parts of it. Although not controlling, they are regarded
as preambles, and may be resorted to if there is any doubt as to the
meaning of the context or to explain ambiguous words.'° Logically,
the same principle should apply to marginal notes, but authorities are
divided as to their use. An annotated edition of the Code of Civil
Procedure (1908) states flatly that “ Marginal notes to the sections of
an Act are not to be referred to for the purpose of construing an Act,”**
and the Supreme Court has ruled that they cannot control the body
of a section, if the latter is clear and unambiguous.' ® But where there
is doubt as to meaning, a marginal note enacted as part of a statute by
the legislature has been held to be a proper and permissible aid to
interpretation.•°
From the foregoing review of intrinsic guides and their use or
non-use by the courts, it is possible to sense a trend of liberalization
and relaxation rather than one of dogmatic adherence to rigid princi-
ples. This is particularly discernible with regard to the traditional
canons and grammatical rules and maxims, as well as to the constru-
41. Damodar v. State A.I.R. 1955 Born. 61.
42. Shambhu path v. State af Ajmcr, A.I.R. 1956 S.C. 404.
43. Biswambhar Singh v. Slate af Orissa, A.I.R. 1954 S.C. 139 ; In ri Kerala Education
Bill, 1957, A.I.R. 1958 S.C. 965.
44. Aswini Kumar v. Arabinda Boss, A.I.R. 1952 S.C. 369, 388, citing Maxwell, op.
cit. (9th ed.), p. 44.
45. (Mull a’s 9th ed. 1954), Preliminary, Sec. 1, Rule 8.
4b. Bhinka v. Charan Singh, A.I.R. 1959 S.C. 960,966 (quoting from Maskell,
op. cit. (l0th ed. ), p. 50)) ; Durgadas TuJsiroiti v. State, A.I.R. 1955 Bonn. 82.
47. (Mulla’s 9th ed. 1954), Preliminary, Sec. 1, Rule 7.
48. W.I. Theatres v. Municipal Clorp., Poona, A.I.R. 1959 S.C. 586.
49. State v. Joinnoâfioi, A.I.R. 1955 Bonn. 280. Sec Bindra. Q. cit., pp. 23 and 220.

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 266 szxzozoav zzzz’aayaazxzzox

ction of particular words and phrases. It is not quite so apparent with

regard to the component parts of a statute, but the courts of India are
iRclined to be less intransigent than the English courts in the matter
of using all the elements of an enactment—including its title,
preamble, chapter and section headings, and marginal notes—as
possible sources of enlightenment to resolve a judicial doubt as to
legislative meaning.
Extrinsic aids
(a) Historical background
As a necessary corollary to the “ mischief rule ” and to enable
the court to discern clearly the particular evil or shortcoming which
a statute was designed to remedy, it should certainly be allowed full
freedom to consider the contemporary history and circumstances in
which a statute was enacted, as well as its historical evolution in the
light of prior statutes. This policy seems to be generally recognized ,S°
and has been accorded sanction by the courts of India."
(b) Legislative proceedings, committee reports, debates
It is in the important area of legislative history in the sense of the
circumstances attending the parliamentary consideration and enact-
ment of a particular statute that the traditional British and Indian
view breaks sharply with the general American and French attitude.
As has been pointed out by Planiol,’• the French courts freely accept
resort to materials of legislative history,—“ let traoaux preparatoires
dc la loi (discussions ‹L:s Chambres, rapports, exfioses des motifs,
etc.)”— as aids to interpretation where there is doubt as to the meaning
of a statute. The American courts, and in particular, the
members of
the United States Supreme .Court (with the notable exception of the
late M• J ustice Robert H. J ackson) 58 have frequently placed great
reliance on the legislative history of a statute as an aid to its interpre-
tation.5' Legislative committee reports,°5 it s we ll it s S t£t te m nts by
50. Maxwell, op. cit., p. 20 ; Ghose and Ghosh, Interpretation of Indian Statute
(1904), p. l5l.
51. See Qwri/ii v. State of Bihar, A.I.R. I9SB S.C. 731, 741; Hariprasad Shiushankar
v. A.D. Diuikar, A.I.R. 1957 S. C. 57; Bhimaji Narasu v. Vijayasingrao Ramrao, A.I.R.
1955 Bonn. 195 ; Cherry Hosiery Mills, v. S.K. those, A.I.R. 1955 Cal. 397.
52. Planiol, Treifr rfrmrnloire dz droit civil, Vol. I, Par. 218, as quoted in Smith,
“ Interpretation in English and Continental Law ”, 9 jeer. C'oinp. kg. 3rd series
153, 1957 (1927) .
53. See his separate opinions in Schwegmann v. Colbert Distillers Corporation, 341 U.S.
384 (1951) and United Stotts v. Public Utilities Commission, 345 U.S. 295 (1953).
54. See for example, United Statts v. Great Hort hrrn R. Co., 287 U.S. 144 (1932) ;
United States v. G.I.0. 335 U.S. 1906 (1948) . See also Annotation, 70 A.L.R. 5.
55. For a leading case, see Hood Rubber Go. v. G»mmr. of Corporations 8t Taxation,
70 A.L.R. 1 (1929).

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Committ e e Spoke sme Il if l hotlse d e b I t s5^ and by witnesses appearing
as proponents of measures before committees,^° have been utilized to
resolve doubts as to statutory meaning and legislative intent. The
English view, by contrast, adheres to a firm policy against resort to p tr

l i amentary his tory i f l Co f l s1 d er i Il g t he mea ni Il g o f it S t £t t tl t e . 5

An annotation to the Code of Civil Procedure of India catego-
rically states that :
“ Proceedings of the Legislature in passing an Act are to be
excluded from consideration in the judicial construction of the
Act. 4’hese proceedings include reports of Select Committees,
Statements of Objects and Reasons attached to Bills, and de-
bates of the Legislature.”°°
A partial rationale, at least as to the inadmissibility of state-
ments made in parliamentary debates, has been given by the
Supreme Court :
“ A speech made in the course of the debate on a bill could at
best be indicative of the subjective intent of the speaker but it could
not reflect the inarticulate mental process lying behind the majority vote
which carried the bill. Nor is it reasonable to
assume that the minds of all those legislators were in accord.”°° Despite
the seemingly explicit proscription of the Code anno- tation, however,
the Supreme Court of India has not adopted a com- pletely “ closed
door ” policy as to admissibility of legislative debates,
and has cautiously vouchsafed the view that
“...while it is not proper to take into consideration the indi-
vidual opinions of Members of Parliament or Convention to
construe the meaning of the particular clause, when a question
is raised whether a certain phrase or expression was up for con-
sideration or not, a reference to the debates may be permitted...
56. Duplex Printing Press to. v. Deeming, 254 U.S. 443 (1921).
67. United States v. Spilar, 338 U.S. 217 (1949) .
58. See, Regina v. ZfcrJord Goiicp•, 3 .B.D. 697, 707 (1878) : "The statute is clear,
and the parliamentary history of the statute is wisely inadmissible to explain it if
it is not.” For a more recent case, see Attorney-General For Canada v. Hallef ‹Sf
Garry Lid., [1952] A.C. 427, which was vigorously criticised in Davis, ''Legislative
History and the Wheat Board Gase, ” 31 Can. B. Rna. 1 (1953) .
59. (Mulla’s 9th ed. 1954), Preliminary, See. 1, Rule 6. In accord as to parliamen-
tary history, see R.M.D.C. v. Union of India, A.I.R. 1957 S.C. 628; as to Report of
Indian Law Commissioners, see Mobarik Ali Ahmed v. Stall of Bombay , A.I.R.
1957 S.C. 857 ; as to debates, see Aswini Kumar v. Arabinda Bese, A.I.R. 1952
S.G. 369, 378.
60. St‹t‹ ‹ r! -c!‹hin v. Bombay to. Ltd., A.I.R. 1952 S.C. 366, 369 (quoting from
Gapalan v. State of Madras, A.I.R. 1950 S.G. 27, 73).

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268 8TATDTOBY INTEBPBBTATION

Resort may be had to these sources with great caution and only
where latent ambiguities are involved."61
But whether the ambiguity be latent or patent, it is submitted
that artificial myopia should not blur the court’s vision in reviewing
all possible sources of enlightenment as to the true legislative meaning,
intent and purpose. Moreover, the Supreme Gourt has held that a
statemcnt of objects and reasons accompanying a bill "can be referred
to for the limited purpose of ascertaining the conditions prevailing
at the time which actuated the sponsor of the Bill to introduce the
same and the extent and urgency of the evil which he sought to
remedy. ’’6° “ If the purpose of construction is the ascertainment
of meaning, nothing that is logically relevant should be excluded.”°°
Certainly, when confronted with the problem of interpreting
Article 21 of the Constitution of India some judges of the Supreme
Court were not averse to considering as “ logically relevant ” the
report of the drafting committee and the debates in the Constituent
Assembly.°' Comparing the views of the several judges on this point,
a commentator has stated :
“ These are views as to methods of interpretation which leave us
in no doubt as to the admissibility of some material originating
from the Constituent Assembly. They also hint at possible
American influence on the law of interpretation of the Constitu-
tion in India.” 6^
If there is a trend toward acceptance of the American view allowing
full access to the materials of constitutional history, the in- fluence should
be no less benign when it pertains to considering the circumstances
attendant on the enactment of a statute. Lok Sabha Debates and Rajya
Sabha Debates are as available as the Constituent Assembly Debates, and
certainly on most important measures in the Government’s program and
planning for India there are enlightening

61. H•palan v. State of Madras, A.I.R. 1950 S.C. 27, 38 (citing Craies’ on Statute Law
(4th ed.), p. 122 ; f axw«ll› op. cit. (9th ed.), pp. 28-29; and C'rawford n Statutory
Honstrustion, p. 379).
62. lvi.K. Ranganaihan v. tout. of Madras, A.I.R. 1955 S.C. 604, 608 (citing Statt
of West Bengal v. Subodli GapalB‹ue, A.I.R. 1954 S.C. 92, 104-105). And see
J. T. Commissioner v. Sodra Devi A.I.R. 1957 S.C. 832 ; T.K. Mudaliar v. V‹nkata-
chalam, A.I.R. 1956 S.C. 246.
63. Frankfurter, ‘’ Some Reflections on the Reading of Statutes ”, 47 Col. f.. Riv.
527, 541 (1947) .
64. isopalan v. State of Madras, A.I.R. 1950 S.C. 27.
65. Alexandrowicz, Constitutional D«otlopments in India (1957) p. 11. See Merillat,
“ A Historical Footnote to Bela Banerjee’s Case ”, I. J.J.£.f. 375, 392 (1959).

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 aaz noir o. szzzozz 269
and informative reports as to purpose and intent. Statutory inter-
pretation is a proper judicial function and in performing it the judges
can be trusted to evaluate the relative weight to be given all available
sources of assistance ; to distinguish, for example, between the motives
and opinions of legislators ‹pea individuals and those authoritative re-
ports and response s which reBect or direct the collective legislative
mind. Only thus can a full and fai r appraisal be assured as to “ what
remedy the Parliament hath resolved to cure the disease of Common-
wealth, and...the true reason of the remedy. ”°°
(c) Othrr statutes
Statutes in Lori mn/rrio, that is, related statutes dealing with the
same subject-matter, may be resorted to as aids to the construction
of a particular statute.°* But, if the Acts are not in dari materia, de-
cisions construing one are not controlling in the construction of
another.°* Relevant also is the principle that a statute or constitutional
provision adopted from another state or jurisdiction may be construed
in the light of decisions thereon by the courts of the state of origin. °•
“ Where a colonial legislature has passed an Act in the same terms as
an Imperial statute, and the latter has been authori- tatively construed by
a Court of Appeal in England, such con-
struction should be adopted by the court of the colony."’°
(d) Prior or contemporaneous construction
Since the legislature, if it disagrees with the judicial construc-
tion of a statute, has the power to change that construction by sub-
sequent amendment, its failure to make such change may be some
indication of legislative acquiescence in the construction given. Thus
“. .. where a word of doubtful meaning has received a clear judicial
interpretation, the subsequent statute which incorporates
the same word or the same phrase in a similar context, must be
construed so that the word or phrase is interpreted according
to the meaning that has previously been assigned to it.” "
66. 7fydon's case, w/›ro, note 6.
67. Ghoie and Ghoih, Inter,tccfafion of Indian Statutes (1904) p. 322 ; Maxwell, op.
cit. p. 33.
68. KoFt V. fiy. Cemmusii cr •f Ptl‘trc, A.LR. 1956 S.C. 559 ; and see, Cominr.
I.T. st E.P.T.v. South India Pkiuri s, A.I.R. 1956 S.C. 492, 500 “ The provisions
of the Indian Income-tax Act are not in Lori matcrio with those of the English
Income-tax statu-tee ”).
69. Bindra, op. cit., p. 191. And see, Gaumi Lal Sarin v. Jugal Zfiihi›ri, A.I.R. 1959
Punj. 265.
70. Maxwell, op. cit., p. 33 (citing Trimble v. I:fief, (1879)5 App. Cas. 342.
71. Madras Gnp ratk• v. xot£6flffo@4fli Naidu, A.I.R. 1955 Mad. 82,88 (quoting from
Borrs v. A&rdiin Simam drawling aura ''ishing Co., [1923] A.G. 402).

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270 8TATDTORY INTRRPBETAIIOW

It is an accepted principle that executive or administrative

construction of a statute by those charged with enforcing or applying
it is entitled to much weight, but may be disregarded if, in the court’s
view, there are cogent reasons for a different construction.°° Similar-
ly, long continued usage or custom under a statute may be accorded
weight by the court. As stated by Lord Campbell in a leading
English case :
“ Were the language ....obscure, instead of being clear, we
should not be justified in differing from the construction put upon
it by contemporaneous and long continued usage. There
would be no safety for property or liberty, if it could be success-
fully contended that all lawyers and statemen have been mis-
taken for centuries as to the true meaning of an old Act of
Parliament.”'°
(e) Use of dictionaries
An increasingly utilized category of extrinsic aids in ascertaining
the meaning of words used in a statute is that of dictionaries.'*
“ It is for the court to interpret the statute as best it may. In
so doing, the courts may, no doubt, assist themselves in the dis-
charge of their duty by any literary help they can find, including,
of course, the consultation of standard authors and reference to
well-known and authoritative dictionaries."'°
This latitudinarian willingness to accept outside sources for guidance
as to the meaning of particular words is by no means to be deprecated,
at least in the modern approach to judicial construction of statutes.
One could logically urge that the same liberality should extend to use
of the authoritative materials of legislative history which are often as
enlightening as any other “ literary help ” the courts could find, if
not more so.

OE€C\¥¥61OE€

To a considerable extent, ambiguities and doubts as to the mean-

ing of statutory provisions can be avoided by careful draftsmanship.
But, even with such initial care in the preparation of a bill, changes
will often occur in the course of its passage. New provisions may be

72. Bindra, op. cit., p. 170.

73. isorham v. Bishop of Exeter, 15 Q.B. 52, 73, 117 Eng. Rep. 377,385 (1850), quoted
in Moxwefi, op. cit. p. 308.
74. Swarup, Interpr i tion % Indian Statutes (1952), p. 211 ; Maxwell, op, .cit., p. 32.
75. I.T. Gommr. v. Benny KumaY, A.I.R. 1967 S.C. 768, 772 (quoting from Clamden
(Marquis j v. Inland Reainuy C mrnas. [1914] K.B. 641, 647). See also Bhogilal
Ghunilal v. Stair of Bombay, A.I.R. 1959 S.C. 356.

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 B8ELDOR D. J$LLIOT’2• 271

added, original provisions deleted, ahd words re-arranged, some-times

in haste and under pressure to meet the exigencies of securing majority
approval of the enacting body. Furthermore, even the most meti-
culous draftsmanship and the most careful legislative scrutiny cannot
completely forfend against or anticipate problems of interpretation
that arise from post-enactment issues that will confront the courts, in
applying the statute to particular situations. In a welfare State, as
the speaker of the Lok Sabha has pointed out, the administration’s
impact on the citizen’s life is all-pervasive, “ the scope of legislation
is very wide; and the number of laws that are required to be enacted
is quite large.”'6 This inevitably means that the potentiality of
unforeseen issues as to the meaning and applicability of statutory
language will be correspondingly large, and the task of the courts is
quantiatively, if not qualitatively, heavy.
Statutor y interpretation as a component of the judicial task and
function is not—and indeed in its nature it cannot be—an exact science.
It calls for the exercise of judicial discretion and judicial stateman-
ship of a high order. To aid the courts in the proper and wise per-
formance of this function, a basic rule of construction like the “ mis-
chief rule ” should be accorded preference over a too rigid adherence
to the strict letter of the law with its concomitant policy of “ letting
the chips fall where they may ”. Where the courts can see, or can
ascertain, what the legislature clearly intended, the doctrine of
“ entry otniii«s ” should not stand in the way of remedying the defect.
Rules of liberal rather than strict interpretation should be utilised
wherever there is choice, and particularly where the former would
serve to uphold a statute’s validity or to carry out the legislative pur-
pose.
Flexible use of the canons and maxims of grammatical usage,
and flexible interpretation of particular words, as already manifest
in a great and growing body of Indian decisions, should continue.
All component parts of the official text of an enacted law—its pun-
ctuation, its title, its preamble, its chapter and section headings, its
context as a whole, as well as illustrations and marginal notes——
should be regarded as legitimate guides in resolving doubt or clarifying
ambiguities.
Finally, extrinsic aids—not only background history and dic-
tionaries, but also parliamentary proceedings, reports of committees,
legislative debates, other statutes, and prior and contemporaneous
construction—should be considered as permissible sources of informa-
76. Q,uoted in the preface to this article, supra

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